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WNC courts receive much-needed help

With the passage of the new budget, the judicial district — known currently as the 30th but soon to be the 43rd — made up of Haywood, Jackson, Swain, Macon, Clay, Graham and Cherokee counties, will get one new judge and a public defender’s office that will employ 15 attorneys specifically assigned to represent indigent criminal defendants.

While many wanted to split the judicial district to ease to overall burden placed on judges who have to travel long distances daily, the measure was scratched from the budget late in the game.

The budget passed the House and Senate last week after plenty of negotiating between Republicans in the two bodies who had vastly different priorities. Once it passed, Gov. Roy Cooper said he would neither sign nor veto the budget but would let it pass into law after his 10-day veto window expires.

A new seat on the bench

Getting a new judge is a crucial step toward ensuring the courts can keep up with the increased caseload that comes with the recent surge in full-time and part-time residents, as well as visitors. It has been 17 years since a new judge was added in the state’s seven westernmost counties.

Adding an additional judge was included in drafts of the last budget but was eventually taken out before it passed, but now it’ll be guaranteed.

Chief District Court Judge Roy Wijewickrama said he believes the caseload taken on by the new judge, who will be chosen by voters during the 2024 election cycle, will alleviate much of the judicial burden that has plagued the area for years and was exacerbated by the court shutdowns early on during the pandemic.

Roy Wijewickrama

“That additional judge will help a lot right away,” he said.

In addition to whoever is elected in 2024, the judicial district will gain another new judge even sooner, as someone will be appointed to fill the vacancy left after former Judge Kristina Earwood retired on June 1 due to an emerging health concern.

Statute dictates that the local bar — made up of all licensed attorneys in the seven-county district — votes to put forward recommendations to fill the open seat. Those recommendations go to the governor, who appoints the new judge; he is not necessarily bound by any law to select one of the names provided by the bar. While it may seem likely that Cooper, a Democrat, would appoint someone from his own party, that hasn’t always been the case. In 2018, he appointed Peter Knight, a Henderson County Republican, to a district court seat.

At a bar meeting following Earwood’s retirement, the top three vote-getters were Justin Greene, of Swain County; Vicki Teem, of Graham County; and Andy Bucker, an assistant district attorney out of Sylva. Wijewickrama said he’s under the impression that the new appointment will likely be made within the next month.  

Defending the indigent

Under the new budget, there will also be one public defender to handle cases in all seven counties with an indigent defendant, meaning a defendant without the financial means to hire their own counsel. Many believe this is the most impactful change the judicial district has ever seen, considering the court-appointed list, currently made up of attorneys with private practices who take on indigent criminal defendants, has dwindled in recent years.

In an interview earlier this year, Haywood County Clerk of Superior Court Hunter Plemmons said having a public defender’s office will alleviate his office’s workload since his criminal court clerks are currently tasked with assigning criminal cases to attorneys on the court-appointed list, which sometimes requires calling several folks. But with a public defender, they won’t have to do that anymore. Beyond that, Plemmons said he believes it’s necessary to alleviate the burden in Western North Carolina. Some cases are delayed because the defense attorney has work in another county that prevents them from getting to a hearing. Plemmons said that wouldn’t happen as much.

“I think that a public defender’s office is extremely needed in Haywood and Jackson considering the shortages of attorneys, and I see how overworked the ones we have are. It would provide better access to justice for the defendants,” he said.

In a December 2021 letter from the Committee on Indigent Appointments for the Superior Court Judicial District 30B — made up of Superior Court Judge Bradley B. Letts, Wijewickrama and other stakeholders — to Indigent Defense Services Executive Director Mary Pollard, the group noted that things were getting worse. At the time that letter was written, there were no attorneys on the court-appointed list for high-level felonies in Haywood. Attorneys on that list are typically the only way to ensure adequate representation for indigent defendants who can’t afford an attorney.

On March 7 of last year, Letts wrote a letter to Pollard formally requesting a public defender’s office. In that letter, Letts references a February bar meeting, writing that a consensus was reached among attorneys present calling for a public defender’s office.

“Our local bar has made numerous efforts and, without exception, valiantly done all which could be reasonably asked of them to assist … Haywood and Jackson counties continue to lack sufficient attorneys on the court-appointed lists and in turn regularly encounter barriers in maintaining a timely and efficient system for providing sufficient and effective legal representation and related services to indigent defendants,” the letter reads.

To select a public defender, first, the bar will convene and nominate two or three individuals. Next, the Administrative Office of the Courts will come up with a nomination. Once those nominations are made, the Senior Resident Superior Court Judge makes an appointment. However, because the superior court district is split, that means Bradley Letts, the Senior Resident Superior Court Judge over Haywood and Jackson counties, and William Coward, the Senior Resident Superior Court Judge over Macon, Swain, Graham, Clay and Cherokee counties, will have to work together to appoint someone.

The office will likely end up in the county where the public defender resides, similar to how District Attorney Ashley Hornsby Welch has her office in her home county of Macon.

Mary Pollard, executive director for the state’s Indigent Defense Services Office, said she’s confident that Letts, a Democrat, and Coward, a Republican, will work together well to accomplish that task.

“Both of these judges want to select somebody who will build a great office and be very competent,” she said. “They’re both going to go about making their decision in a deliberative manner.”

Public defenders have a dedicated staff that roughly mirrors the district attorney’s. In this case, the approved budget includes one chief public defender, 14 assistant public defenders and seven administrative staff.

Sometimes, the public defender’s office will have a conflict of interest with certain defendants. In those instances, the cases will be assigned to another defense attorney not employed by that office, meaning the few attorneys who currently take on clients by being on the court-appointed list should still have plenty of work.

Pollard, who for years has advocated for a public defender’s office in the far-western counties, said the position won’t be officially created until the budget is certified, which may take a few months, but she added that the bar, AOC and the judges can begin identifying candidates before that happens. It’s possible that the office could open and begin staffing up by the new year. While it may take a while to fill all the assistant public defender slots, Pollard said once the office starts taking on a case load, the system should be more efficient.

“The new lawyers doing the work won’t be suffering under crushing caseloads. They’ll dedicate the time they need to representing clients,” she said. “Cases will move faster, and they won’t be held up because lawyers don’t have the time they need to do the work they need to do.”

No-go on the split

One item that appeared in earlier drafts of the proposed Senate budget that didn’t make the final cut would have split the district court judicial district to mirror the superior court district.

Sen. Kevin Corbin (R-Macon) said he worked with Sen. Ralph Hise (R-Mitchell) and Sen. Danny Britt (R-Robeson) to get that item, along with the extra judge and the public defender’s office, into the budget.

Sen. Kevin Corbin

There has been talk of splitting the district for decades now. However, in the wake of the coronavirus pandemic and the backlog of cases court shutdowns created, those calls intensified. Rep. Mike Clampitt (R-Swain) introduced a bill in April 2021 that would have split the district, but it died in committee.

Such was the ultimate fate for this attempt.

Despite the effort in the Senate, Corbin said the split was ultimately stricken during conference — the time during which the House and Senate negotiate specific line items — because House Speaker Tim Moore expressed that he didn’t want to even consider splitting any districts at this time.

Rep. Mark Pless (R-Haywood) said that was his doing — or undoing, as it were. Typically, if all senators and representatives in the area that will be affected by legislation or a budget item aren’t unified in their support, that item won’t make it to a vote. Pless said he hadn’t heard a good case to split the district and he hadn’t talked to any judges directly about the issue, so he made it known he wasn’t in favor of the split.

Rep. Mark Pless

However, there is evidence that the judges in the judicial district all favored a split. In early 2021, a meeting attended by all judges, some legislators and District Attorney Welch was held; Pless said he was unable to attend due to a work obligation. While neither the judges nor Welch have discussed on the record what was talked about, the legislators provided some details in interviews with The Smoky Mountain News last year.

“[The judges] expressed to us the fact that they’re overworked,” Corbin said.

“I got the impression that judges all wanted the district split,” Rep. Karl Gillespie (R-Macon) said.

There are two main arguments people make in favor of the split. First, because Haywood and Jackson counties have a greater number of voters, most elected judges are likely to come from those counties, thus creating unequal representation on the bench. With fewer judges out west, that puts more of the administrative burden — including signing search warrants at odd hours — on a smaller number of judges; there’s currently only one judge, Tessa Sellers of Clay County, west of Haywood County. Second, judges may have to drive long distances — for example, two hours from Waynesville to Murphy — on a daily basis throughout a session.

While Welch has declined to comment on her stance regarding the potential district split, and didn’t even respond to an interview request for this story, some have said that she isn’t in favor due to the fact that splitting the judicial district could possibly lead to splitting the prosecutorial district, giving her fewer counties. To that end, in an interview last year, Clampitt claimed that during his push in 2021, he’d promised her that splitting the judicial district would not lead to splitting her prosecutorial district. While other legislators have said Welch didn’t express an opinion one way or the other,

Rep. Mike Clampitt

Pless said she told him she didn’t want the district split because she felt it wasn’t necessary.

“I talked to Ashely whenever it came out in the budget,” he said. “I called her to ask her what the deal was, because she’s the one in courtrooms, and she deals with these folks all the time … I asked her if this was something she needed us to do, and she said no that it was not something she needed us to do. I asked her if she supported it, and she said, ‘no I don’t.’”

Clampitt said he was disappointed yet again to see the district wasn’t split this go-round.

“It’s a crapshoot,” he said. “You never know what will happen. You’re dealing with 170 individuals, and they all have their own interests.”

However, Clampitt was elated the see the addition of a judge and a public defender’s office. Corbin and Pless, despite their disagreement regarding the district split, both said the same thing.

“I’m thrilled we have [the new judge and public defender’s office],” Corbin said. “It’s a (combined) $4 million recurring benefit for our district that will provide good jobs but also a more efficient court system, and that was my goal heading into the budget talks. So whether the district was split or not, that was my main concern, and I’m happy with it.”