North Carolina Lawyers Weekly
A Buncombe County judge has been publicly reprimanded by the North Carolina Supreme Court for conducting a defendant’s probable-cause hearing without the defendant’s attorney present in order to “make a point” after the attorney was late for the hearing.
Judge Edwin Clontz, a district court judge for the 28th Judicial District, had instructed the defendant’s court-appointed attorney, Roger Smith, to appear in court on the afternoon of July 18, 2018 for a probable cause hearing that Smith’s client had requested. Fifty minutes after the appointed time, Smith had still not shown, and Clontz told prosecutors to proceed with the probable cause hearing.
Even though the prosecutor appeared hesitant to go ahead with the hearing, it went ahead, and the defendant was forced to cross-examine the state’s witnesses through the barred window of a prisoner holding area while he remained handcuffed and without access to pen or paper. The defendant was also prevented from testifying on his own behalf, out of fear that he might accidentally incriminate himself. Unsurprisingly, perhaps, Clontz found that probable cause existed, and shortly thereafter Smith returned to the courtroom to find that the hearing had been conducted in his absence.
Clontz didn’t contest the factual findings made by the Judicial Standards Commission, but argued that an objectively reasonable reading of state law allows a district court to conduct a probable-cause hearing without a defendant’s counsel present.
The court flatly disagreed with Clontz’s reading of the law, pointing to the relevant statute, which states that if a defendant appears at a probable cause hearing without counsel, the judge must first determine whether the defendant has waived his right to counsel, and whether the defendant is indigent—neither of which Clontz did before proceeding with the hearing.
Clontz further argued that, even if he had misread the law, subjecting him to punishment for a legal error would create a slippery slope and extend the disciplinary provisions in the Code of Judicial Conduct to cover legal errors committed by trial judges. The court rejected this argument as well, however, finding more in the allegations than just a simple misinterpretation of the law.
“[Clontz] rushed to hold a hearing without counsel present, he failed to explore other options regarding counsel prior to commencing the proceeding, and he made comments about ‘making a point’ after the proceeding,” the court’s order reads. “This conduct demonstrated a disregard for the defendant’s statutory and constitutional rights, and that disregard undermines public faith and confidence in the judiciary.”
Unusually for an order of judicial discipline, the court’s ruling was not unanimous. Three justices argued that a public reprimand was not required to ensure the honor of the judiciary, and a letter of caution would be sufficient. The dissenting justices were Paul Newby, Anita Earls, and Mark Davis—about as disparate of an ideological coalition as could be found on the court.
Mark Hiller, John Wester and Matthew Sawchak of Robinson Bradshaw in Charlotte represented the Judicial Standards Commission. Andrew Banzhoff of Devereux & Banzhoff in Asheville represented Clontz.
The 27-page decision is In re Clontz (Lawyers Weekly No. 010-148-20). The full text of the opinion is available online at nclawyersweekly.com.
Follow David Donovan on Twitter @NCLWDonovan
