Attorney: Revoking Probation Difficult Without Conviction

DURHAM, N.C. — It's possible to get a convicted offender's probation revoked when he or she is arrested in another crime, a local defense attorney says.

But Robert Nunley says it's also difficult, and it ties up the court system.

He says it is much easier for a prosecutor to go to court for a probation revocation when there has been a conviction than it is to get someone's probation revoked with only an arrest because in the judicial system, a person is innocent until proven guilty.

"If you've been in our courts for probation violations – our system is at its capacity, if not over," Nunley said.

The Department of Correction says approximately 40 percent of people taken in by the prison system each year are brought in on probation violations.

Durham County Assistant District Attorney Mitch Garrell says the decision is a balancing act inside the courtroom.

One example is the case of Michael Anthony Hudson Jr., who has been charged with 28 crimes, including drug trafficking and being an accessory to murder.

Nine of Hudson's arrests have occurred since he was put on probation for a drug conviction three years ago. Each time, the 21-year-old was allowed out on bond.

Garrell says Hudson's case is tied to a pending murder case in which the murder suspect's case takes first priority.

"As a prosecutor, I have to make decisions all the time about what it takes to bring a case against someone who took a handgun and shot somebody in the head," Garrell said.

Because of the unresolved nature of the case, Garrell said he could not elaborate on his decision to allow bond for Hudson.

"I know what I did in this case, and I don't have any reservations," Garrell said. "I wish that I did not have to make compromises."

Cases like Hudson's raise questions about accountability for people on probation – and state lawmakers are paying attention.

"It's pretty obvious that there is a very serious problem, and it's a problem that cries out for immediate attention," Rep. Dan Blue, D-Wake, said.

Blue, who sits on a House judiciary committee, says cases like Hudson's, as well as a number of other men – including Demario James Atwater, Laurence Alvin Lovette Jr. and Cory Jiggets – are indicative of how those believed to be in violation of their probations need to be flagged the moment they are arrested.

"We have to be willing to make the kinds of investments to run a criminal justice system that's based on 21st-century technology," he said.

Department of Correction and local law enforcement officials say there is no effective communication system and no red flags that signal probation officers when an individual on probation is arrested.