The 19th Judicial District Court’s rules for allotting cases to its eight criminal court judges, particularly cases with more than one alleged crime or when a specific date of offense cannot be pinpointed, are constitutionally sound, the Baton Rouge court’s chief criminal judge and the parish’s top prosecutor contend.
“Ours is as safe as one can get as far as the allotment system goes. I think we’re OK. It’s as random as you can get,” state District Judge Tony Marabella said Thursday.
East Baton Rouge Parish District Attorney Hillar Moore III stressed a day earlier that his prosecutors do not engage in “judge-shopping” or any other kind of manipulation of the 19th Judicial District Court’s criminal case allotment rules.
“It’s got to be random. We follow the rule. It doesn’t matter which judge gets it. We have good judges in Baton Rouge,” Moore said.
The comments by Marabella and Moore, the newly elected president of the Louisiana District Attorneys Association, come on the heels of a state appellate court ruling that found a problem with the way Orleans Parish Criminal District Court assigns some cases to its judges.
That ruling came July 6 in the case of two co-defendants of retired New Orleans Saints safety Darren Sharper, who is accused of plotting to drug and rape women.
In ordering a new judge for Brandon Licciardi and Erik Nunez, a divided 4th Circuit Court of Appeal said Orleans Criminal District Court’s rules for allotting cases violate due process in the case of alleged crimes in which prosecutors cannot nail down a precise date.
The appeals court found that, when it comes to prosecutions listing a range of dates for alleged crimes, the district attorney in Orleans Parish can manipulate which judge is assigned the case by tweaking those dates.
There are no current court challenges to the 19th Judicial District Court’s criminal case allotment rules, but Moore said he’s confident the rules his office follows would withstand court scrutiny.
“I think that our system is tighter than the Orleans system,” he said.
In Orleans Parish, indictments charging multiple offenses are allotted using the first day of the first offense, or the oldest offense chronologically. That practice, however, is not part of the official local rule, which is Louisiana District Court Rule 14.0, the appeals court said.
Attorneys for Licciardi and Nunez argued the current allotment procedure used in Orleans is not random and invites manipulation by the district attorney because the selection of the offense date determines the allotment to a particular section of court, or judge. There is a publicly available calendar listing the allotments for each historical date of offense.
“We find the unwritten allotment procedure, which is not reflected or in compliance with the adopted local rule, gives the district attorney the ability to manipulate the allotment of cases by alleging certain dates in the indictment,” the 4th Circuit stated.
Moore explained that his office follows the local version of Rule 14.0(A), which says all felonies and misdemeanors shall be assigned to the section of court on duty at the time the offense was committed.
The old rule used to assign cases based on the date of arrest.
“We don’t control when somebody commits a crime. They do,” Moore noted.
If the offense date cannot be determined, a judge shall notify the clerk of court in writing to randomly allot the case to a criminal section of court, Moore said. If a specific date is later determined to exist, any party can file a motion to transfer the case to the section of court on duty on the determined date.
The 19th Judicial District Court’s criminal court judges are on duty for a week at a time.
If there are multiple dates of one or more offenses that culminate in a single arrest, such that a single date of offense is not applicable or is undeterminable, the case is allotted to the criminal section on duty as of the date of the first or earliest offense noted in the arrest warrant or affidavit of probable cause, the local rule followed by the 19th Judicial District Court states.
That scenario is common in sex offense and theft or burglary cases, Moore said.
Moore said he likes to let the “earliest provable date” of offense guide him.
If a month rather than a specific date of offense is alleged, the case is randomly allotted.
Brent Stockstill, a former East Baton Rouge Parish prosecutor-turned-criminal defense attorney, said he has no quarrel with the 19th Judicial District Court’s criminal case allotment procedures.
“The accused decides. It’s when the alleged crime occurs,” Stockstill said.
“I don’t have any belief that any of the assistant district attorneys are judge-shopping,” he added. “I think it would be very hard to manipulate the system.”
The 4th Circuit in New Orleans did not find that Orleans Parish District Attorney Leon Cannizzaro’s office manipulated the system in the case of Sharper’s co-defendants. Instead, the court said the system set up by the Orleans Parish judges to allot cases involving a range of offense dates allows the district attorney to manipulate the process and essentially pick the judge who will hear a particular case.
Licciardi, a former St. Bernard Parish Sheriff’s Office deputy, is accused in one count of a multicount indictment of trafficking in human flesh between July 1, 2012, and Aug. 31, 2012. Orleans Criminal District Judge Karen Herman, a former prosecutor considered by some defense lawyers as prosecution-friendly, was on duty July 1, 2012, so the case was assigned to her.
Attorneys for Licciardi and Nunez contend the July 1 date has “no evidentiary significance whatsoever” but was picked by the district attorney for “strategic purposes.”
In a dissent, 4th Circuit Judge Paul Bonin said there was “no legal basis for ordering the reallotment of this case” because there was “no showing that the district attorney intentionally (as contrasted with merely coincidentally) selected the trial judge or even attempted to select this particular judge.”
Bonin acknowledged that a date-of-offense-based random allotment procedure is “vulnerable” to manipulation by the district attorney.
“But so is any random allotment system,” he said.
Circuit Judge Joy Cossich Lobrano stated that court allotment systems “that give the District Attorney’s Office the ‘ability to manipulate’ or which appear to give any party a ‘favored position’ do not inspire public confidence in the criminal justice system.”