District Attorney Leon Cannizzaro’s office on Thursday asked the Louisiana Supreme Court to take another look at the system for doling out criminal cases to Orleans Parish judges, after an appeals court this month declared it unconstitutional and ordered a new judge for the co-defendants of former Saints safety and confessed rapist Darren Sharper.
The state criminal case against the two men accused of being Sharper’s cohorts in a drugging and rape scheme — Erik Nunez and former St. Bernard Parish Sheriff’s Office Deputy Brandon Licciardi — remains in limbo as the legal tussle plays out.
In the meantime, Licciardi has pleaded not guilty to federal charges related to the alleged scheme to drug and rape women using the illicit party drug Ecstasy and drugs known by the brand names Xanax, Ambien and Valium.
Nunez, now also named in the federal indictment, is accused of getting rid of his phone to stall a federal probe.
On a 9-2 vote, the state 4th Circuit Court of Appeal found July 6 that the system Orleans Parish Criminal District Court adopted in 2011 for allotting cases to its judges violates the state constitution because of a loophole that can allow “judge shopping” by the DA’s Office in some cases.
The system, replacing an earlier lottery scheme that used ping-pong balls, allots cases by the date of the earliest charged offense. Each morning, the court picks judges randomly to take all felony cases from that date.
In the Sharper case and others where the exact date of the first crime isn’t known, it’s up to prosecutors or a grand jury to select a range of dates, the earliest of which determines which judge gets the case.
Attorneys for Nunez and Licciardi cast suspicion on the first charge in a nine-count state indictment that accused Licciardi of trafficking in human flesh between July 1 and Aug. 31, 2012.
They noted that the purported victim told investigators that she thought the crime took place in March or around the middle of that year.
That July 1 date funneled the case to Judge Karen Herman, a former prosecutor.
In her written opinion, 4th Circuit Judge Sandra Cabrina Jenkins said it didn’t matter whether Cannizzaro’s office in fact checked the calendar to secure Herman, only that prosecutors could rig the system if they wanted.
Jenkins said there is “no explicit requirement for a showing of actual manipulation of the challenged allotment procedures” to find that the way Criminal District Court does it violates the law.
Cannizzaro’s office asked the Supreme Court to hear its argument that the 4th Circuit overstepped its bounds and that the law requires the court to find that the choice of Herman actually prejudiced the case.
First Assistant DA Graymond Martin and Assistant DA Christopher Bowman said the defendants shouldn’t benefit from Licciardi’s alleged drugging of a woman to the point she couldn’t recall the exact date when she claims he delivered her to Sharper’s condo for the ex-NFL star to rape her.
“The defendants ... are attempting to use the intended and calculated consequences of their own criminal conduct to obtain a tactical advantage at trial,” they wrote.
Ralph Capitelli, one of Licciardi’s attorneys, said he will urge the Supreme Court to hold an expedited hearing.
The controversy doesn’t affect Sharper’s guilty plea last month in state court on two counts of forcible rape and a count of simple rape. The former safety also admitted to drugging allegations in federal court as part of a “global” plea deal covering rapes or attempted rapes of nine women in four states.
While Sharper has yet to be sentenced, his deal calls for him to serve another nine years behind bars.
Last week, federal prosecutors added Nunez, a former steakhouse waiter, to the federal case, claiming he impeded a grand jury investigation by destroying or throwing away a phone. Nunez is slated to appear in federal court Aug. 6.
Both Nunez and Licciardi have pleaded not guilty in state court, where the charges for each include aggravated rape counts that carry a mandatory life prison term.
No defendant has the right to a completely random allotment system, Bowman argued to the state high court.
“Our law should not be so arrogant as to demand the creation of a system that is entirely impervious to human manipulation — a system that is impossible to design,” he wrote, instead favoring a system with safeguards to prevent abuse.
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