A divided state appeals court on Monday tossed out the way Orleans Parish Criminal District Court assigns some cases to judges, finding it unconstitutional, while ordering a new judge for the two co-defendants of retired Saints safety Darren Sharper in an alleged scheme to drug and rape women.
The stunning decision by the 4th Circuit Court of Appeal found that the district court’s rules for allotting criminal cases violate due process in the case of alleged crimes in which prosecutors fail to pin down a specific date.
The court allots cases to judges randomly based on the date of the alleged offense. In cases with more than one alleged crime, the date of the earliest offense determines which judge gets the case.
Often, whether in an indictment or through a bill of information, District Attorney Leon Cannizzaro’s office will state that a crime occurred sometime within a range of dates. Such ranges are used frequently in prosecutions involving sex crimes where the victim cannot specify a date, but in other cases, as well.
The appeals court agreed that the system the Orleans Parish judges set up to allot those cases allows the district attorney to manipulate the process and pick the judge who will hear a particular case.
Just what impact the ruling will have on similar cases, past or pending, in the courthouse at Tulane Avenue and South Broad Street is uncertain. But the decision, if it stands up on appeal, is sure to spark numerous challenges from both convicts and current defendants before some of the court’s judges who are viewed as prosecutor-friendly.
Rob Kazik, the court’s judicial administrator, said late Monday that he hadn’t read the ruling but would present it to the judges at a meeting Friday.
Christopher Bowman, a spokesman for Cannizzaro’s office, said the office will ask the Louisiana Supreme Court to review it.
The appeals court found that, when it comes to prosecutions that list a range of dates for alleged crimes, the district attorney can manipulate which judge gets the case by tweaking those dates.
Fourth Circuit Judge Sandra Cabrina Jenkins, writing for the majority, found that it didn’t matter whether Cannizzaro’s office deliberately chose the date so as to get Criminal District Court Judge Karen Herman in the Sharper case, only that it could have done so.
Citing prior Louisiana Supreme Court decisions, she found “no explicit requirement for a showing of actual manipulation of the challenged allotment procedures” to find that the way Orleans Parish does it violates the law.
The ruling stems from a challenge over the allotment to Herman, a former prosecutor, of the nine-count indictment handed up in December accusing Sharper, former St. Bernard Parish Sheriff’s Office Deputy Brandon Licciardi and former Morton’s Steakhouse waiter Erik Nunez of various crimes in an alleged scheme to drug women for rape.
The charges against each man included aggravated rape, a crime punishable by a mandatory life prison term. Nunez and Licciardi have pleaded not guilty.
The system the criminal court judges use was set up several years ago, replacing one using pingpong balls.
In the Sharper case, attorneys for Nunez and Licciardi cast doubt on the first charge against Licciardi, which alleges he trafficked in human flesh sometime between July 1, 2012, and Aug. 31, 2012.
Under the court’s procedures, offenses allegedly committed on the July 1 date fell to Herman, whom some defense attorneys consider a prosecution-friendly judge.
Attorneys for Nunez and Licciardi argued that the July 1 date “has no evidentiary significance whatsoever, but was instead chosen by the district attorney for strategic purposes.”
They pointed to a federal indictment against Licciardi on drug charges that made no reference to a July 2012 date, as well as police reports showing that the victim of the alleged trafficking crime placed it earlier in that year, mentioning March before settling on some unspecified time in the middle of the year.
Cannizzaro’s office insisted that prosecutors picked that range of dates without considering the judge.
The appeals court overturned a district court decision that left the case with Herman while ordering the Orleans Parish judges to come up with a new allotment procedure.
Just how the case against Licciardi and Nunez will be reassigned to a new judge is unclear.
Sharper, who last month pleaded guilty to three rape counts before Herman as part of a multiple-state “global” plea deal, did not challenge the allotment procedure. It doesn’t appear that his case will be shipped to another judge before his scheduled sentencing date in August.
Judge Paul Bonin dissented from the majority ruling, and Judge Joy Cossich Lobrano wrote a partial dissent.
Follow John Simerman on Twitter, @johnsimerman.