The attorney for a co-defendant of Darren Sharper is crying foul, claiming that Orleans Parish District Attorney Leon Cannizzaro’s office hand-picked the judge who will handle the rape case against the former Saints All-Pro safety and two friends.
Jeffrey Smith, who represents Sharper pal Erik Nunez, claims the DA made sure Criminal District Court Judge Karen Herman would get the case by manipulating the long-awaited rape indictment that a state grand jury handed up on Dec. 12.
Nunez was named along with Sharper and former St. Bernard Parish Sheriff’s Office Sgt. Brandon Licciardi in a nine-count indictment accusing them of aggravated rape and other crimes on various dates in 2012 and 2013.
Smith will try to convince another Criminal District Court judge, Frank Marullo, on Monday to remove the case from Herman’s courtroom and order it reassigned under some fairer process.
He claims that in situations such as the Sharper case, the seemingly random method the judges set up three years ago to dole out felony cases evenly among them actually grants Cannizzaro “power to choose the judge to whom a particular case is assigned,” in violation of state law.
And that’s just what Cannizzaro’s office did, Smith argues, by choosing a nebulous range of dates for the first alleged crime in the indictment, a human trafficking count against Licciardi alone.
As chronologically the earliest alleged crime, that charge triggered the assignment of all three defendants to Herman’s section under the court’s rules.
Christopher Bowman, a spokesman for Cannizzaro’s office, declined to comment on the alleged chicanery, citing a policy against talking about open cases. However, he said, “We do not manipulate the process.”
But numerous sources, along with the policy itself, suggest it wouldn’t be difficult to do, despite a 1989 Louisiana Supreme Court ruling that called allotment methods that allow such judge-shopping “facially unfair.”
The challenge from Nunez echoes suspicions among criminal defense attorneys in New Orleans over the malleability of a system that the judges settled on in 2011 after several stabs at replacing an old bingo cage that long sat inside a clerk’s office. In that system, judges were assigned cases based on puffs of air and ping-pong balls.
But it was prone to rigging, some courthouse veterans said, depending on who was or wasn’t present when the balls popped out. In one case, a lawyer was convicted of public bribery for paying off a court clerk to allot cases to a particular section.
The system now allots cases based on the alleged date of the highest offense contained in a bill of information or indictment. In cases with more than one alleged crime, the date of the earliest offense dictates where the case goes. Each morning after midnight, the court posts on its website which court section will be assigned crimes allegedly committed on that date.
Defense attorneys have long suspected that Cannizzaro manipulates the system by choosing which offenses and defendants to include in certain prosecutions and by using mushy date ranges.
In the Sharper case, Smith questioned why the first charge against Licciardi indicates he trafficked in human flesh sometime between July 1, 2012, and Aug. 31, 2012 — an accusation that doesn’t appear to involve either Sharper or Nunez.
Offenses committed on the July 1 date fell to Section I and Herman, a former prosecutor whom the Metropolitan Crime Commission has ranked as the most efficient jurist on the criminal court bench.
Smith argues that the July 1 date “has no evidentiary significance whatsoever, but was instead chosen by the district attorney for strategic purposes.”
To back his claim, Smith noted that a separate federal indictment handed up last week alleges that Licciardi and Sharper conspired to distribute drugs “with the intent to commit a crime of rape” beginning at least as far back as January 2010.
Bowman declined to elaborate on the reason the July 1 date was listed in the indictment.
Licciardi’s attorney, Ralph Capitelli, said he too would seek to address the question once his client answers the state charges. In the meantime, a federal magistrate judge on Thursday detained Licciardi on a federal indictment that accuses the former deputy and Sharper of working in tandem to drug women with the intention of raping them. Licciardi also faces federal witness tampering counts.
“I’m very concerned about the issue, that the district attorney would have the power to maneuver the case into any court,” said Capitelli, who lost a runoff to Cannizzaro in the 2008 DA’s race.
“I see nothing of significance that I have been able to find to that July 1st date that I have been provided by the prosecution of either state or federal court.”
Sharper’s attorney in the New Orleans case, Nandi Campbell, declined to discuss the indictment specifically but said, “The way the system is set up, the DA can use the grand jury to forum shop.”
Similar date ranges often are used in the gang racketeering cases that Cannizzaro’s office has brought with much fanfare over the past few years, although many of those cases were apparently assigned to judges based on earlier charges pending against some defendants, under the court’s rules.
A date range of Jan. 1 to April 1 of this year was cited in an indictment last week accusing an investigator with the Orleans Parish Public Defender’s Office, Taryn Blume, 24, of impersonating a peace officer. That case went to Section B and Judge Tracey Flemings-Davillier, who is considered one of the more prosecution-friendly judges in the courthouse at Tulane Avenue and South Broad Street.
Just what would happen if Marullo agrees to recuse Herman and reallot the Sharper case is uncertain.
Clerk of Criminal District Court Arthur Morrell said the recusal question was assigned to Marullo using a computer-generated randomizer.
“It’s not done with a bouncing ball,” he said.
The state indictment named Licciardi, 29, alone in one count of aggravated rape, three counts of human trafficking and a count of battery related to drugging a woman passed out at a bar.
Sharper, 39, who remains behind bars in Los Angeles on similar allegations, was indicted on two counts of aggravated rape and a count of simple rape. Nunez, 27, is named with Sharper in both aggravated rape counts, along with an obstruction count.
Licciardi resigned from the Sheriff’s Office the same day both federal and state indictments came down.
Follow John Simerman on Twitter, @johnsimerman.