The Louisiana Supreme Court on Monday heard arguments on whether the way criminal cases are assigned in New Orleans is so prone to “judge shopping” by the District Attorney’s Office that it violates the law. The challenge to the practice was brought by the two alleged co-conspirators of former Saints safety and admitted serial rapist Darren Sharper.
At issue for the seven justices was whether the allotment system — based on the date of the crime charged — that the Orleans Parish Criminal District Court judges adopted in 2011 to evenly and randomly distribute cases among them has invited abuse by District Attorney Leon Cannizzaro’s office in cases where prosecutors can’t pin an exact date on a crime.
The DA often resorts to date ranges in such instances, most commonly in sexual assault cases with victims who report it much later.
In a 9-2 ruling in July, the state 4th Circuit Court of Appeal declared the court’s allotment system illegal and ordered that a new judge should be randomly appointed to oversee the case against former St. Bernard Parish Sheriff’s Office Deputy Brandon Licciardi and former steakhouse waiter Erik Nunez.
The two men were co-defendants with Sharper in a state rape and human trafficking case until the retired football player pleaded guilty in June to three rape counts.
Cannizzaro’s office challenged the appeals court’s ruling.
Assistant District Attorney Christopher Bowman told the high court Monday that Licciardi and Nunez needed to show, but couldn’t, that prosecutors had nefariously toyed with the date listed on the indictment in order to get the case assigned to Judge Karen Herman, a former prosecutor.
“Can the system be manipulated? No doubt, and if that’s the standard, I’ll sit down,” Bowman said. “I’m not up here arguing that Orleans has the best system,” only that it passes constitutional muster.
The system now under attack replaced one that used ping-pong balls to assign cases to judges but that allegedly could be rigged when bribes were offered to court clerks.
The court now assigns judges randomly to dates on the calendar and then allots cases to them based on the date of the alleged offense. When a case involves more than one crime, judges are assigned based on the earliest date in an indictment or bill of information.
In the Sharper case, defense attorneys say the date ranges cited by prosecutors had no apparent justification.
Joining the attack is the Orleans Parish Public Defenders Office, which represents Tyrone Brown, whose accuser came forward two years after she said Brown raped her on an unknown date in 2012. In that case, Cannizzaro’s office also set a date range for the alleged crimes, and Brown’s case then was assigned to Robin Pittman, also a former prosecutor.
Herman was assigned the Sharper case based on the date range listed for the first charge in a nine-count indictment, accusing Licciardi of trafficking in human flesh sometime between July 1 and Aug. 31, 2012.
Attorneys for Licciardi and Nunez claim a DA’s Office investigator plucked the July 1 date out of thin air after the purported victim told authorities last year that the incident “might have (been) like March or something like that.” She went on to say it “might have been like the middle of 2012.”
“He manipulated the system we’re attacking,” Licciardi’s attorney, Ralph Capitelli, argued Monday. “They can’t use these dates as a subterfuge. They have total control, and here they used that control.”
That view received a cold welcome from Justice Jeannette Knoll, a former prosecutor who argued that the specter of manipulation wasn’t enough to find the Orleans court’s system unconstitutional.
It’s not much different, she argued, from prosecutors choosing the crimes for which a suspect is charged. Knoll pointed to convicted Louisiana serial rapist Derrick Todd Lee; in his case, prosecutors decided which of several murders to prosecute, using other slayings to bolster their case.
“I don’t know of a system that could not potentially be manipulated,” Knoll said. “There’s a big difference between the district attorney’s discretion and manipulation for selecting the judge.”
Justice Marcus Clark also expressed skepticism at the argument that “susceptibility” to manipulation was enough to find the system unconstitutional.
“Our position is quite simply: Show me the harm,” Bowman argued for the DA’s Office.
“Isn’t the harm to the system?” countered Justice John Weimer.
Oddly, the Orleans Parish judges had approved in 2011, but only published this year, a rule for picking judges in cases where “the specific date of the offense is not known.” When that happens, the rule said, the date of the first report of the offense would be used.
It was unclear why the court never published that rule, and its sudden appearance left some justices flummoxed.
“You’ve got rules some people don’t know about,” Weimer noted.
The court did not say when it will rule on the case.
Follow John Simerman on Twitter, @johnsimerman.