Another co-defendant of former Saints safety Darren Sharper, who stands accused of drugging and raping women in four different states, is alleging that local prosecutors hand-picked which judge would preside over the case.
Attorneys for former St. Bernard Parish Sheriff’s Office Deputy Brandon Licciardi this week joined in accusing Orleans Parish District Attorney Leon Cannizzaro’s office of essentially gaming the process that’s used to select Criminal District Court judges for cases in Orleans Parish.
Another defendant, Erik Nunez, has already made that charge. And the 4th Circuit Court of Appeal appears to be taking it seriously.
Fourth Circuit Chief Judge James McKay has asked the dozen criminal court judges to submit an explanation of the court’s case allotment system by May 15 and has set oral arguments for May 28. The question: Can the so-called random system for doling out criminal cases to the Orleans Parish judges be unconstitutionally gamed by the DA to choose a prosecution-friendly jurist?
Sharper, Licciardi and Nunez all face aggravated rape charges in the nine-count state indictment handed up in December. Licciardi, who has pleaded not guilty, also faces human trafficking and battery counts in the state case, accused of serving up drugged women for Sharper to rape. Licciardi and Sharper also were indicted on related drugging conspiracy counts in federal court.
Sharper has since agreed to a “global” plea deal across four states that would resolve allegations that he drugged and raped or attempted to rape nine women in Louisiana, California, Arizona and Nevada.
But Sharper hasn’t yet pleaded guilty in Louisiana. Criminal District Court Judge Karen Herman along with U.S. District Judge Jane Triche Milazzo still must endorse the agreement, which calls for Sharper to serve another nine years behind bars on a 20-year prison sentence on two aggravated rape counts in New Orleans.
Attorneys for Nunez, and now Licciardi, have questioned the allotment of the case to Herman.
In a legal filing on Wednesday, Licciardi’s attorneys, Ralph Capitelli and Brian Capitelli, echoed the argument made in December by Nunez about a system that assigns cases to courtrooms based on the date of the first alleged offense.
The first offense in the indictment, a human trafficking count against Licciardi, places a date range on the offense against a victim identified only as “J.B.” of July 1, 2012, to Aug. 31, 2012.
The July 1 date meant the case was destined for Herman, under a published calendar listing dates that were randomly assigned to the dozen judges.
Citing investigative reports provided to the defense, Licciardi’s attorneys argue that Cannizzaro’s office plucked the July 1 date out of thin air, because the victim never mentioned that date, or even the month of July, when she recounted her story of being drugged to investigators.
She said she first met Licciardi around Christmas 2011 at a nightclub, Bourbon Heat, then saw him on and off for a while before the incident, according to the legal filing.
“Maybe … it might have been like March or something like that, I, just to throw something like that, I would say March,” she said, according to the filing, later adding, “I think it might have been like the middle of 2012.”
Licciardi’s attorneys filed a full transcript of the FBI’s interview with J.B., conducted in May 2014, under seal.
They are seeking to quash the state indictment or, alternatively, to have the court’s allotment system ruled unconstitutional and have the case reallotted.
“The selection of this date by the District Attorney’s Office was made with the full knowledge of which section of court his case would be allotted to based upon that date selection,” Licciardi’s attorneys argue.
“When the decision to make this choice rests solely in the hands of the district attorney, the allotment is no longer ‘random’ ” and violates Louisiana law.
Christopher Bowman, a spokesman for Cannizzaro’s office, earlier declined to comment on the issue in response to Nunez’s legal filing, saying only, “We do not manipulate the process.”
Still, the challenge from Nunez echoes suspicions among criminal defense attorneys in New Orleans about the malleability of a system that the judges settled on in 2011 after several attempts 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 a court clerk to allot cases to a particular section.
In response to the earlier challenge by Nunez, Cannizzaro’s office defended the court’s allotment process, calling it “in line with the requirements of randomness as outlined by the Louisiana Supreme Court.”
The DA also argued that the state’s high court “has never required an allotment system to be purely random.”
At stake in the Sharper case is whether a judge will sign off on a plea deal for Sharper that some critics say veers too widely from state sentencing laws that require convicted rapists to serve 85 percent of their sentence, if not all of it.
But legal experts say that may never be an issue, because under the deal, Sharper would never fall under the purview of the state Department of Corrections unless he runs afoul of parole or probation authorities in California and Arizona once he leaves prison.
Sharper has pleaded not guilty for the time being in federal court, where he and Licciardi face a six-count indictment accusing them of drugging women with the intent to rape. Licciardi also faces witness tampering charges.
But Herman has put off Sharper’s arraignment in state court pending the resolution of his case in federal court.
Herman has reasoned that Sharper faces the highest possible sentence — life in prison — on the two aggravated rape counts he faces in Orleans Parish.
Staff writer Ramon Antonio Vargas contributed to this story.
Follow John Simerman on Twitter, @johnsimerman.