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State v. Nunez

Court of Appeals of Louisiana, Fourth Circuit

July 6, 2015

STATE OF LOUISIANA
v.
ERIK NUNEZ CONSOLIDATED WITH: STATE OF LOUISIANA
v.
BRANDON LICCIARDI

Editorial Note:

This pagination accurately reflects the pagination of the original published document, though the page numbers of this document may appear to be out of sequence.

ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 522-819, SECTION " I" . Honorable Karen K. Herman, Judge.

LEON A. CANNIZZARO, JR., District Attorney, SCOTT G. VINCENT, Assistant District Attorney, PARISH OF ORLEANS, New Orleans, Louisiana, COUNSEL FOR RESPONDENT/ STATE OF LOUISIANA.

HERBERT V. LARSON, JR., SARA A. JOHNSON, THE LAW OFFICES OF HERBERT V. LARSON, JR., New Orleans, Louisiana, -AND- JEFFREY, L. SMITH, New Orleans, Louisiana, COUNSEL FOR RELATOR/ DEFENDANT, ERIK NUNEZ.

RALPH CAPITELLI, BRIAN J. CAPITELLI, CAPILTELLI & WICKER, New Orleans, Louisiana, COUNSEL FOR RELATOR/ DEFENDANT, BRANDON LICCIARDI.

(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins).

OPINION

SANDRA CABRINA JENKINS, J.

Page 106

[2015-0164 La.App. 4 Cir. 1] Erik Nunez and Brandon Licciardi each seek review of the trial court's judgment denying his motion to quash allotment. Nunez and Licciardi are named as defendants in the same multi-count, multi-defendant bill of indictment allotted to Section " I" of Orleans Parish Criminal District Court. Nunez and Licciardi each filed a motion to quash allotment, to declare the current allotment system unconstitutional

Page 107

and to order re-allotment.[1] The trial court denied both motions to quash, on January 16, 2015 and April 22, 2015, respectively.

Upon de novo review of the trial court's judgments in light of our Louisiana jurisprudence, we find the trial court erred in denying the motions to quash allotment. For the reasons set forth below, we grant the writ in part and remand to the trial court for further proceedings consistent with this Court's ruling.

On a second issue raised solely by Nunez, we deny the writ. Nunez seeks review of the trial court's January 16, 2015 denial of his motion for bond reduction. Finding no abuse of discretion in the trial court's denial of the motion for bond reduction, we deny the writ on this issue.

[2015-0164 La.App. 4 Cir. 2] FACTS AND PROCEDURAL BACKGROUND

On December 12, 2014, the grand jury returned a nine-count indictment naming Erik Nunez, Brandon Licciardi, and Darren Sharper as defendants.[2] Erik Nunez is named as a defendant in three counts of the indictment, charging him with aggravated rape of D.D. on September 23, 2013; aggravated rape of J.W. on September 23, 2013; and obstruction of justice between September 23, 2013 and February 28, 2014. Brandon Licciardi is named as a defendant in four separate counts of the indictment, charging him with human trafficking of J.B. between July 1, 2012 and August 31, 2012; aggravated rape of M.B. on February 2, 2013; human trafficking of G.D. on August 31, 2013; and human trafficking of D.D. on September 23, 2013. Nunez and Licciardi are not co-defendants on any charge in the multi-count indictment. Upon the filing of the indictment, the case was allotted to Section " I" of Orleans Parish Criminal District Court.

On December 15, 2014, Nunez appeared for arraignment and entered a plea of not guilty to the three offenses charged against him.[3] The trial court set Nunez's bond at $2,500,000.[4] That same day, Nunez filed a motion to recuse, to re-allot, and to vacate the prior order fixing bail. In his motion, Nunez sought an order recusing the trial judge in Section " I" and ordering the Clerk of Court to randomly allot the case. The case was re-allotted to Section " D" for a hearing on the [2015-0164 La.App. 4 Cir. 3] motions. On December 22, 2014, the trial judge in Section " D" denied the motion to recuse and transferred the case back to Section " I."

On January 5, 2015, Nunez filed a motion to quash allotment, to declare the current system of allotment unconstitutional, a request for re-allotment, and motion to vacate the prior order fixing bail. In this motion, Nunez challenged the constitutionality of the procedure used by the Orleans Parish Criminal District Court for allotting multi-count, multi-defendant cases. Nunez argued that the current allotment procedure violated Louisiana District Court Rule 14.0 requiring random

Page 108

allotment and due process requirements set forth by Louisiana Supreme Court jurisprudence; and Nunez moved for his case to be randomly re-allotted. In addition, Nunez argued and moved for a bond reduction. The trial court set Nunez's motions for hearing.

On January 16, 2015, after hearing testimony and arguments, the trial court denied the motion to quash allotment, finding Nunez failed to present evidence that the State actually manipulated the allotment procedure in this case. The trial court also stated it did not find the allotment procedure used by the Orleans Parish Criminal District Court to be unconstitutional. After a separate hearing on Nunez's bond, the trial court also denied Nunez's motion for bond reduction. Subsequently, Nunez filed a timely application for supervisory writ seeking review of the trial court's January 16, 2015 judgment denying both motions.

On April 16, 2015, in consideration of Nunez's supervisory writ, this Court ordered oral arguments be heard on the issue of the allotment procedure used in Orleans Parish Criminal District Court. This Court also invited the Orleans Parish Criminal District Court en banc to provide a per curiam explaining the procedure for the random allotment of cases.

[2015-0164 La.App. 4 Cir. 4] On April 22, 2015, Licciardi filed his motion to quash the indictment and/or strike the allotment system as unconstitutional and order re-allotment.[5] That same day, the trial court adopted the ruling and reasons assigned for denying Nunez's motion to quash allotment and denied Licciardi's motion to quash allotment.[6] On April 28, 2015, Licciardi filed his application for supervisory writ seeking review of the trial court's ruling denying his motion to quash allotment; he also filed a request for expedited consideration and consolidation with Nunez's writ for oral arguments on the issue of the allotment procedure in Orleans Parish Criminal District Court.

On May 26, 2015, this Court En Banc heard oral arguments in both applications for supervisory writs, solely regarding defendants' motions to quash allotment.

LAW AND ANALYSIS

Motion to Quash Allotment

The issue presented for this Court to review is whether the trial court erred in denying defendants' motions to quash allotment and in finding the current Orleans Parish Criminal District Court allotment procedure does not violate constitutional due process requirements. We review rulings on a motion to quash involving solely a question of law under a de novo standard of review. State v. Schmolke, 12-0406, p. 4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 299. The trial court's interpretation of a constitutional issue of law is also reviewed de novo. [2015-0164 La.App. 4 Cir. 5] State v. Jackson, 14-0655, p. 3 (La.App. 4 Cir. 11/26/14), 154 So.3d 722, 724; State v. Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504.

In both motions to quash allotment, defendants argue that the current allotment procedure used in Orleans Parish Criminal

Page 109

District Court violates constitutional due process requirements because it is not random and it invites manipulation by the District Attorney. Defendants argue that the District Attorney had the ability to choose the oldest date of offense to allege in the indictment with prior knowledge of the section of court to which the case would be allotted. By allowing the District Attorney the ability to choose the allotment of a case to a certain section of court, defendants argue that the Orleans Parish Criminal District Court allotment procedure directly violates Louisiana District Court Rule 14.0, requiring the random allotment of all criminal cases, and Louisiana Supreme Court jurisprudence holding that due process requires a random allotment procedure " which does not vest the district attorney with power to choose the judge to whom a particular case is assigned." State v. Simpson, 551 So.2d 1303, 1304 (La. 1989); see State v. Payne, 556 So.2d 47 (La. 1990); State v. Reed, 95-0648 (La. 4/28/95), 653 So.2d 1176; State v. Rideau, 01-3146 (La. 2001), 802 So.2d 1280.

Pursuant to La. D.Ct. Rule 14.0, applicable to all Louisiana district courts, " [t]he clerk of court shall randomly allot all criminal cases, unless an exception is established by law or these Rules." La. D.Ct. Rule 14.0 further provides that the method of random allotment is established by each judicial district court, by en banc order, and is set forth in Appendix 14.0A. The method of allotment established by Orleans Parish Criminal District Court provides in pertinent part:

The Clerk will assign daily, randomly, and by allotment among the Sections having felony jurisdiction all felony indictments, bills of information charging felony offenses and appeals from Municipal [2015-0164 La.App. 4 Cir. 6] Court and Traffic Courts and other pleadings shall be allotted among Sections A through L and the Magistrate Section. This allotment shall be conducted by the Clerk and shall be open to the public. The District Attorney shall be notified of the allotment. A computer generated random allotment system be and is hereby implemented by the Clerk's Office for all cases filed with the Clerk of the Orleans Parish Criminal District Court.

La. D.Ct. Rule 14.0, Appendix 14.0A, (as amended effective April 4, 2014).

Defendants acknowledge that the method of allotment officially adopted by the Orleans Parish Criminal District Court and set forth in La. D.Ct. Rule 14.0, Appendix 14.0A, fulfills the requirement of random allotment. Defendants argue, however, that the allotment procedure actually used in Orleans Parish Criminal District Court violates the requirement of random allotment in La. D.Ct. Rule 14.0.

To establish how cases are allotted in Orleans Parish Criminal District Court, defense counsel called Keith Johnson, the office manager for the Clerk of Court's office, to testify at the hearing on Nunez's motion to quash allotment. Johnson testified that the Clerk's office receives a daily email from the Judicial Administrator's office informing him of the computer-generated allotment of a judge for first, second, and third class felony cases and a second judge allotted for fourth class cases. Johnson stated, " that is the day of the offense that those Judges are allotted for," and each day's allotment is recorded on a publicly available calendar that includes historical dates. Johnson explained that the allotment of cases is then determined by the date of the offense indicated in an indictment. When the Clerk's office receives a bill of indictment, Johnson looks at the date of the offense and refers to the publicly available calendar indicating which section of court has been allotted for that date. When asked how he allots an indictment

Page 110

charging multiple offenses, Johnson stated that he uses the " first day of the first offense," i.e., the oldest offense chronologically. Johnson stated that the procedure [2015-0164 La.App. 4 Cir. 7] using the oldest date of offense is " part of the Judicial Administrator's office," but he did not know if it was a published rule. When shown a copy of La. D.Ct. Rule 14.0 and Appendix 14.0A, Johnson acknowledged that the use of the oldest date of offense to allot cases was not part of the official local Rule.

Defendants argue that Johnson's testimony established that the allotment procedure is subject to manipulation, because the District Attorney has the ability to select the oldest date of offense in an indictment knowing that the selection of that date determines the allotment to a particular section of court, as reflected by the publicly available calendar listing the allotments for each historical date of offense. In this case, defendants point out that their multi-count, multi-defendant indictment was allotted to Section " I" based on the oldest date of offense alleged in only one count of the indictment, charging Licciardi with human trafficking from July 1, 2012 to August 31, 2012. Defendants then argue that there is no evidentiary significance to the starting date of July 1, 2012, or for that entire range of dates; [7] and, rather than not allege any date of offense,[8] the District Attorney chose this particular range of dates for its own purposes knowing which section of court would be allotted this case. Defendants argue the District Attorney was afforded the ability to manipulate the allotment of this case by the current Orleans Parish Criminal District Court allotment procedure; and any such allotment system that vests such power in the District Attorney violates due process requirements [2015-0164 La.App. 4 Cir. 8] and is " flatly prohibited by law" pursuant to the Louisiana Supreme Court's decision in State v. Simpson and its progeny.

In Simpson, the Louisiana Supreme Court held:

Due process of law requires fundamental fairness, i.e., a fair trial in a fair tribunal. To meet due process requirements, capital and other felony cases must be allotted for trial to the various divisions of the court, or to judges assigned criminal court duty, on a random or rotating basis or under some other procedure adopted by the court which does not vest the district attorney with power to choose the judge to whom a particular case is assigned. (citations omitted).

551 So.2d 1303, 1304 (La. 1989). In that case, the Court found that the allotment procedure adopted by the 15th Judicial District Court violated constitutional due process requirements because the District Attorney's office chose the judge to whom the case was allotted. The Court declared the allotment procedure to be " facially unfair" and remanded the matter to the 15th Judicial District Court with instructions to adopt a procedure by which the District

Page 111

Attorney's office could not select the judge.

The Louisiana Supreme Court reaffirmed its holding in Simpson by striking down allotment rules and procedures in several subsequent cases. In State v. Payne, 556 So.2d 47, 48 (La. 1990), the Louisiana Supreme Court found the allotment rules adopted by the 21st Judicial District Court violated due process by allowing the District Attorney to make unchecked motions for trial dates knowing in advance which judge would be presiding on such dates. In State v. Reed, 95-0648, p. 1 (La. 4/28/95), 653 So.2d 1176, the Court struck down the allotment procedure of the 19th Judicial District Court that allotted each indictment filed by the District Attorney to the " next judge up" in a numerical rotation and eliminated judges once they were allotted a case. The Court found the procedure " not only invites manipulation of allotments, but also violates the court rule which requires [2015-0164 La.App. 4 Cir. 9] random allotment of each case." Id. The Court then held that defendant was entitled to the enforcement of the court rule requiring random allotment " without proving actual manipulation in his particular case." Id. (emphasis in original). Again in State v. Rideau, 01-3146, p. 1 (La. 11/29/01), 802 So.2d 1280, the Court found the allotment of capital cases in the 14th Judicial District Court could be improperly influenced or manipulated. There, the District Attorney had the ability, by process of elimination, to know which judge would be allotted the next numbered capital case, and the District Attorney had the power to assign the case numbers for capital indictments. In Rideau, as in Payne and Reed, the Court found the allotment procedures in place violated the principles adopted in Simpson, and remanded the case to the district court to adopt random allotment procedures in line with Simpson and to re-allot the case.

Relying on this line of jurisprudence, defendants argue that the Orleans Parish Criminal District Court allotment procedure violates the due process requirement of random allotment and is facially unfair; because, the District Attorney has the ability to determine, even choose, the section of court to which a case will be allotted based on the District Attorney's selection of the oldest date in the indictment. Defendants further argue that showing the allotment system is subject to manipulation is sufficient proof of the violation of due process requirements; and pursuant to the holdings in Simpson, Payne, Reed, and Rideau, defendants argue they are entitled to enforcement of La. D.Ct. Rule 14.0 requiring random allotment without showing actual manipulation of the allotment in this case.

In response, the State argues that this method of allotting cases by the oldest date-of-offense was upheld by the Louisiana Supreme Court in State v. Cooper, [2015-0164 La.App. 4 Cir. 10] 10-2344 (La. 11/16/00), 50 So.3d 115. Citing Cooper, the State argues that due process requires a fair trial and fair tribunal; but due process does not entitle a criminal defendant to select the manner in which the judge is selected for his case and no defendant is entitled to a purely random allotment. The State argues that defendants can only prove a due process violation by showing some prejudice suffered as a result of an error in the selection of the judge; and here, defendants have not shown any prejudice. While acknowledging that the District Attorney has the authority to allege the date or range of dates included in an indictment, the State points out that the District Attorney does not participate in the assignment of judges for a particular date. The State argues that defendants failed to prove any actual manipulation of the allotment procedure by the District Attorney in this case, and,

Page 112

consequently, failed to prove a due process violation pursuant to the holding in Cooper.

In Cooper, the Louisiana Supreme Court reviewed and upheld the allotment method adopted by the 15th Judicial District Court that was composed of three procedures for allotting criminal cases in each of the district's three parishes. Under this method, the district court established multiple criminal tracks for each parish; and each division of court elected from within that parish was randomly assigned one of the criminal tracks for a designated time period. Cooper, 10-2344, pp. 6-8, 50 So.3d at 121-23. Then, in two of the parishes (Lafayette and Vermillion), the date of a criminal offense determined the allotment of the case to the track, and thus division of court, assigned for that time period. Id. Defendant challenged this method of allotment by arguing that it violated the random allotment requirement of La. D.Ct. Rule 14.0 and constitutional principles adopted in Simpson.

[2015-0164 La.App. 4 Cir. 11] In examining the allotment method adopted by the 15th Judicial District Court, the Louisiana Supreme Court stated its well-established position that " proper allotment of a case for adjudication implicates due process concerns." The Court quoted from Simpson and Reed and synthesized the holdings, stating, " we hold that a rotation or allotment system is not acceptable if the event which triggers application of the system is dependent upon an action taken by the district attorney." Cooper, 10-2344, p. 10, 50 So.3d at 124, citing State v. Huls, 95-0541, p. 7 (La.App. 1 Cir. 5/29/96), 676 So.2d 160, 167. Applying these principles in Cooper, the Court found that the 15th Judicial District Court had adopted a local method of allotment as allowed under La. D.Ct. Rule 14.0 and that did not conflict with the broad parameters of the uniform rule. The Court stated, " [i]n our goal of ensuring due process is provided to litigants, we have never required an allotment system which was purely random." Then, in considering defendant's claim that the due process requirements set forth in Simpson required his case to be allotted by a " totally random system," the Court found that defendant had not raised any allegation that the district attorney had manipulated the allotment of his case and " no basis for the inference that the state was in any way involved in that process." Cooper, 10-2344, p. 20-21, 50 So.3d at 131. The Court rejected defendant's claim that the use of the 15th Judicial District Court's procedure to allot his case was a violation of due process.

Although the Louisiana Supreme Court rejected the due process argument presented by the defendant in Cooper, the Court expressly upheld the due process principles adopted in Simpson and Reed. The Court, however, did not expressly hold that a showing of actual manipulation of an allotment procedure, and resulting prejudice to defendant, is necessary to prove that an allotment procedure violates [2015-0164 La.App. 4 Cir. 12] due process. In Cooper, the Court noted that defendant made no allegation that the allotment system could be manipulated by the District Attorney; he alleged only that there was no rational basis for failing to implement a totally random system. 10-2344, p. 20, 50 So.3d at 131. By contrast, the defendants here allege that the District Attorney has the power to manipulate the allotment, or " choose the judge," by selecting the oldest date of the offense in the multi-count indictment.

Specifically, defendants have alleged that there is no evidentiary basis for the selection of July 1, 2012 as the starting date for the offense charged against Licciardi in Count 1. In Licciardi's motion to quash, he argues that the manipulation of

Page 113

the allotment is evident from the State's discovery responses. In response to his motion for bill of particulars requesting the State to identify the act or acts occurring on July 1, 2012, the State responded that the date and time were not essential to the allegation of the offense in the indictment pursuant to La. C.Cr.P. art. 468. Licciardi also attached an investigative report, from the State's discovery materials, that includes statements from the alleged victim regarding the alleged criminal offense; he argues that the report does not reveal any basis for an alleged date of offense of July 1, 2012. Defendants argue that this is a sufficient showing that the Orleans Parish Criminal District Court allotment procedure allows the District Attorney to manipulate the allotment of cases; and that no showing of actual manipulation in this particular case is necessary to prove a violation of due process.

We find merit in defendants' argument. In our review of Louisiana Supreme Court jurisprudence addressing the issue of allotment in pre-trial challenges, we find no explicit requirement for a showing of actual manipulation of the challenged allotment procedures in order for the Court to find a violation of uniform and local [2015-0164 La.App. 4 Cir. 13] court rules requiring random allotment and due process requirements as set forth in Simpson. See Reed, 653 So.2d at 1176 (" Relator is entitled to enforcement of the court rule without proving actual manipulation in his particular case." ); see also Huls, 95-0541, p.7, 676 So.2d at 167 (" When the issue of improper allotment has been raised in pre-trial setting, no showing of prejudice has been required for a defendant to successfully raise the issue and to have his case re-allotted under a proper allotment system." ). In our de novo review of the instant writs in light of applicable jurisprudence, we find the defendants have shown that the procedure used in Orleans Parish Criminal District Court for allotting criminal cases where the offense did not occur on a specific date violates the principles of due process as upheld by our Louisiana Supreme Court. Under the circumstances presented, we find the unwritten allotment procedure, which is not reflected or in compliance with the adopted local rule, gives the District Attorney the ability to manipulate the allotment of cases by alleging certain dates in the indictment. Consequently, we find the trial court erred in denying defendants' motions to quash allotment. In addition, we find that the defendants, Nunez and Licciardi, are entitled to reallotment of their respective cases in a manner that complies with La. D.Ct. Rule 14.0 and the due process principles adopted in Simpson.

Nunez's Motion for Bond Reduction

In a separate issue raised solely by Nunez, he argues that the trial court erred in denying his motion to vacate the order increasing his bond from $400,000 to $2.5 million. Nunez contends that the trial court abused its discretion in increasing the bond to an excessive and unreasonable amount and that the trial court failed to consider the factors set forth in La. C.Cr.P. art. 334 for determining the amount of bail.

[2015-0164 La.App. 4 Cir. 14] Prior to the grand jury indictment charging Nunez and the other two defendants, Nunez was arrested pursuant to an arrest warrant for two charges of aggravated rape. When Nunez first appeared before the trial court on those charges, the trial court set his bond at $400,000. After the filing of the grand jury indictment charging Nunez with two counts of aggravated rape and one count of obstruction of justice, the trial court increased the bond amount. At the hearing on Nunez's motion for bond reduction, the trial court

Page 114

noted that the increased bond amount was set at the same amount as the bond for the other defendants charged in the indictment. The trial court also noted that Nunez was charged with two crimes of violence that could result in life sentences. At the conclusion of the hearing, the trial court also stated it would be willing to revisit Nunez's bond at a later time.

Upon review of the trial court's denial of Nunez's motion for bond reduction, we find no abuse of discretion and deny Nunez's writ on this issue.

CONCLUSION

For all of the foregoing reasons, we grant the writ on the consolidated issue of the allotment of defendants' cases and we reverse the trial court's judgments denying defendants' motions to quash allotment. Finding that the allotment procedure used in this case violates due process principles set forth by the Louisiana Supreme Court, we remand this matter to the Orleans Parish Criminal District Court for the adoption of allotment procedures that comply with the law and jurisprudence discussed herein. We further order the Orleans Parish Criminal District Court to re-allot both defendants' cases in accordance with such proper allotment procedures.

[2015-0164 La.App. 4 Cir. 15] On the second issue raised solely by Nunez, we find no abuse of discretion in the trial court's denial of his motion for bond reduction and we deny the writ.

WRIT GRANTED IN PART; WRIT DENIED IN PART

CONCUR

TOBIAS, J., CONCURS.

I respectfully concur. I write separately only to state that I do not find that the proper procedural vehicle to challenge the allotment of a criminal case is a motion to quash. Rather, in my view, the proper procedural vehicle is a mere motion to reallot. The motions filed in this case, although phrased as quashal in nature, must be read to be merely as motions to reallot because the case was not randomly allotted pursuant to State v. Simpson, 551 So.2d 1303 (La.1989) and its progeny. See also State v. Brown, 15-0122 (La.App. 4 Cir. 7/6/15), __ So.3d __.

LANDRIEU, J., CONCURS WITH REASONS

I agree with the majority that the allotment process in the instant case violated the defendant's right to due process. I write separately to note that the Louisiana Supreme Court jurisprudence distinguishes between a defendant who challenges the allotment process prior to trial and one who challenges the allotment of his case on appeal, post-conviction. A defendant challenging a process of random allotment prior to trial need not prove actual prejudice but need only establish that the prosecuting authority has the ability to influence the allotment process. See, e.g.: State v. Reed, 95-0648 (La. 4/28/95), 653 So.2d 1176 ( per curiam ); State v. Payne, 556 So.2d 47 (La.1990);

Page 121

State v. Simpson, 551 So.2d 1303 (La.1989) ( per curiam ). See also, State v. Huls, 95-0541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160.

I further agree with the concurring opinion of Judge Tobias that the proper procedural vehicle by which to challenge the allotment of a criminal case is not a motion to quash.

DISSENT

[2015-0164 La.App. 4 Cir. 1] BONIN, J., DISSENTS IN PART WITH REASONS.

I dissent from the majority's holding on the principal issue presented which is whether the current allotment procedure violates constitutional due process such that the defendants, Messrs. Nunez and Licciardi, are entitled to reallotment of their case.[1] A defendant enjoys no constitutional right to the " random" allotment of his case. And, here, because there is no showing that the district attorney intentionally (as contrasted with merely coincidentally) selected the trial judge or even attempted to select this particular judge, there is no legal basis for ordering the reallotment of this case. I explain my view in greater detail below.

I

The defendants initially moved to recuse this particular trial judge on the ground

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that she was not randomly allotted their case. The recusal motion was [2015-0164 La.App. 4 Cir. 2] referred to a different judge of this multi-judge specialized criminal court. [2] The district judge to whom the motion to recuse was referred, apparently finding no grounds for recusation under La. C.Cr.P. art. 671, denied the motion. No application for supervisory relief was sought from that ruling and thus we can only be satisfied that this particular trial judge is not, inter alia, " biased, prejudiced, or personally interested in the cause to such an extent that [she] would be unable to conduct a fair and impartial trial." La. C.Cr.P. art. 671(A)(1).

The operative basic requirement of due process with which we are here concerned is that there be " [a] fair trial in a fair tribunal ...." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Notably, " due process does not entitle a criminal defendant to selection of the manner in which the judge of that tribunal is designated." State v. Cooper, 10-2344, p. 20 (La. 11/16/10), 50 So.3d 115, 131. Thus, " [a] criminal defendant does not have the right to have his case heard by a particular judge, does not have the right to have his judge selected by a random draw, and is not denied due process as a result of an error in a particular judge's selection unless he can point to some resulting prejudice ." Id., pp. 20-21, 50 So.3d 115, 131 (emphasis added).

There is no suggestion or allegation, confirmed by the rejected motion to recuse this trial judge, that this trial judge will " not hold the balance nice, clear and true between the State and the accused ...." Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L.Rep. 236 (1927). With respect to assignment or disqualification of a judge, this is all that the Constitution requires. See Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 886-87, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). Consequently, the defendants' argument (accepted by the majority as the sole basis for its decision) that the allotment system violates the [2015-0164 La.App. 4 Cir. 3] requirements of Due Process holds no water and cannot justify the assignment of this case to another trial judge.[3]

II

There is no statutory provision requiring random allotment of cases in multi-judge district courts. Thus, the only other basis on which to order a new allotment procedure in this case would that the procedure employed at the Criminal District Court, as described in testimony by the deputy clerk charged with allotment of cases, violates La. Dist. Ct. R. 14.0 and fails to comply with the written Appendix 14.0A, which is the applicable published local rule, the remaining sources of law. But notably the majority here and in Brown [4] does not decide this matter as a violation of Rule 14.0 or even the local Appendix 14.0A.

Rule 14.0, like the other Rules for Louisiana District Court, was adopted and promulgated under the Supreme Court's power to " establish procedural and administrative rules not in conflict with law" as well as its " general supervisory jurisdiction over all other courts." La. Const. art. V, § 5; Comment (a), La. D. Ct. Rule 1.0. See also Cooper, 10-2344, pp. 5-6, 50 So.3d at 121-22. Rule 14.0 generally mandates the random allotment of all

Page 116

criminal cases but entrusts to the judges of the individual districts the method of random allotment. Appendix 14.0A(1) for the Criminal District Court provides that " The Clerk will assign daily, randomly, and by allotment among the Sections having felony jurisdiction all felony indictments, bills of information charging felony offenses, ...." This local rule further provides that " [a] computer generated random allotment system be and is hereby implemented by the Clerk's Office for all cases filed with the Clerk of the Orleans Parish Criminal District Court."

[2015-0164 La.App. 4 Cir. 4] According to the deputy clerk, albeit not clear from the local rule itself, the judges adopted a system of random allotment based upon the date-of-the-offense. This is the same basis for random allotment in Vermilion and Lafayette parishes. See Cooper, 10-2344, p. 10, 50 So.3d at 124.[5] Also, not clear from the local rule but based upon the deputy clerk's testimony, is the practice, similar to that provided in the local rules for Vermilion and Lafayette parishes, of using the date of the earliest offense charged in the bill to determine the allotment. See Cooper, 10-2344, p. 6, 50 So.3d at 122, n. 19.

In their en banc Per Curiam filed with us, the judges of the Criminal District Court informed us that, after a period of trial-and-error, this specific allotment procedure was adopted, after consultation with the National Center for State Courts, at the joint request of the district attorney and the district public defender in order to facilitate what is sometimes called " vertical" prosecution and defense. See Cooper, 10-2344, p. 13, 50 So.3d at 126 (" We have established a framework in the uniform rules whereby district judges may tailor their case allotment plans in ways that will take into consideration the unique characteristics of their judicial district and the resources available to them." ).

Also not apparent from the local rule and not especially clear from the deputy clerk's testimony is the practice of the district court's Judicial Administrator's office supplying the Clerk's office with the section which correlates to the date-of-the-offense. But there is no argument that this " step" in the allotment is not random. Moreover, in the exercise of its general supervisory and rule-making authority, it is worthwhile to note, that the Louisiana Supreme Court has " never required an allotment system which was purely random." See Cooper, 10-2344, p. 13, 50 So.3d at 126 (emphasis supplied).

[2015-0164 La.App. 4 Cir. 5] The defendants do not claim, it must be remembered, that the date-of-the-offense is not sufficiently random to satisfy the Supreme Court's insistence, as required by uniform Rule 14.0, of random allotment. Thus local rule 14.0A's repetition of the requirement of random allotment is not, strictly speaking, breached.

III

Of course, a date-of-the-offense-based random allotment procedure is vulnerable to manipulation by the district attorney. But so is any random allotment system. This is inherent in the district attorney's vast discretionary prosecutorial authority. See La. Const. art. V, § 26(B) (Providing that " a district attorney...shall have charge of every criminal prosecution by the state in his district." ). Indeed, " [t]he constitutional role of the district attorney is incipient to the criminal process; his decision to file charges in a court of criminal jurisdiction is the event which incites a trial court's exercise of that jurisdiction." Bd. of Comm'rs of Orleans Levee District v. Connick, 94-3161 (La. 3/9/95), 654 So.2d 1073, 1080

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(emphases added). See also La. C.Cr.P. art. 61 (Specifically providing with limited exceptions that " the district attorney has entire charge and control of every criminal prosecution instituted and pending in his district, and determines whom, when, and how he shall prosecute." ); State v. Hayes, 10-1538, p. 5 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 13. Thus, any random allotment system is vulnerable to a district attorney's " manipulation" because he can make so many choices which affect the allotment, including refusal to prosecute, joinder of offenses, joinder of defendants, subsequent joinder of a co-defendant after allotment, and on and on.

Consequently, in my view, the issue cannot be whether the specific allotment process being challenged is vulnerable to such manipulation. Instead, the issue must be whether or not the specific allotment process is designed to afford the district attorney the routine and uncontrolled ability to choose a specific [2015-0164 La.App. 4 Cir. 6] trial judge. If the allotment system allows for such routine ability, then a defendant need not show any actual manipulation. But, if -- as here - the allotment system is not designed to allow such ordinary manipulation, then a defendant must demonstrate that the district attorney actually manipulated the judge-selection by his charging decision.

IV

The insight as expressed by Judge Lobrano in her concurring opinion is very helpful. Our objection to the ability of a prosecutor selecting the trial judge for a specific case arises neither from a violation of Due Process nor from a breach of the Supreme Court rule, but rather from our own professional sensibilities. See Concurring Opinion, Slip Op. p. 3 (Lobrano, J. concurring). Judge Lobrano points to our professional conduct codes, which are promulgated under the Supreme Court's authority and are designed as she writes to " maintain public confidence in the judiciary, legal profession, and criminal justice system and to avoid even the appearance of impropriety or favoritism that would undermine public confidence in the integrity and impartiality of the judiciary." Id. See also Caperton, 556 U.S. at 890 (" Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution." ).

Thus, without any doubt, if the evidence in this case had shown that the district attorney actually selected the trial judge or actually manipulated the allotment process, then I too (and I am certain the trial judge herself) would require assignment of a different judge so as to vindicate " public confidence in the integrity and impartiality of the judiciary." But, of course, that is not what was shown here.

[2015-0164 La.App. 4 Cir. 7] V

The defendants' claim merely that the judges' selection of the date-of-the-offense as the reference point for assignment of the judge to a case renders the allotment process vulnerable to manipulation by the district attorney. And, as discussed in Part III, ante, of course it does. But here their claim must be viewed in context.

In their en banc Per Curiam, the judges of the Criminal District Court reported that of the more than 20,231 cases allotted since the current allotment system was implemented in 2011, challenges to the randomness of the allotment have been urged in only two cases, this one and one other.[6] Because the system as devised by

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the judges allows anyone, including especially the district attorney, to determine the judge to whom a case will be assigned based upon the historical date of the commission of the offense,[7] the defendants in this case allege in their motion to quash that the district attorney selected Sunday, July 1, 2012 for " strategic purposes" as that date, according to the defendant, " has no evidentiary significance whatsoever" [8] so that he " can do precisely what he ... is prohibited from doing: choosing the judge to whom the particular case is assigned." [9] Not surprisingly, however, the motion does not venture further into a description of why the district attorney would choose this particular judge over the other eleven district judges to advance any advantage, or how the selection of this particular judge disadvantages the defendants. And, notably, the defendants do not attempt to prove anecdotally or statistically that this particular judge favors the district attorney or is allotted a [2015-0164 La.App. 4 Cir. 8] disproportionate number of cases such as the defendants' where the district attorney can exercise his charging authority to result in the selection of a particular judge. And, most importantly, the defendants do not show that the district attorney's exercise of his charging decision was an abuse of his power that actually violated their constitutional right to a fair trial. See Hayes, 10-1538, p.9, 75 So.3d at 14.

My reading, however, of the precedents relied upon by the majority to excuse the necessity either of proof of actual manipulation by the district attorney or of resulting actual prejudice to the defendants does not support the majority's decision.

A

State v. Simpson involved the disreputable system by which the district attorney actually chose the judge who would preside over criminal cases. 551 So.2d 1303, 1304 (La. 1989) (on rehearing) (per curiam). In a broadly worded opinion, which preceded the exercise of its rule-making authority in the uniform district rules, the Supreme Court did state that " To meet due process requirements, capital and other felony cases must be allotted for trial to the various divisions of the court, or to judges assigned criminal court duty, on a random or rotating basis or under some other procedure adopted by the court which does not vest the district attorney with power to choose the judge to whom the particular case is assigned." Id. (emphasis added).

Simpson, as the majority correctly points out, was followed first by State v. Payne which rejected a system of judge-selection because the district attorney " may still have the power to select judges by making unchecked motions for certain trial dates." 556 So.2d 47 (La. 1990) (per curiam) (emphasis added). Payne was followed by State v. Reed, which rejected a system based upon the " next judge up" because " [s]uch a system not only invites manipulation of [2015-0164 La.App. 4 Cir. 9] allotments, but also violates the [local] court rule which requires random allotment of each case." 653 So.2d 1176

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(per curiam) (emphasis added). Reed introduced the specific notion that a defendant " is entitled to enforcement of the court rule without proving actual manipulation in his particular case." Id. (emphasis in original).

These cases all involved allotment systems in which the district attorney was routinely able to select a particular judge for a particular criminal case and in all of these cases the Supreme Court did not require any particular defendant to demonstrate that district attorney actually manipulated the selection of the judge for his case. But here we are not dealing with a selection or assignment system that routinely allows for manipulation of it by the district attorney. The run-of-the-mill criminal cases simply are not subject to the district attorney's manipulation of the date of the offense and that is why, in my view, the defendants are not entitled to relief in the absence of demonstrating actual prejudice to their case.

B

The majority, of course, also relies on State v. Rideau, another pre-Rule 14.0 case, where the Supreme Court decided that the selection of a particular judge in a death penalty case could be " improperly influenced by the District Attorney" by waiting to file the indictment until he could know by the process of elimination who was the last judge remaining without a capital case allotment.[10] 01-3146, p. 1 (La. 11/29/01), 802 So.2d 1280 (per curiam). It is an extreme instance of possible manipulation of random allotment and may be somewhat explained away under the notion that death penalty cases are subjected to greater scrutiny because " death is different." See, e.g., California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983); Gregg v. Georgia, 428 U.S. 153, 193-95, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See also Cooper, 10-2344, p. 22, 50 So.3d at 132 n. 52 [2015-0164 La.App. 4 Cir. 10] (" There are too many special procedures and rules inherent in a capital case to find one similar to a regular felony criminal case." ). Cf. State v. Rideau, 01-3146, p. 2 (La. 11/29/01), 802 So.2d 1280 (Knoll, J., dissenting) (" I fail to see how this simple knowledge of what judge is left amounts to a violation of random allotment." )

And Rideau would be most problematic for my view because it seems to allow for relief from the initial allotment despite the otherwise " random" allotment of all the earlier allotted capital cases. But Rideau was followed by State v. Broussard, a decision which the majority does not address in its analysis, and which in my view applies to the facts of this case and clarifies the defendants' burden. 03-1340 (La. 6/26/03), 852 So.2d 978 (per curiam).[11]

Broussard deserves careful attention.

C

Broussard considered the logical extension of a Rideau -situation. The allotment of capital cases in Lafayette parish in 1999 was a mixed rotational/random system. See Broussard, 03-1340, p. 1, 852 So.2d at 978. Judges were assigned by random draw, but a particular judge was deleted from the random allotment after he was assigned a case and until all judges had

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been assigned one case. See id. Thus, anyone, including especially the district attorney, could determine which of the judges remained available for assignment of a capital case and which had already been assigned one. See id. As a practical matter, of the eleven judges at the time of the defendant's allotment, only one had been deleted from the pool of judges and the defendant's case was randomly allotted to one of the remaining ten judges. See id.

[2015-0164 La.App. 4 Cir. 11] Of course, under an extreme application of Rideau, which the Third Circuit employed, it could be said that the allotment system invited manipulation by the district attorney. But the Supreme Court rejected this view, finding that " [t]hese circumstances excluded any reasonable possibility that the district attorney's office was directly involved in the allotment of respondent's case." Id. Then, it held, that " because the district attorney's office had no direct role in the allotment procedure in violation of Simpson and Rideau, and because respondent has shown no actual prejudice to his due process rights, we find no basis for ordering reallotment of the present case." Id. (emphasis added).

Like in Broussard, here we do not have an allotment system designed to afford the district attorney a direct role in selecting a judge. And, just as in Broussard, 03-1340, p. 1, 852 So.2d at 978 n. 1, the current system employed in Criminal District Court could undoubtedly be improved upon. But " [o]ur inquiry here is not to determine whether the district judges selected the 'best' or 'easiest' method of allotting criminal cases." Cooper, 10-2344, p. 13 (La. 11/16/10), 50 So.3d at 126.

VI

The judges en banc of the Criminal District Court have implemented a random allotment system which complies with the requirements of uniform Rule 14.0. The defendants have only shown that in occasional and surely not routine cases the implemented system is vulnerable to manipulation by the district attorney and would allow him to engage in the prohibited practice of " judge-shopping." [12] But apart from a not very strong inference (that this date coincides with this judge's assignment just as any date will coincide with some judge's assignment), without any factual corroboration, the defendants have not shown that the district attorney likely, much less actually, abused his prosecutorial discretion to engage in [2015-0164 La.App. 4 Cir. 12] judge-shopping. Thus, when we have a trial judge already assigned to the case, her impartiality actually confirmed by the rejection of a motion to recuse, and no showing whatsoever in this non-capital case that these defendants will not receive a fair trial in a fair tribunal, I would not order of the reallotment of this case and accordingly dissent.

[2015-0164 La.App. 4 Cir. 1] LOBRANO, J., DISSENTS IN PART, CONCURS IN PART, AND ASSIGNS REASONS.

I respectfully dissent in part and concur in part.[1] I would stay these proceedings to allow the Louisiana Supreme Court the opportunity to address a limited systemic problem in the allotment procedure employed in Orleans Parish Criminal District Court that I find does not rise to the level of an individual due process violation on the part of the defendants, Erik Nunez and Brandon Licciardi, but nonetheless undermines the public's confidence in the criminal justice system.

I agree with the majority that the allotment procedure employed in this case gives the district attorney's office the " ability to manipulate" the allotment procedure. However, I part ways with the majority in that I find that the allotment procedure did not violate these defendants' individual due process rights because [2015-0164 La.App. 4 Cir. 2] the defendants failed to show " actual manipulation" by the district attorney's office and thus failed to establish actual prejudice. Therefore, I agree with the dissent of Judge Bonin that, based on a due process analysis, the defendants should be denied relief. Nonetheless, I find that the allotment procedure presently employed in Orleans Parish Criminal District Court creates an appearance of impropriety and favoritism in certain types of criminal cases. Based on the paramount importance of maintaining public confidence and integrity in the judiciary, legal profession and criminal justice system, I would stay these proceedings to allow the Louisiana Supreme Court to address this issue.

The Louisiana Supreme Court, not the courts of appeal, has the sole authority to provide guidance to the lower courts to administratively address local allotment systems. Article II, Sections 1, 2 and Article V, Sections 1, 5(A) of the Louisiana Constitution " explicitly and implicitly establish in the Supreme Court a centralized authority to supervise the judicial system, not only in legal interpretation and adjudication, but also in the manner the lower courts conduct their affairs procedurally and administratively." Twenty-First Judicial District Court v. State, 548 So.2d 1208, 1209(La. 1989); see also State v. Neisler, 93-1942 (La. 2/28/94), 633 So.2d 1224, 1233 (Dennis, J., concurring in part, dissenting in part (agreeing that while " the trial courts should be encouraged to adopt local rules to govern themselves administratively and procedurally, ultimately the source of authority for the correction of individual abuses of discretion lies in the supervisory jurisdiction of this [supreme] court and the appeals courts and, for the correction of systemic problems, in this [supreme] court alone by its administrative, procedural and inherent judicial rule-making power." )) La. Const. Art. V., Section 5(A) grants the Supreme Court general supervisory jurisdiction over all other courts, including administrative control over the lower courts and provides that the Supreme Court " may establish procedural

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and administrative [2015-0164 La.App. 4 Cir. 3] rules not in conflict with law ..." Twenty-First Judicial District Court, 548 So.2d at 1209.

Thus, I find that the Louisiana Supreme Court is the ultimate source of authority for the correction of a systemic problem in an allotment system that does not rise to the level of a due process violation, but adversely affects the judiciary. In Neisler, the Louisiana Supreme Court provided guidance to the lower court and addressed a systemic problem in the allotment procedure regarding bail matters employed in Orleans Parish Criminal District Court in the following manner:

While we find such a local rule is needed, we decline at this point to interfere with this matter of judicial administration committed to the sound discretion of the Orleans Parish Criminal District Court. Instead, we find this gap in the rules one that the criminal district court itself must resolve. For guidance purposes, we note that the criminal district court should, as a matter of internal procedure, adopt rules for the orderly handling of such preliminary bail matters. Stated otherwise, the criminal district court should implement some sort of random allocation system designed to prevent " judge-shopping" and the appearance of favoritism.

Neisler, 633 So.2d at 1232.

Court allotment systems that give the district attorney's office the " ability to manipulate" or which appear to give any party a " favored position" do not inspire public confidence in the criminal justice system. The Louisiana Code of Judicial Conduct for judges, the Louisiana State Bar Association's Rules of Professional Conduct for attorneys, and various statutory laws address the need to maintain public confidence in the judiciary, legal profession, and criminal justice system and to avoid even the appearance of impropriety or favoritism that would undermine public confidence in the integrity and impartiality of the judiciary.[2]

[2015-0164 La.App. 4 Cir. 4] In most criminal cases involving criminal behavior occurring at or during a definite period of time, the allotment procedure currently employed in Orleans Parish Criminal District Court is not problematic or amenable to " judge-shopping." However, under the specific facts of these particular cases, where the offenses are alleged to have spanned a period of time and the dates of the offenses cannot be determined with certainty, the allotment procedure may be susceptible to manipulation, contrary to the spirit of random allotment and to the ethical, professional, and statutory requirements set in place to maintain the public confidence in the criminal justice system. Additionally, legal challenges based on this allotment procedure are likely to occur in future cases where the offenses charged may span over a period of

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time. Thus, while I find no individual due process violation in these cases but a systemic problem in a lower court's procedure, I would stay this matter to allow the Louisiana Supreme Court an opportunity to provide guidance to the lower court to administratively correct the local allotment procedure so as to remove even the specter of allotment manipulation and " judge-shopping."


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