# Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the **27th day of January, 2016** , are as follows:

**BY KNOLL, J.** :

2015 -K K -1 473 C/W 2015 -K K -1 486 STATE OF LOUISIANA v. ERIK NUNEZ C/W STATE OF LOUISIANA v. BRANDON LICCIARDI C/W STATE OF LOUISIANA v. TYRONE BROWN (Parish of Orleans) (Allotment System of Criminal Cases) For the foregoing reasons, we reverse the decisions of the C ourt of Appeal granting defendants’ motions to quash allotment and ordering re

- allotment in these cases, and we reinstate the trial Judges’ denials of said motions. Otherwise, the decisions of the Court of Appeal a re affirmed. These cases are remanded for further proceedings consistent with this opinion. REVERSED IN PART; AFFIRMED IN PART; REMANDED. WEIMER,J.,dissents with reasons. HUGHES,J.,dissents with reasons. CRICHTON, J., additionally concurs and assigns reasons.01/27/2016

S UPREME COURT OF LOUISIANA NO . 2015 -KK- 1473 S TATE OF LOUISIANA VERSUS ERIK NUNEZ C ONSOLIDATED WITH STA TE OF LOUISIANA VERSUS BRANDON LICCIARDI C ONSOLIDATED WITH NO . 201 5-KK- 1486 S TATE OF LOUISIANA VERSUS TYRONE BROWN ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

KN OLL, J.
T his writ concerns the allotment system of criminal cases in Orleans Parish Crim inal D ist rict C ourt when the date of the offense is uncertain. We granted writs
in this consolidated matter to determine whether La. Dist. Ct. Rule 14.0 or the defendant s’ due process rights are violated by the case allotment system of the Orleans Parish Criminal District Court, which randomly assigns cases to different District J udg es based on the first date of the first alleged offense. Defendants assert the procedure in place at the time of the allotment of their cases is unconstitutional as applied to multi

- count, multi

- defendant cases, or to cases in which the date of offense is unc ertain and in which the prosecutor has discretion to allege the earliest date of a charged offense

. For the following reasons, we find the Orleans Parish Criminal D istrict Court’s allotment process is sufficiently random and does not

vest the District Attorne y with the power to choose the Judge to whom a particular case is assigned , instead tethering judicial assignment to th e defendant’s conduct

. Thus , we find defendants’ case allotment s meet constitutional due process2 requirements absent a showing of actual manipulation or pr ejudice to defendants. As defendants have presented no evidence of actual manipulation or prejudice, we reverse the rulings of the Court of Appeal granting the motions to quash allotment and ordering re

- allotment , reinstate the t ri al c ourts’ denials of the defendants ’ motions to q uash and/or for r e - allotment , and remand these cases to their respective trial c ourts for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY Erik Nunez and Brian Liccardi Erik Nunez, Brian Liccardi, and Darren Sharper are the named defendants in a nine

- count indictment returned by a grand jury on December 12, 2014. 1 Erik Nunez is charged with two counts of aggravated rape on September 23, 2013 , and one count of obstruction of justice occurring between September 23, 2012 , and February 28, 2013. Brandon Liccardi is charged with one count of human trafficking occuring between July 1, 2012 , and August 31, 2012; one count of aggravated rape on February 2, 2013; and two more count s of human trafficking of individuals on August 31, 2013 , and September 23, 2013. Nunez and Liccardi are not codefendants on any charge in the indictment. Upon indictment, t he case was allotted to Section “I” of Orleans Parish Criminal District Court based upon the July 1, 2012 date, as detailed below

. Prior to the indictment, Nunez had been arrested on the two counts of aggravated rape later included in the indictment and his bond had been set at $400,000. After the indictment was returned, Nunez appeared for arraignment on December 14, 2014, pleading not guilty on all counts, and the t rial Judge raised his bond to $2,500,000. Later on the same day, Nunez filed a motion to recuse, to re

allot, and to vacate prior order fixing bail. The case was re

- allotted to Section “D ”

1 Darren Sharper pleaded guilty on June 15, 2015 ; t hus , he is not a party in the present matter.3 for a hearing on the motions, where the trial court denied the motion to recuse and transferred the case back to Section “I.” On January 5, 2015, Nunez filed a motion to quash allotment and declare the current system unconstitutional, a request for re

- allotment, and a motion to vacate the prior order fixing bail. Louisiana District Court Rule 14.0 require s random allotment of criminal cases unless an exception is established by law or the rules, in acco rdance with the method described in Appendix 14.0A of the La. D ist . Ct. Rule s . The method of allotment provided in Appendix 14.0A for Orleans Parish Criminal District Court at the time of Nunez and Liccardi’s case allotment provided 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 Court and Traffic Courts and other pleadings shall be allotte d 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 ist

. Ct. Rules Appendix 14. 0A (as amended effective April 4 , 2014). Although Nunez acknowledge d the official method of allotment fulfills the random allotment requirement, he asserted the actual allotment procedure violates the requirements of both due process and La. D ist

. Ct. Rule 14.0. At the hearing on the motions, defense counsel called Keith J ohnson, the office manager for the Clerk of Court’s office, to testify to the Orleans Parish Criminal District Court allotment procedure. According to Johnson, the Clerk’s office receives a daily email from the Judicial Admi ni strator’s office containing a computer

- generated allotment of a Judge f or first, second, and third class felony cases and a second J udge allotted for fourth class cases. Each day’s allotment is recorded on a publicly available calendar. When the Clerk’s office receives a bill4 of indict ment or information, Johnson looks at the date of the offense indicated and refers to the calendar to find out what section of court has been allotted for that date. Johnson further testifie d he uses the “first date of the first offense” to determine the p ertinent date where multiple offenses are charged. U se of the first date of the oldest offense is, however, unwritten procedure and not part of the local rule according to Johnson’s testimony

. 2

2 In November of 2015, defendants’ counsel moved to supplement the record before this Court with a unauthenticated document entitled “New Case Allotment Process” which, on its face, purports to have been approved en banc by the Orleans Parish Criminal District Court on February 4, 2011, along with an apparent email from the Court’s Deputy Judicial Administrator, Shannon Sims, stating the rule has been in effect since February 4, 2011. The substance of the “New Case Al lotment Process” document is substantially similar (but not identical) to the current version of the Orleans Parish Criminal District Court local rule on allotment, as amended by court order and effective August 13, 2015 , which provides as follows : 1. The Clerk will assign daily, randomly, and by allotment among the Sections having felony jurisdiction all felony indictments, bills of information charging felony and misdemeanor offense s . and appeals Appeals from Municipal and Traffic Court s and other pleadin gs shall be allotted among Sections A through L and the Magistrate Section. A computer generated random allotment system is hereby implemented by the Clerk’s Office for all cases filed with the Clerk of the Orleans Parish Criminal District Court.

a. The allo t ment process sh all randomly assign one of the twelve sections of court as the allotment court for the day. For allotment purposes, the offense date will be compared to the calendar. The section of the court assigned to the date that corresponds to the off ense date will receive the case when it is filed with the Clerk of Court. In the event there are multiple offense dates for a case(s)/defendant(s), the highest class offense with the oldest date of offense will control for allotment purposes. If the specif ic date of the offense is not known , then the date of the first report of the offense will be used. b. The District Attorney shall be required to identify clearly the offense date with the case filing, so that allotments may be easily audited. If the number of cases allotted to sections of the court varies by more than five percent between the sections receiving the most and the fewest cases, then the court will review the allotment process and make any modifications or adjustments that may be required to cor rect the problem.

.... This allotment shall be conducted by the Clerk and shall be open to the public. The District Attorney shall be notified of the allotment which shall be published daily to the public. 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 LOUISIANA COURT ORDER 0115 (C.O. 0115) , amending La. Dist. Ct. Rules Appendices, Appendix 14.A, Criminal District Court Orleans Parish ( underline indicates text addition, strikethrough indicates deletion). ( c ontinued on next page)5 After the hea ring, the t rial Judge denied Nunez’s motion to q uash allotment and request to re

- allot , finding the allotment procedure was constitutional and Nunez presented no evidence the State manipulated the allotment system in this case. The Judge also denied Nunez ’s motion to vacate the prior order fixing bail. Nunez timely filed applications for supervisory writs. T he Fourth Circuit Court of Appeal ordered oral arguments be heard on the issue of the allotment procedure and invited the Orleans Parish Criminal District Court to provide a per curiam explaining the allotment procedure. Brandon Liccardi filed his motion to quash the indictment and/or strike the allotment system as unconstitutional and order re

- allotment , which was denied by the t rial Judge with the same ruling and reasons assigned for the denial of Nunez’s motion. Liccardi subsequently filed for supervisory writs along with a request for expedited consideration and consolidation with Nunez’s writ. T he Fourth Circuit hear d oral arguments en banc for both defendants’ applications on May 26, 2015. Tyrone Brown On November 19, 2014, Tyrone Brown was charged by bill of indictment with six counts for offenses allegedly occurring between August 1, 2012 , and

( cont.) Defendants assert this email from Sharon Simms indicates a rule substant ially similar to the one above

— which also requir es the first date of report of the offense to dictate the date used for allotment where the date of the offense is unknown

— has been in effect since February 4, 2011. Thus, they argue the cases at issue were improperly allotted under the wrong procedure , further suggesting possible manipulation. We disagree. We take judicial notice of Court Order 0115 amending the District Court Appendices, Criminal District Court Orleans Parish, which states in its text it was adopted by the Court en banc August 13, 2015 , and mad e effective the same date. La. Code E vid . art. 202(B)(d). Prior to August 13, 2015, the pertinent local rule was the one at issue in this case, as quoted above on page 2.
We hereby deny defendants’ motion to supplement the record, as we find the purporte d unpublished rule is of no moment in this case. Until this late point, neither the Orleans Parish Criminal District Court nor any party to this litigation has disputed the allocation procedure which was in effect at the pertinent time, as testified to by a deputy clerk of Criminal District Court called by defendants at trial. Defendants do not have a right to allocation as provided in an unpublished internal court policy. Furthermore, even if the procedure recounted by the deputy clerk were followed in err or in these cases, this Court stated in State v. Cooper a defendant “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.” State v. Cooper , 10

- 2344 , p.20 (La. 11/16/10), 50 So. 3d 115, 131 (citing Sinito v. United States , 7 5 0 F.2d 512, 515 (6 th Cir. 1984), and cases cited therein). As demonstrated below, the defendants have failed to demonstrate any prejudice in this case.6 September 19, 2014: two counts of aggravated rape; two counts of indecent behavior with a juvenile under the age of seventeen with greater than two years difference between the age of the juvenile and that of the defendant; and two counts of sexual battery. The case was allotted to Section “F” pursuant to the court’s allotment calendar ; Brown appeared for arraignment and entered a plea of not guilty. On January 5, 2015, Brown filed a motion to quash the indictment for improper allotment, arguing the date range beginning with August 1, 2012 , had been selected arbitrarily. After a contradic tor y hearing, t he trial Judge denied the motion to quash and Brown appealed. The Fourth Circuit ordered the case be presented for oral argument to the Court en b anc on May 26, 2015. Fourth Circuit Opinions The Fourth Circuit issued opinions for both cases on July 6, 2015. In State v. Nunez , the Court of Appeal held the District Court erred in denying the defendants’ motion s to quash the allotment, finding Louisiana Supreme Court jurisprudence contains no exp licit requirement for a showing of actual manipulation of challenged allotment procedures. State v. Nunez, 15

- 0164 , p. 12

- 13 (La. App. 4 Cir. 7/6/15), 174 So.3d 105, 113, writ granted, 15

- 1473 (La. 10/2/15),

-- So.3d

-- . The Court of Appeal further found t he procedure used in Orleans Parish Criminal Court violates the principles of due process as well as La. Dist. Ct. Rule 14.0 , because the allotment procedure “gives the District Attorney the ability to manipulate the allotment of cases by alleging certain dates in the indictment.” Id. Thus, the Court reversed the trial Judge’s denial of defenda nts’ motions to quash allotment and remanded the matter for the adoption of allotment procedures in compliance with the law and jurisprudence and for re

- allotment in accordance with the new procedures

. Id. at 114. Judge Bonin, dissenting, found there was no legal basis for ordering the re

- al lo tment of the case , as defendants did not show the
D istrict A ttorney intentionally selected or even attempted to select the tria l J udge

.7 Id. Judge Bonin also cited the en banc per c uriam the J udges of the Criminal District Court filed with the Fourth Circuit, which stated the current allotment procedure had been adopted after a period of trial

- and

- error and upon consultation with t he National Center for State Courts. Id. at 116.
In Tyrone Brown’s case, t he Court of Appeal held “the Orleans Parish Criminal District Court allotment system violates the principles of due process set forth in Simpson because under the circumstances prese nted in defend ant’s case, the District A ttorney had the ability to choose the date of the offense, which d i ctates the section of court to which the case is allotted.” State v. Brown, 15

- 0122 , p. 10 (La. App. 4 Cir. 7/6/15), 174 So.3d 95, 101, writ granted, 15

- 1486 (La. 10/2/15),

-- So.3d

-- . The Court of Appeal affirm ed the trial Judge ’s denial of
Brown ’s motion to quash the indictment, but granted the writ in part, remanding the matter to the Orleans Parish Criminal District Court for “the ado ption of allotment procedures that comport with the jurisprudence discussed above” and for

re - allotment of the defendant’s case under the newly

- adopted procedure. Id. LAW AND ANALYSIS These consolidated cases turn on whether the lower courts legally erred in their interpretation and application of the pertinent due process principles and Louisiana Court Rules; thus, the cases are subject to this Court’s de novo review. As this Court stated in its per curiam on rehearing in State v. Simpson, 551 So.2d
1303 (La. 1989), “[d] ue process of law requires fundamental fairness, i.e., a fair trial in a fair tribunal .” Id., citing Turner v. Louisiana, 379 U.S. 466, 85 S.C.t 546, 13 L.Ed.2d 424 (1965); State v Mejia, 250 La. 518 , 197 So.2d 73 (1967). This Court, beginning in Simpson, has recognized the allotment of criminal cases among J udges for trial implicates due process concerns. In order to meet due process requirements, the Court in Simpson held “ capital and other felony c ases must be allotted for trial... on a random or rotating basis or under some other procedure8 adopted by the court which does not vest the district attorney with power to choose the judge to whom a particular case is assigned

. ” Id. at 1304 (emphasis added)

. The issue in the present case is w hether the Orleans Parish Criminal District Court’s allotment procedure violates this rule, articulated in Simpson and further expounded in later cases. Notably, in Simpson , defense counsel and the District Attorney stipulated the State had the discretion to choose J udges to preside over criminal cases, and the Court found this system to be “facially unfair.” Id. Similarly, this Court in State v. Payne, 556 So.2d 47 ( La. 1990), found modified local rules were not in compliance with the rule articulated in Simpson because the “district attorney may still have the power to select judges by making unchecked motions for certain trial dates

. ” (Emphasis added).
I n State v. Reed , 95

- 0648 (La. 4/28/95), 653 So.2d 1176 (per curiam) , th e allotment procedure in question was a “numerical rotation in which any indictment or information filed by the district attorney was allotted to the ‘next judge up,’” and the Court’s one page per c uriam noted “[s]uch a system not only invites manipulation of allotments, but also violates the court rule which require s random allotment of each case.” Id

. (emphasis added). Thus, the Court held “[r]elator is entitled to enforcement of the court rule without proving actual manipulation in his particular case” Id. (emphasis added). Although defendants and the Fourth Circuit rely heavily on Reed for the proposition defendants need not
prove actual manipulation in order to successfully challenge an allotment procedure , we find Reed to be clearly distinguishable from the present case. As in Simpson and Payne , the Court in Reed found the system in violation of the court rule requiring random allotment because it vested in the District Attorney power t o select J udg es by controlling the order of filings ; thus, no showing of actual manipulation was required. In contrast, we find the record reflects the District9 Attorney’s actions do not drive the selection of J udges in the system at issue; rather, the defendant’s conduct dr ives the date of offense listed on the indictment. The rule articulated in Simpson was also applied in another short per c uriam issued by this Court in State v. Rideau, 01

- 3146, p. 1 (La. 11/29/01), 802 So

. 2d 1280 (per curiam) (Knoll, J., dissenting) . “ Be cause the District A ttorney has the ability, by process of elimination, to know the final judge in the pool to be assigned the next numbered capital case, and because the district attorney has the right to assign the next nu mbered capital case when indict ments are handed down,” the Court found the system violated the principles adopted in Simpson. Id. 3 Again in Rideau , th e system struck down by this Court was one in which the District Attorney could routinely control the assignment of J udges, here, by way of controlling the numbering of cases. As noted by Judge Bonin in his dissent in Nunez , this Court declined extreme application of the principle s articulated in Rideau in State v. Broussard , 03

- 1340 (La. 6/26/03), 852 So.2d 978 (per curiam). The allotment at issue in Broussard was one at which J udges were assigned random ly , but a J udge was deleted from the random allotment after he or she was assigned a case and until all
J udges had been assig ned one case. See id. The District Attorney could, the refore, determine which of the J udges remained available. However, in this particular case only one J udge had been deleted as of the time of the defendant’s allotment, so the

3 Justice Knoll, however, dissented from Rideau, stating : The majority fails to recognize in its zealous effort to micro

- manage the criminal process in Calcasieu Parish that Simpson requires that the District Attorney not have the “power to choose the judge.” Simpson, 551 So.2d at 1304. Here, the ball falls out of the machine randomly, allotting capital cases over the seven judges until all seven judges are assigned a capital case so no one trial judge gets more capital cases than any other.... The District Attorney does not have input as to how the balls fall out of the hopper. The majority finds a violation of Simpson because the District Attorney knows which judge is left when there is one ball left in the hopper and the District Attorney has more than one capital case for random allotment

. I fail to se e how this simple knowledge of what judge is left amounts to a violation of random allotment. 802 So.2d at 12 81.10 defendant’s case had been r andomly allott ed to one of the remaining ten J udges. Furthermore, a witness for the Clerk of Court’s office testified no one from the District Attorney’s office had ever attempted to figure out which case had been allotted to whom or to inquire which J udge s remained in the allotment pool. Id. Finding the District Attorney’s office had no “direct role in the allotment procedure in violation of Simpson and Rideau , ” this Court further found respondent had shown no “actual prejudice to his due process rights.” Id. at 979. Thus, no basis for ordering re

- allotment existed. Id. This Court’s most recent and fullest examination of the due process implications of allotment in criminal cases came in State v. Cooper, 10

- 2344 (La. 11/16/10), 50 So.3d 115 , in which this Court upheld an allotment system which defendants challenged both on due process grounds as articulated in Simpson and as an alleged violation of La. Dist. Ct. R. 14.0. In Cooper, the Fifteenth Judicial District’s allotment system contained multiple c riminal tracks for each of the district’s three parishes , and each division of court within that parish was randomly assigned on one of the criminal tracks for specified period of time. Id. at 121

- 23. Notably, the date of a criminal offense determined the allotment of the case to a particular track, and thus division of court, in two of the parishes at issue. La. Dist. Ct. R. 14.0 , originally enacted in 2002 and amended in 2010, establishes a uniform rule for the random allotment of criminal cases , providi ng in pertinent part : (a) The clerk of court shall randomly allot all criminal cases, unless an exception is established by law or these Rules. The method of random allotment established by each district court, or by each parish within a district, where ap plicable, is described in Appendix 14.0A....11 This Court , examining the issue of allotment in light of this rule for the first time, upheld the D istrict C ourt ’s finding the system at issue comp lied with La. Dist. Ct. R. 14.0, noting: 4 Our inquiry here is not to determine whether the district judges selected the “best” or “easiest” method of allotting criminal cases. Our focus here is only on whether the [allotment system] which was adopted violates the law. We have established a framework in the uniform ru les 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. In our goal of ensuring due process is provided to litiga nts, we have never required an allotment system which was purely random. Id. at 126 (emphasis added). Rather than requiring a perfectly random allotment system, this Court examin ed and synthe si z ed Simpson and Reed to ho ld “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.” Id. at 124. Applying this rule to the present case, we find the allotment procedure at issue is random and not dependent upon an action taken by the District Attorney. The District At torney has no input as to what J udge is selected for any particular date, and judicial assignment is made based on the earliest date of the charged offense, which is driven by the defendant’s co nduct

. Although the State concedes the allotment procedure at issue could be manipulated under certain circumstances, we note virtually every allotment system is susceptible to manipulat ion. As Judge Bonin aptly states in his dissent from the Court of A ppeal’s decision in Nunez , the District Attorney’s “vast prosecutorial authority” makes “any random allotment system vulnerable to a district attorney’s ‘manipulation’ because he can make so many choices which affect the allotment,

4 Th is Court also affirmed the District Court’s finding that one limited aspect of the allotment system , allowing the prosecutor to elect to b ring a felony to the same track in which a defendant already had a pending felony and thus select the presiding J udge, violated La. Dist. Ct. R. 14.0 and the requirements of Simpson. Id. at 126.12 including refusal to pro secute, joinder of offenses, joinder of defendants, subsequent joinder of a co

- defendant after allotment, and on and on.” 174 So.3d at
117. See La. C ode Cr im

. P ro . art. 61

. 5 Although not impervious to manipulation by a determined and unethical prosecutor, we find the allotment system at issue “adequately minimizes the risk of docket manipulation by either side.” State v. Coleman , 9 6

- 1768 (La. 7/10/96), 677 So.2d 435 (per curia m)

. Unlike in Reed, where the District Attorney could routinely file bills of information in a particular order to ensure certain judicial assignments, or in Payne , where the prosecutor could file an unchecked motion for a particular trial date, here, the prosecutor is constrained by the defendant’s conduct in selecting the date of the earliest charged offense. Thus, the allotment procedure at issue ensures J udge selection is driven by a ra ndom process anchored in a fact

- based allegation of the date of the crime, r ather than vested in the ordinary control of the District Attorney

. We fin d all defendants have a right to a fair trial in a fair tribunal, but defendants are not denied due process simply because an allotment system is not perfectly random. A s apt ly stated by this Court in Cooper : [D] ue process does not entitle a criminal defendant to selection of the manner in which the judge of that tribunal is designated. 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 judg e 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. 50 So.3d at 131 (citing Sinito v. United States, 7 5 0 F.2d 512, 515 (6 th Cir. 1984), and ca ses cited therein).
An allotment procedure does not violate due process principles or the requirements of La. Dist. Ct. Rule 14 by merely being susceptible to manipulation. To hold otherwise would have far

- reaching consequences , as nume rous

5 La. C ode Cr im

. P ro . art. 61 provides: “Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”13 jurisdictions in this State use date

- of

- arrest, date

- of

- offense, or other date

- based systems which could conceivably be manipulated by a bad faith actor. 6 Thus we decline to adopt such a burdensome and untenable rule.
W here an allotment system is sufficiently random and does not vest in the District Attorney the routine ab ility to sel ect J udges, the burden is on the defendant to show some actual manipulation or resulting prejudice in his particular case.
H ere, we f i nd the allotment procedure is sufficiently ra ndom and not dependent on the District Attorney’s actions . Therefo re, our next inquiry is whether defenda nts can point to some actual manipulation or resulting prejudice caused by the allotment system as applied in their cases

. T his Court finds defendants failed to present any evidence of such manipulation or prejudice during their opportunities to do so at their respective hearings on the motions to quash and / or re - al lot . Indeed, as noted by Judge Bonin in his dissent in Brown, counsel for Tyrone Brown “vi rtually stipulates at the contradictory hearing that the district attorney did not engage in misconduct nor attempt to manipulate the allotment system.” 7 Brown, 174 So.3d at 102. If the dates selected by the District Attorney were found to be unreasonable, then one might be able to draw an inference the District Attorney manipulated the system in this case. However, defendants have not shown the dates selected by the

6 For example, th e First, Second, Sixth, Twelfth , Fourteenth, Fifteenth, Nineteenth, Twenty

Second, and Fortieth Judicial Districts all rely on a date

- of

- offense based system to some extent. Ot her Judicial Districts rely on date

- of

- arrest or other date

- based systems, an d many Judicial Districts require random allotment without specifying a method in the local rules. La. Dist. Ct. Rules Appendix 14.0A (effective January 1, 2016).

7 Counsel for Brown states at the hearing:
MS

. PASQUERELLA: Well, I’m not saying that they sat down and sa id “How do we get this case in Section F;” I’m not saying t hat, judge. I’m saying that for whatever reason they chose a date that is based not in anything that they have given me in Discovery [sic ] and not anything that their complainant has said. So if they are alleging that acts occurred on dates where they have no information to say that those acts occurred and by doing that they are, they may be manipulating the system but I don’t have any reas on to believe that they are... Transcript of Motion Hearing, January 5, 2015, p. 10.14 D istrict Attorney to be unreasonable

. In B rown’s case, the acts charged in th e indictment are alleged to have occurred between August 1, 2012 , and September 19, 2014

. Accordi ng to Brown’s arrest warrant, dated September 19, 2014: Brown acknowledged he understood his rights and signed waiving his Miranda Rights against self

- incrimin ation to make a statement to the detective. Mr

. Brown admitted that the sexual incidents involving the ten year old female victim started two years ago when the victim was eight years old and all of the incidents occurred in Orleans parish. The victim tu rned eight on August 9, 2012. The State avers its internal policy is to use the first of the month when specifying date ranges where an exact time range is uncertain. Given the youth of the victi m and the strong possibility neither party would recall exact ly when the alleged crimes occurred , the State’s specifica tion of a date a mere week before the victim’s eighth birthday is eminently reasonable. Furthermore, the State’s policy of selecting the first day of the month when an exact date is uncertain unders cores the District Attorney is not attempting to manipulate the system in the matters presently before us , as this policy is applic able to all cases where the date of the offense is unknown.
In Nunez, the earliest date alleged in the indict ment is found at count one, namely Brandon Liccardi ’s charge of human trafficking between July 1, 2012 , and August 31, 2012

. A transcript of the victim’s statement was entered into the record under seal, and our review of this transcript supports the reasonableness of t his date range. The beginning date of July 1, 2012 , is also consistent with the District Attorney’s stated internal policy of selecting the first date of the month. Far from being arbitrary, the dates selected by the District Attorney in these cases are we ll

supported and highly reasonable considering the evidence on record. None of the defendants have put on any evidence the District Attorney ha s engaged in manipulation in their case s . Likewise, none of defendants ha ve specified or given evidence for any prejudice which will result from their respective judicial allotments, having been unable to even speculate as to why the District Attorney15 would want the particular J udges assigned or as to any potential harm caused by the procedure at issue or by the selection of the se particular J udges

. Thus, we find defendants’ challenge of their case allotments on constitutional and statutory bases fails. DECREE For the foregoing reasons, we reverse the decisions of the Court of Appeal granting defendants’ motio ns to quash allotment and ordering re

- allotment in thes e cases, and we reinstate the trial Judges ’ denials of said motions. Otherwise, the decisions of the Court of Appeal are affirmed. These cases are remanded for further proceedings consistent with this opinion. REVERSED IN PART; AFFIRMED IN PART; REMANDED.

### 01/27/2016

SUPREME COURT OF LOUISIANA

NO. 2015-KK-1473
STATE OF LOUISIANA vs. ERIK NUNEZ
CONSOLIDATED WITH
STATE OF LOUISIANA vs. BRANDON LICCIARDI
CONSOLIDATED WITH
NO. 2015-KK-1486
STATE OF LOUISIANA vs. TYRONE BROWN

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
Weimer, J. , dissenting. I respectfully dissent. At issue in this matter is the integrity of the criminal justic e system and the justified concern that, when a judge is selected to preside ove r a case, the justice system is fair to both the state and the accused. It is undisp uted that the district attorney’s office knows what judge will hear a case if that off ice picks a certain date. Counsel for the district attorney’s office admitted at oral arg ument that the system of allotting judges at Criminal District Court for the Parish of O rleans can be manipulated by the district attorney’s office. Counsel further submitted that if the ability to manipulate the system is the determining factor unde r the law, then the district attorney’s office should not prevail. That is, indeed , the law and, thus, the district attorney’s office should not prevail.The district attorney’s argument is essentially that any allotm ent system can be manipulated; therefore, there is no need to take corrective act ion for the system here. However, barriers to manipulati on by either the state or the ac cused must exist, else fairness is replaced by mere fa ith that the system will not be manipulated. After the majority recounts a line of cases sufficient to demon strate a jurisprudence constante rule that defendants facing criminal charges are guaranteed by due process to a random allotment system of judges, the majo rity nevertheless retreats from the equally establis hed rule that defendants need not show actual manipulation of the allotment system. The rule, instead, as th is court explained in
State v. Reed , 95-0648, p. 1 (La. 4/28/95), 653 So.2d 1176, 1176, is that if the system can be shown to “invite[] manipulation of allotments” by the di strict attorney’s office, then defendants are “entitled to enforcement of the court [rand om allotment] rule without proving actual manipulation in [thei r] particular case[s].” The majority traces back the recognition that due process requi res random allotment to at least this court’s ruling in State v. Simpson , 551 So.2d 1303 (La. 1989) (on reh’g). “To meet due process requirements, capital a nd other felony cases must be allotted for trial to the various divisions of the cour t, or to judges assigned criminal court duty, on a random or rotating basis or under som e 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.” Simpson , 551 So.2d at 1304 (footnote omitted). The majority does not, however, trace thes e due process cases forward. In addition to recently citing both Simpson and Reed favorably in State v. Cooper , 10-2344, p. 10 (La. 11/16/10), 50 So.3d 115, 124, this court has also cited Simpson and Reed in In re Elloie , 05-1499, p. 23 n.21 (La. 1/19/06), 921 So.2d 882, 898 n.21, in which this court disciplined a judge for misconduc t which included inter

2alia “violat[ing] the rules regarding the random allotment of cases .” Without even reviewing the lower courts’ reliance on both Simpson and Reed , the lineage from this court as just recounted has stood unbroken for approximately 27 years and easily qualifies as “a long line of cases following the same reasoning within this state” and “forms jurisprudence constante .” See Doerr v. Mobil Oil Corp. , 00-0947, p. 13 (La. 12/19/00), 774 So.2d 119, 128. Apparently attempting to avoid the recognition that the majorit y is actually overruling this line of jurisprudence, the majority undertakes various efforts to attempt to distinguish the instant case. The majority’s efforts are in consistent, at best. For instance, the reader is told at the outset that the issue to be resolved is: “This writ concerns the allotment system of criminal cases in Orleans Pari sh Criminal District Court when the date of the offense is uncertain .” State v. Nunez c/w State v.
Licciardi c/w State v. Brown , 15-1473, 15-1486, slip op. a t 1 (emphasis added). Later the reader is told that there is no uncertainty; in contr ast, “the defendant’s conduct drives the date of offense listed on the indictment .” Nunez , slip op. at 9 (emphasis added). More troubling is the contradiction in recognizing that the dis trict attorney’s office has vast discretion in formulating the date indicated on charges, while steadfastly insisting that “the prosecutor is constrained by th e defendant’s conduct in selecting the date of the earliest charged offense.” Nunez , slip op. at 12. The majority attempts to reconcile this contradiction by citing a p utative “policy,” by which it is allegedly “the State ’s policy of selecting the firs t day of the month when an exact date is uncertain.” Nunez , slip op. at 14. This “policy” is not mandated by any statute or court rule. Therefore, not only is this “policy ” merely discretionary and

3subject to change at any time, but assuming its existence only underscores that the ability to manipulate the system i s afforded to the prosecutor. While the majority recognizes the possibility of a “determined and unethical prosecutor” ( Nunez , slip op. at 12), the majority is quick to dismiss the notion that defendants are entitled to a reallotment to judges other than t hose which have resulted from the dates on charges inscribed by the district attorney’s office. However, according to the majority’s account, an “unethical prosecutor” need not be very “determined” to manipulate the a llotment system. As the majori ty confirms, the policy of the district attorney’s office of using the beginning of the month in charges for which a crime occurs over a span of time is merely an “inte rnal” guideline.
Nunez , slip op. at 14. Although the district attorney’s “internal policy” is discretio nary, the majority’s reliance on it does not aid the notion that the instant cases h ave been randomly allotted. Rather, and at most, the situation appears to be tha t a defendant’s alleged crime provides a general timefra me, but the district attorney’s office chooses the specific date(s) indicated on the charges. The record irrefuta bly establishes that from the district attorney’s office’s choice of date(s), the selecti on of a particular judge follows. That is not random allotment, especially in light of the fact of record that the assignment of a judge for a speci fic date is known to the distr ict attorney’s office. 1 Also, because the “policy” is entirely discretionary, there is no indication that there are any checks and balan ces on prosecutors’ implementatio n of the “policy.” The lack of checks and balances in the putative “policy” unders cores the wisdom of this court’s prior ruling that if the system invites manipulati on of allotments by the

1 By way of illustration only, and not suggesting a requirement , one possible way this unfortunate situation could be remedied is by having any case for which cri minal activity occurred over a range of dates to be assigned to a separate track for random allotmen t within that track. 4district attorney’s office, then defendants are entitled to enf orcement of a random allotment rule without proving that the district attorney’s off ice has actually manipulated the system. See Reed , 95-0648 at 1, 653 So.2d at 1176. I believe it is a fair reading of Reed to say that Reed champions a standard whereby respect for the judicial system is directly proportional to its fairness to all . I believe it is also fair to say that Reed also indicates that any procedure, whereby the district attorn ey is allowed to figuratively place his thumb on the scales of justic e as it concerns the allotment of cases, fails to satis fy that standard. While I do not attribute any manipulation to this district attorney’s office in this case, t he law, as articulated by this court, is that it is only the possibility of manipulation which is sufficient to result in an allotment being overturned. The majority’s further use of the discretionary “policy” is sig nificant, in that it reveals that the majority is tacitly overruling Reed and the other cases from this
court’s jurisprudence constante on random allotment. Specifically, while the rule under the Simpson and Reed line of cases has been that no actual manipulation need be shown, the majority now uses the discretionary “policy” to l aunch into an analysis of whether defendants have shown actual prejudice. In support of this inquiry, the majority relies on Cooper , supra . In Cooper , this court stated that a defendant “is not denied due process as a result of an error in a particular judg e’s selection unless he can point to some resulting prejudice.” Id
. , 10-2344 at 20-21, 50 So.3d at 131. However, this statement was made in the context of defendant’s argument, which the court described in these terms: “He ar gues there is no rational basis for failing to randomly allot this case as he requested, i.e . by a totally random system” and “there is no suggestion of the district attorney's complicity in the process leading to the assignment

5of this case to the trial judge and no basis for the inference that the state was in any way involved in that process.” Id
. , 10-2344 at 20-21, 50 So.3d at 131. The absence of any suggestion that the district attorney’s offi ce could manipulate the system is critically important for understanding the statement in Cooper regarding the need to show prejudice. The court observed that the defendant “failed to show in what way the manner in which his case was al lotted resulted in a tribunal less than fair and impartial.” Id
. , 10-2344 at 21, 50 So.3d at 131. That is, the defendant failed to adduce affirmative proof of prejudice. How ever, the court did not confine its inquiry there. The court also asked whether the de fendant made any “suggestion of the district attorney’s complicity in the proces s leading to the assignment of this case.” Id. This latter inquiry was essential, because as this court ruled in Reed , when the district attorney can manipulate the system, there i s no need to show actual prejudice. Stated simply, when the district att orney can manipulate the system, prejudice is assumed. See Reed , 95-0648 at 1, 653 So.2d at 1176. The court’s inquiry in Cooper shows that it still considered the rule in Reed to be valid. Indeed, before the whole inquiry just described, the court in Cooper explained: “Synthesizing the rules of Simpson and Reed , we hold that a rotation or allotment system is not acceptable if the event which triggers applicatio n of the system is dependent upon an action taken by the district attorney.” Cooper , 10-2344 at 10, 50 So.3d at 124. I believe that it is imprudent t o depart from this court’s prio r jurisprudence

constante by now requiring defe ndants to show actual manipulation of a r andom allotment system, when these def endants have shown that the sys tem is eminently susceptible to manipulation. This court should not depart so e asily from reasoning that protects due process, which is constitutionally guaranteed . See La. Const. art. I,

6§ 2 (“No person shall be deprived of life, liberty, or property , except by due process of law.”); and La. Const. art. I, § 1 (“The rights enumerated i n this Article are inalienable by the state and shall be preserved inviolate by th e state.”). Recalling that the majority’s departure now foists proof of actual manipulatio n on defendants, the majority compounds its erroneous reasoning (and the attending d ue process infirmities) by deciding this case without a remand to allow de fendants to marshal evidence under the standards the majority has now announced. I n legal terms, the majority’s ruling has changed the substantive due process guara ntees that have been long-recognized, and has done so in a way that deprives the def endants of procedural due process. See State v. Griffin , 14-1214, 14-1238, p. 5 and n.8 (La. 10/14/15), ___So.3d___, ___ and n.8 (noting that procedural due process re quires notice and an opportunity to be heard, and “[d]ue process also consists, of c ourse, of substantive rights.”). In non-legal and admittedly colloquial terms, becau se the rules of the game have been changed after the game , the game should be replayed t o ensure defendants will be afforded an opportunity to fully participate under the new rules. 2 Nevertheless, if indeed prejudice need be shown, then it is suggested that th ere is proof of prejudice to the perceived integrity and fairness of the system when a pr osecutor is capable of manipulating the allotment. To conclude, where the integrity of the criminal justice system has been placed at issue as it has in these consolidated cases and the district attorney’s office is allowed to remain in a position where it admittedly can manipul ate the allotment of judges, confidence in the integrity of the system will be erode d. While there is only one step, and a very preliminary step, of the criminal justice system at issue in these

2 The record also reflects that local rules of court enacted en banc were simply not followed in the allotment process. 7cases, sadly, the majority has missed an opportunity to demonst rate that there is no aspect of the system that should not be safeguarded from manipu lation and unfairness. Thus, I respectfully dissent.

801/27/2016

S UPREME COURT OF LOUISIANA NO . 2015 -KK- 1473 S TATE OF LOUISIANA VERSUS ERIK NUNEZ C ONSOLIDATED WITH STA TE OF LOUISIANA VERSUS BRANDON LICCIARDI C ONSOLIDATED WITH NO . 201 5-KK- 1486 S TATE OF LOUISIANA VERSUS TYRONE BROWN ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

H ughes, J., dissents and assigns reasons. This case is not about right or wrong, guilt or innocence, the burden of proof, evidence, the heinous nature of the crime, the district attorney’s discretion to charge whatever crime whenever he deems appropriate, “ other crimes ” where a certain date is known, or fraud or bribery committed by participants in the system. This case is about the integrity of the judicial system and t he image of this court as the guardian of that integrity. The state admits the Orleans Parish allotment system can be manipulated. Its practice of going to the first of the month when a range of dates is involved in order to be inclusive is questioned by the case where the victim first indicated the incident occurred in March or maybe the middle of 2012. The state went with July 1st. Why would March

- June be excluded as a possible period when crime occurred? District Attorney is the toughest job in the system. The fact that in Orleans Parish the state has the ability to manipulate which judge a case is allotted to is notan advantage the state needs or should wish to be perceived as having. It is inimical to the respect the district attorney should be ac corded. The integrity of the system and the faith of the people in that system are more important than the particulars of any one case. This case will be noted by every attorney, teacher, law enforcement officer, and a great deal of the public. Doubt in the fairness of the system and the ability of a party to legally manipulate the system cannot be tolerated. I would affirm the court of appeal.1 01/27/2016

SUPREME COURT OF LOUISIANA NO. 2015
- KK
- 1473 STATE OF LOUISIANA VERSUS ERIK NUNEZ CONSOLIDATED WITH STATE OF LOUISIANA VERSUS BRANDON LICCIARDI CONSOLIDATED WITH NO. 2015
- KK
- 1486 STATE OF LOUISIANA VERSUS TYRONE BROWN ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
Crichton, J., additionally concurs and assigns reasons : I concur in the majority decision. I wri te separately to emphasize that due process requires a “neutral and detached judge in the first instance.” Concrete Pipe & Prods. Inc. v. Constr. Laborers Pens. Trust , 508 U.S. 602, 617 (1993) ( quotation omitted )

. In my view, the allotment system at issue in this case could raise concerns about impartiality. However, the vague , unspecified, and unverified

concer ns the se defendants raise are insufficient to deprive them of a “neutral and detached judge” at trial and therefore, insufficient to rise to the level of a constitutional violation under the facts presented. See State v. Coleman , 1996

- 1768 (La. 7/10/96), 677 So. 2d 435 (allotment system must “adequately minimize the risk of docket manipulation by either side”).
Moreover , the allotment procedure at issue does not violate Rule 14.0 of the La. District Court Rules or the Orleans Parish Criminal District Court method of allotment in set forth in Appendix 14.0A. As the majority points out, defendant Nunez in fact conceded that the method of allotment set forth in Appendix 14.0A2 fulfills the random allotment requirement. And as to the defendants’ argument that the application of the unwritten rule in these circums tances violated Rule 14.0 , no party has argued that they lacked notice or did not understand the process. Importantly, the defendants who fall under this allotment system are not without remedies in the event a judge demonstrates actual bias

. For instance, the defendants may file a motion for recusal specifying reasons therefor . La. C.Cr.P. art. 671, et seq. See also , e.g. , United States v. Pearson , 203 F.3d 1243, 1261 (10th Cir. 2000) (explaining alternatives to finding judicial assignment system unconstitutional ). The defendants can also seek appellate review of evidentiary or other judgments that the trial judge renders in the co urse of pre

- trial and trial proceedings in the event they disagree with those rulings. Finally, I emphasize that the office of the district attorney has “the responsibility of a minister of justice and not simply that of an advocate.” Model Rules of Prof’l Conduct R. 3.8 cmt [1] (Am. Bar. Ass’n 1983 ). The United States Supreme Court has noted : The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not t hat it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor

- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring abo ut a just one. Berger v. United States , 295 U.S. 78 , 88 (1935 ).
I ndeed, this Court has stated that the office of the district attorney is a “quasi

- judicial” one , and the district attorney “represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice . . . .” State v.
Tate , 171 So. 108 , 112 (La. 1936)

. As s uch, the district attorne y should seek t o3 uphold the integrity of the judicial process and ensure he is beyond reproach regarding any potential manipulation of the allotment system. It is my view that the district attorney in this case, together with the judges of the Criminal District Court, s hould reexamine the Orleans Parish system in cases involving multi

- count indictments with uncertain offense dates , first , to make certain that there is no reasonable potential for manipulation, and second, to ensure the public’s confidence in a random and fair allotment system.