Orleans Parish District Attorney Leon Cannizzaro wants to set a new standard of efficiency by prosecuting two murder cases a week at Criminal District Court — and he ultimately wants to try every homicide defendant within 12 months of the date a murder was committed. But Cannizzaro's office cannot accomplish that goal on its own. The DA needs help from the Criminal District Court judges, who are resisting his push for judicial economy.
To accomplish his goal of speedier trials, Cannizzaro says, all criminal cases, including those for murder and other violent crimes, should be allotted to one of the 12 Criminal District Court sections immediately — on the date the crime occurs. Under the current system, cases are allotted only after the DA's office formally files charges against an arrested suspect; that can take up to 60 days after an arrest has been made.
The judges collectively make the allotment rules, and their resistance to Cannizzaro's proposal has ground his plans for speedier murder trials to a halt.
"The sooner a case is assigned to a section of court, the sooner a prosecutor (the same assistant district attorney who will prosecute the case in court) can start working on the case," Cannizzaro says. "This ultimately will increase cooperation and communication with police officers investigating the crime." Cannizzaro says earlier allotments will help his office put violent offenders behind bars faster and more effectively.
Interestingly, the office that frequently opposes Cannizzaro's prosecutors in court — the Orleans Parish Public Defender's Office — supports the DA's idea of earlier allotments. Chris Flood, deputy director of the public defender's office, calls the current procedure "a barrier to good practice."
With assistance from the Vera Institute of Justice, a nonprofit organization dedicated to improving justice systems, the prosecutor's office and the public defenders' office have joined together to lobby Criminal Court judges to make the change.
The judges take a different view, saying the proposed change "is not in the best interests of the citizens." Citing the Canons of Judicial Conduct, the judges decline to elaborate.
Cannizzaro is upping the ante by taking his case to the public. Last week, the DA pushed for the change at a City Council meeting, asking council members to encourage the judges to approve the proposal. The council seemed open to Cannizzaro's request.
"Now we need to make sure the judges evolve to best practices," says District B Councilwoman Stacy Head.
"This is an issue on which the DA's office and the public defenders, as well as any good government group that has rendered an opinion, agree," Cannizzaro says. "The judges are either unable or unwilling to provide cogent reasoning for objecting to the change. As a citizen of New Orleans, this concerns me, and it is my intention to make sure the public is well aware of this problem."
The present allotment system was instituted in the 1970s, when Harry Connick Sr. was the Orleans Parish DA. Here's how it works:
After cops arrest someone, the DA's screening division interviews witnesses and arresting officers, reviews police reports and determines whether to accept the case. If a case is accepted, the DA's office files formal charges. Only then is a case allotted to a section of court, and at that time the screening division hands the file over to an assistant DA working in that court section. According to the DA's office, the prosecuting attorney often has to re-interview witnesses and cops before proceeding with the case, duplicating efforts and causing the trial to be delayed.
What Cannizzaro wants is "vertical prosecution," a system that allows an assistant district attorney to go to a crime scene and handle a case from investigation through screening and trial. The DA says he would use the vertical prosecution model in serious crimes such as rape and homicide — but that can happen only if cases are allotted when crimes occur. Otherwise, there's no telling which section of court (and thus which assistant DA) will wind up getting the case until much later in the process.
In nonviolent felony and misdemeanor cases, an ADA could still screen and prosecute a case once it has been assigned. Cannizzaro says this would eliminate the need for a separate screening division and reduce the number of trial continuances because prosecutors would be ready to proceed sooner.
Cannizzaro cites his office's handling of homicides and sex crimes as examples of how the system could work. As he promised in his 2008 campaign, the DA sends an investigator, a social worker and a prosecutor to every murder and sex crime scene. Instead of waiting to receive police reports before interviewing cops, ADAs and cops coordinate their efforts from the outset. The DA says police reports, which used to take up to 100 days to be completed, now arrive in 30 days or less.
As a result, Cannizzaro says, NOPD now makes more murder arrests, and the DA's office accepts more murder cases for prosecution.
For example, NOPD made 93 murder arrests in 2008 — the year in which Cannizzaro was elected, but not until November. The DA's office in that year accepted 65 murder cases for prosecution. In 2009, Cannizzaro's first full year as DA, cops made 140 murder arrests; as of January 2010, the DA's office had accepted charges against 97 defendants. Cannizzaro attributes the increases to better coordination with NOPD and early contact with witnesses, many of whom were previously reluctant to testify.
The DA says he could implement a vertical prosecution system now, under the current allotment system, but it would force his assistants to run from section to section of court, frustrating judges who expect lawyers to be standing by when they take the bench. That's a situation the public defenders' office knows all too well.
"The largest complaint we have from the bench is lawyers not being available because they're in another section," deputy director Flood says. "It happens all the time."
Cannizzaro doesn't want that problem for his own office, which is why he and Flood agree the allotment system should change.
By state law and national standards, public defenders must provide vertical representation, which requires defense attorneys to practice in every court section — and forces them to rush from courtroom to courtroom, often with little time to prepare. Flood says he'd like to limit the number of courtrooms a public defender has to cover and coordinate sections according to attorneys' expertise, combining newer lawyers with seasoned veterans to handle a variety of cases.
With those goals in mind, Flood and First Assistant DA Graymond Martin approached individual Criminal Court judges last October to discuss Cannizzaro's new allotment idea. The two met with all of the judges except for Julian Parker and Frank Marullo. According to Martin, there was unanimous support for the proposal, with varying degrees of enthusiasm. He says he honored a request by the judges to write a memo explaining the new system, which he hoped would be considered at their monthly meeting in November, which included all the judges and the magistrate. Martin says he didn't hear back after that meeting, so he resubmitted the memo in December.
In late January, with no response yet from the judges to Martin's memo, Cannizzaro presented his first "State of the Criminal Justice System" report to a crowd of supporters and various members of the local criminal justice system at Gallier Hall. In his speech, Cannizzaro addressed the judges directly: "I am asking you that you promptly adopt this rule and allow for the institution of a 'best practice' in our criminal justice system."
A few days later, Cannizzaro got an answer. In a terse statement, the justices suggested that the proposal would violate the Canons of Judicial Conduct, which require judges to operate independently of the defense and prosecution. They therefore voted against the rule change in November, the statement said. The Criminal Court bench includes 12 judges and Magistrate Gerard Hansen, but the exact vote tally was not disclosed. The judges also said the existing rules allow the DA to conduct vertical prosecution as soon as charges are filed and a case is allotted. Margaret Dubuisson, a spokesperson for the judges, says the canons bar the judges from commenting further.
Jon Wool, an attorney and director of the Vera Institute of Justice's New Orleans office, doesn't understand the judges' unwillingness to approve the change. He says the Criminal Justice Leadership Alliance — a group started by Wool and New Orleans City Councilman James Carter and made up of representatives from NOPD, the DA's office, public defenders, the Orleans Criminal Sheriff's office and others — has tried to work with the judges on the proposed rule.
"I have heard nothing to suggest a reason based in good practice, justice or efficiency that would keep them from going along with this change," Wool says. "In fact, the rule change would improve practice for them in that the lawyers for both parties would be available in court."
East Baton Rouge Parish's 19th Judicial District Court assigns criminal cases based on the date of the crime. Judicial Administrator Jo Bruce says the court adopted the change in 2005, and since then it has balanced caseloads. She says she is unaware of any challenges to the rule. For a while, the court tried allotting cases based on the date of arrest, but it appeared some cops might be waiting to collar a suspect on a day when they hoped to get a more favorable judge to hear the case.
"So we swapped it to the date of the offense," Bruce says, "because we were pretty sure that murderers were not planning their murders based on what judge was on criminal duty."
In his January address, Cannizzaro noted that his office accepted 86 percent of the cases brought by NOPD last year, up from 61 percent in 2008. Martin says if the DA's office took the court's advice and instituted prosecution on every possible case under the current system of allotments, Criminal District Court would quickly drown in inefficiencies. "Do we have the ability and power to do that?" Martin asks. "Yes. Would it be appropriate? I think not."
Martin also disagrees with the judges' claim that the change would violate the judiciary's ability to function independently. "I don't know how the judiciary perceives a conflict of interest in reviewing rules that make it more efficient, more effective and better serving the public," Martin says.
Retired Judge Calvin Johnson, the former chief justice at Criminal Court, agrees with Martin and Cannizzaro. He says the proposed rule would improve the court's effectiveness, but he suggests a "piecemeal" approach to the reform. "Let's [start with] murder, so we can learn how it will go, and use that learning process to make the system change," Johnson says.
Cannizzaro says any rule change would have to be implemented slowly. He adds that his current system of assigning prosecutors and DA's investigators to work with cops at murder scenes is already streamlining the process and yielding positive results. He cites the case of 44-year-old Jackie Green. On April 25, 2009, Green shot and killed his ex-wife Marilyn and a friend, Lionel Nelson. Cannizzaro says because of NOPD's solid work, the diligence of the prosecuting attorneys and Judge Karen Herman moving her docket effectively, Green was convicted of two counts of second-degree murder on Nov. 13, 2009 — less than seven months after the crime.
"The Jackie Green case is the exception," Martin says. "The rule change is designed so that cases like Jackie Green would be the standard: murders to trial in a year."
Cannizzaro says he believes some Criminal Court judges — but not yet a seven-vote majority — support his proposal. "I think that's what the problem is," Cannizzaro says. "Some of them don't want to step out right now. I don't think they want to 'rock the boat,' so to speak."
Apparently the DA, who served as a Criminal Court judge for 17 years, doesn't mind doing that himself.