NEW ORLEANS -- New Orleans police say they caught Troy Wright in a stolen taxi cab on Nov. 12. While chasing the previously convicted felon, officers say he tossed a .40-caliber Glock pistol to the ground.
Wright was charged with possession of stolen property and felon with a firearm. The case appeared relatively straightforward until Wright's attorney, Steve Singer, raised a bold constitutional issue, challenging how the case was assigned to one of the 12 trial judges at New Orleans Criminal Court.
Singer argued that prosecutors tried to steer the case away from two judges viewed as tougher on the prosecution
"It's in no one's interest to have this system,” Singer said. “It just creates unnecessary questions and suspicion and creates the impression that the system may not be completely above-board."
Allotment, as the process is called, is a fundamental step for every case that hits Tulane and Broad. Singer is now challenging the process, arguing that it is open to manipulation by prosecutors.
"The district attorney has basically complete authority over who, what, where and when to charge."
The problem, according to Singer, is that the date of the crime determines which judge gets the case. And the district attorney's office gets to determine that date.
"The problem with the system is in more complicated cases, where you have offenses that occur on multiple days," he said.
Take Troy Wright's case.
By looking at the police report, it appears that the two allegations against him took place on Nov. 12. Singer said it wouldn't have been a stretch to see the stolen property charge listed as Nov. 11, the day the cab was likely stolen.
But when the DA's office charged Wright in a bill of information, the date was listed as Nov. 10, avoiding the two earlier dates and two judges viewed as tougher for prosecutors.
"That's why I challenged the allotment,” Singer said, “because it was hard for me to see why, how November the 10th."
In Wright's case, the matter became moot at a hearing last week when prosecutors agreed to change the date and move Wright to a different section of court.
District Attorney Leon Cannizzaro said the date on the bill of information was simply a mistake.
"On many occasions in criminal court, the DA's office will go in there and we will amend the bill of information to record the correct date," Cannizzaro said.
But according to Singer and other defense attorneys, fixing an incorrect date doesn't fix the underlying issue. A similar challenge was made by defense attorney Aaron Rives in 2010.
"When we have a system that's capable of manipulation, we're supposed to get rid of it. We're supposed to have a system that's truly random," Rives said. “And this system is not truly random.”
For decades, the court used ping pong balls picked randomly and placed on a grid. But after Hurricane Katrina, the district attorney and public defender's office wanted to allot cases more quickly, so they used police item numbers so cases could be assigned to judges right away.
As Rives was challenging that system, the court changed to the system currently in place. But in Rives’ opinion the problem still hasn't been remedied.
"My problem back in 2010 and my problem now, if it's still ripe for manipulation, is that we should not have an allotment system that anyone could be tempted to toy with," he said.
Cannizzaro flatly denied any notion of tampering, saying there is simply no evidence that his attorneys have ever picked dates to get favorable judges.
"The date of the crime is determined by the criminal, not by the district attorney," Cannizzaro said.
But Singer and Rives said that an earlier state Supreme Court ruling dictates that a defense attorney doesn’t have to prove actual manipulation of a case allotment. They argue that a challenge can be lodged if an allotment system is susceptible to manipulation.
Both attorneys cite the 2010 ruling Louisiana v. Cooper, in which the high court wrote, “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.”
With Troy Wright’s case resolved, there is no current challenge to the system. But Singer and Rives said they will not hesitate to mount another challenge if it's in the best interest of a defendant.