Criminal Justice
 

Some judges who were challenged by DA say he gamed the system when he was on bench

By Matt Davis, The Lens staff writer |

District Attorney Leon Cannizzaro picked a fight with Criminal District Court judges last month when he challenged them to double the number of jury trials to 600 a year. After all, he said, when he was on the bench for 17 years, he earned a reputation as a trial machine.

But Cannizzaro’s impressive statistics as a judge were sometimes inflated, say two current judges, as well as an attorney who was assigned to Cannizzaro’s courtroom. And if they’re right, the way he did this is ethically dubious, two experts say.

Cannizzaro’s pressure on judges today to increase the number of jury trials they conduct could be encouraging some of them to do the same, says the city’s public defender.

Judge Laurie White said in a recent interview that Cannizzaro always kept a close eye on the numbers when he was a judge.

“He [Cannizzaro] and Judge [Dennis] Waldron were always very competitive about who tried the most cases per year, and there was actually a trophy, I think, that was always bantered about,” Judge Laurie White said. “And I think that all that sort of goes back to where we are now.”

The maneuver at issue is known around the Tulane and Broad courthouse as a “pick-and-plea.” This happens when judges direct attorneys to pick a jury even though all parties and the judge know that a defendant wants to plead guilty. Once a jury has been seated, the matter officially goes on the books as a jury trial. The defendant then enters a plea and the jury is dismissed.

But there are ethical problems with pick-and-pleas.

“This, to me, if it’s really happening, is an effort to manufacture false reports as to caseloads,” Loyola Law School professor Dane Ciolino said. “And whether you’re doing that with the pen, or with a coordinated effort of empanelling jurors under false pretenses it’s the same thing.”

Cannizzaro denies ever having orchestrated a pick-and-plea in his courtroom.

“No. Absolutely not. I wouldn’t do it,” Cannizzaro said in an interview today. “It costs money. If I knew a defendant wants to plead guilty, I’m not going to bring a jury up there. To me, the best way to establish good public relations with the jury is to get the jury out of there as quickly as you possibly can. But don’t bring them there to waste their time. Believe me I wasn’t going to have them up there just so I can inconvenience them.”

Cannizzaro: Denies ever doing a pick-and-plea. Photo by Matt Davis.

Former Chief Judge Calvin Johnson, who retired from Criminal Court in 2008 after 17 years, said pick-and-pleas were common practice in his day – but he didn’t take part in them.

“It all goes back to how the court defines a jury trial,” he said. “For recordkeeping purposes, a court defines a jury trial as when a jury is sworn in and seated. If the defendant at that point pled guilty, then you still have a jury trial in the books.”

Johnson agrees that there are ethical problems with the practice.

“I never did it,” he said. “It was not a way to go about it.”

Starting in 1986, Cannizzaro tried an average of more than 100 cases a year before being promoted to the state appeals court, and then running for his current job in 2008.

Cannizzaro inflated the number of jury trials in his court when he was Section J judge, using the pick-and-plea, said Glen Woods, who worked as an assistant district attorney in Cannizzaro’s courtroom in the late 1980s.

“It’s quick to do,” Woods said. “Let’s say you start at 9 a.m. By 12 p.m. you’ve picked a jury and the defendant has pled guilty. The jury gets their lunch, the judge gets his stats –  everybody’s happy.”

Cannizzaro used to do pick-and-pleas fairly regularly when he was a judge, Woods said.

“I saw him say to the defense attorneys, ‘We’re going to pick a jury, and then we’ll let your client plead guilty,’ ” Woods said. “I ended up with 78 felony jury trials in a year, and at least 10 of them were pick-and-pleas.”

Attorneys seldom object because it is a way for them to curry favor with judges who are hungry to get their statistics up.

Official court records for the period were destroyed in the aftermath of Hurricane Katrina so it is difficult to confirm Woods’ version of events.

Defendants pleaded guilty after appearing for trial in 23 of the 158 cases that went to trial at Criminal District Court between July 1, 2010 and Jan. 31 this year, but records don’t distinguish between a regular trial where defendants changed their minds at the last minute, and a pick-and-plea.

Bunton: Concerned about pressure on judges. Photo by Matt Davis.

Chief Public Defender Derwyn Bunton said he is concerned about a resurgence of the pick-and-plea since Cannizzaro set the ambitious goal of 600 trials a year for the 12 Criminal Court judges.

“The practice has been reported to us in a number of cases, and we’re looking into it,” Bunton said. “From our perspective, we see this as an outgrowth of the 600 jury trial thing. There’s a lot of stress on the system, and it’s reacting in a way that is even less efficient.”

Bunton said he doesn’t see why doing more jury trials in year is necessarily good for the justice system. For instance, he has concerns with wearing out jurors by repeatedly putting them through the selection process during their 30-day service.

Two recent trials are alleged to have been pick-and-pleas, Bunton said. The first trial was that of Sylvester Jackson, who pleaded guilty to possession of cocaine before Judge Lynda van Davis on Feb. 10. The second was that of Jewell Hooks, who pleaded guilty to distributing false drugs before White on Feb. 19. Both pleas were entered after a jury had been seated.

Van Davis, through a spokeswoman, admitted to the practice in general, but she did not address the specific case in question.

“She said occasionally if it’s a young district attorney and there’s nothing else going on, then she will do a pick-and-plea to give them experience in picking a jury as long as it doesn’t interfere with another jury pool,” court spokeswoman Margaret Dubuisson said.

That could still be unethical, Ciolino said.

“It’s different, not doing it for the purposes of manufacturing false caseload reports, but it’s still inappropriate,” he said. “I mean, the citizens who are giving their time are supposedly giving their time not to train lawyers but to administer the justice system. That’s not a proper use of those jurors’ time.”

Dubuisson added that van Davis contends that the practice of pick-and-plea used to be much more common than it is now.

“A lot of Cannizzaro’s cases were pick and pleas,” Dubuisson said, based on her information from van Davis.

White denied ever knowingly empanelling a jury when a defendant was about to plead guilty. She said that any scrutiny of the court about pick-and-pleas should reflect back on Cannizzaro’s time as a judge. After all, she said, it was common knowledge that he engaged in this practice.

White said she often empanels juries as a way of forcing both defense attorneys and assistant district attorneys to handle their cases, instead of asking for repeated continuances, but that she does so in part because lawyers are seldom ready to proceed to trial in their cases.

“I’m ready, just like every judge in this building every day, to try a case,” White said. “But getting lawyers to try cases is like putting them in front of a firing squad.”

Cannizzaro took exception to such criticism of his attorneys.

“This month, in this [White’s] section, we had four cases go to trial,” Cannizzaro said. “So those lawyers were ready.”

Cannizzaro said it is odd that White or van Davis felt able to comment on the day-to-day aspects of the way he ran his courtroom as a judge. He pointed out that, when they were working as courthouse attorneys, White never appeared in his courtroom, and van Davis only a handful of times at most.

Cannizzaro did often win former District Attorney Harry Connick’s trophy for the most jury trials, he said. And so did Waldron.

“But believe me,” Cannizzaro said, “it did not affect my ability to act in a professional manner.”

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  • Mary Beth Brinkman

    I wonder if there is any way to find out what judges were on duty at a specific time. A good friend was rear-ended by a drunk driver, his car shoved into an oak tree over a month ago. He was in a coma for 2 weeks due to a severe brain injury, and is facing a very long and expensive rehab process. Of course the drunk driver had no insurance, with multiple DWI’s and also a long “rap” sheet. The judge let him out of jail!!! These are the types of cases that should be automatically incarcerated, with no release, and tried ASAP. All the evidence was obvious and the lives of a family were drastically changed by this criminal…yet he walked. We are not sure if his victim will ever walk again. Where is the JUSTICE?!

  • Lulu Black

    Cannizzaro is full of it. As an attorney practicing in the building throughout the 90’s I KNOW that pick and plea was a common practice AND done with an eye to inflate the judges’ stats. It was a joke, really, and everyone including the judges was in on it. In addition Cannizzaro paid his public defender $1000 a month extra for 10 months or so to handle 3 or 4 “trials” a day. As any trial attorney knows, counsel cannot be prepared to handle this caseload.