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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, December 21, 2007

Judge Shop 'Til You Drop: Lousiana Court Rejects Judge Shopping Argument in Vince Marinello Trial

Vince Marinello, a longtime New Orleans sportscaster and leading media personality on post-Katrina New Orleans, is currently facing charges that he killed his estranged wife, Mary Elizabeth, by shooting her twice in the face.  At Marinello's trial, over defense counsel's objection, the court introduced into evidence, inter alia, a check list found in Marinello's FEMA trailer, which stated, "Gun -- river on the way to mama; ... motive -- maybe -- NOT STRONG; ... bike -- paint; gloves -- ok; mustache -- ok..."  It is alleged that Marinello attempted to disguise himself while he shot Mary as she left a regularly scheduled counseling session. 

Defense counsel had alleged that the search of the FEMA trailer was "impermissible" because detectives sought out Orleans Parish Criminal District Magistrate Commissioner Marie Bookman to sign the warrant that authorized the search. Defense counsel's claim was Bookman was not on duty at the time she signed the warrant and allege the detectives were "judge shopping."  The judge rejected this claim, finding that it was immaterial whether Commissioner Bookman was the "duty" commissioner or not, as the search warrant was properly granted.

This led me to wonder what would constitute improper "judge shopping" in obtaining a warrant.  Unfortunately, Louisiana courts have not provided a clear definition of "judge shopping" in the only three cases I found where they discussed the issue.  In State v. Matthieu, 506 So.2d 1209, 1213 (La. 1987), State v. Loera, 530 So.2d 1271, 1277 (La. App. 2 Cir. 1988), and State v. Allen, 913 So.2d 788 (La. 2005), officers obtained search warrants from judges for searches that were not within the judges' territorial jurisdiction.  In each case, the court either found (1) that the officer went to the judge after unsuccessfully finding a judge in the relevant jurisdiction or (2) that the officer was confused about which judge had jurisdiction based upon Louisiana's parish system.  These courts thus found that these officers had merely obtained warrants in violation of a procedural rule and not that they had engaged in misconduct such as "judge shopping."

While these courts did not provide further explication, it appears to me that the Louisiana courts have set up a "bad faith" test.  In other words, as long as an officer first tries to go to a judge with jurisdiction or a judge whom he thinks has jurisdiction, the fact that he later obtains a warrant from a judge without jurisdiction will not render the warrant invalid.  If, however, an officer first goes to a judge without jurisdiction because he thinks that the judge will grant the warrant while other judges would not have granted the warrant, he does so in "bad faith," and the warrant will be invalid.

-CM

http://lawprofessors.typepad.com/evidenceprof/2007/12/vince-marinello.html

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These courts thus found that these officers had merely obtained warrants in violation of a procedural rule and not that they had engaged in misconduct such as "judge shopping.

Posted by: louisiana jones act attorney | Aug 30, 2011 3:32:59 PM

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