Defense Attorney Held in Contempt for Filming Court Taping Defendant’s Mouth

In Louisiana, a judge ordered a defendant’s mouth taped shut so he could no longer speak. The same judge then held a defense attorney in contempt of court for filming the event on his phone.

Criminal defense lawyer is one of the few professions where going to jail is a job hazard. But wait, if a criminal defense attorney does their job and doesn’t do anything wrong, they would not go to jail, right?

Wrong.

Below, I’ll talk about whether it is okay for a court to duct tape a defendant’s mouth in an American courtroom, what contempt of court means, and give some examples of defense lawyers who went to jail for doing their job

Can a Court Duct Tape a Defendant’s Mouth Shut?

Judge Marilyn Castle ordered defendant Michael Duhon’s mouth taped shut to prevent him from speaking at his sentencing hearing in a Louisiana courtroom last week:

Gregory was in the courtroom July 18 at the same time Michael Duhon was being sentenced for theft of more than $25,000 and money laundering. Duhon repeatedly interrupted the hearing, and Castle ordered a bailiff to tape Duhon’s mouth shut, according to court minutes. Gregory filmed the action with his cellphone.

It’s not the first time it has happened, and it won’t be the last.

The US Supreme Court, 50 years ago in Illinois v. Allen, held that it was okay to remove a defendant from the courtroom if they are being disruptive. Did the Court also give trial courts a green light to duct tape defendants’ mouths?

The Court’s holding in Allen was that it does not violate a defendant’s rights to remove them from the courtroom if they are disruptive. In dicta, which is when the Court expresses an opinion on an issue that is not before them and therefore it is not binding precedent, the Court suggested trial courts could 1) gag the defendant, 2) hold the defendant in contempt, or 3) remove them from the courtroom.

So, has the Supreme Court sanctioned gagging defendants as an acceptable alternative to removing them from the courtroom or holding them in contempt? The Court also expressed an opinion on the propriety of gagging a defendant:

“The use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.”

I agree.

Why Would a Court Gag a Defendant?

A defendant won’t stop talking. Maybe they are loud, maybe they are cursing, maybe they are just ignoring the judge’s orders to be silent.

The judge must maintain order in their courtroom – what is a judge to do?

A patient and compassionate judge will appreciate that this person is in the process of losing their life. Their freedom, their family, all the things that make them human. As they stand before the court, hearing the official pronouncement that ends life as they know it, they are well into the process of being dehumanized.

I have watched patient and compassionate judges allow a defendant to say everything that they feel they need to say – what’s five, ten, or even fifteen minutes compared to the lifetime they are about to lose?

But judges often are not patient. They are used to people doing what they say, when they say. If a judge just can’t stand to let a defendant say his peace, or if a defendant takes it to another level making it impossible to just let him or her say their peace, it’s clear that it is acceptable for the judge to remove the defendant from the courtroom.

Defendants can waive their constitutional rights, including their right to be present at court proceedings. They can also waive their rights implicitly through their actions.

Courts always have the power to hold a person in contempt of court. Repeatedly ignoring a judge’s order to remain silent certainly qualifies. This is not likely to shut up an upset defendant who is demanding to speak, however. Removing them from the courtroom will.

So, why duct tape a defendant’s mouth? Why would a judge choose to physically assault a defendant, humiliating and dehumanizing them by forcibly placing tape over their mouth, when there are other, more effective means of solving the problem?

Can a Defense Attorney be Held in Contempt for Filming It?

As the Court ordered bailiffs to physically restrain and tape a defendant’s mouth shut in the courtroom, one public defender pulled out his phone and recorded the incident. When the judge saw that someone was filming the insanity, she then held the public defender in contempt of court:

At his contempt hearing, where about two dozen lawyers and supporters filled the courtroom, Gregory argued he was not in contempt because court rules do not explicitly bar attorneys from filming. Castle disagreed…

Gregory said he felt there was “a compelling necessity to record the proceeding,” but Castle said the focus was on the inappropriate filming itself, not what the recording captured.

“The subject of what was photographed is irrelevant. It’s that you did it,” Castle said.

Gregory submitted a copy of the video as evidence and Castle put it under seal, making it unavailable to the public.

How exactly was the public defender in contempt of court, if there is no rule prohibiting attorneys from filming?

I mean, there is contempt and then there is contempt. If I am in a courtroom watching the court physically restrain and gag a defendant, I guarantee I am going to be “in contempt” of the court. The court’s actions were contemptuous.

I can’t be held in contempt of court, however, unless I do something that is legally “contempt of court” – for example, disobey a lawful order from the court, disrupt the proceedings, or intentionally insult the court.

Why was the filming “a compelling necessity?” Although there is a written transcript of proceedings in court, there is no video – to preserve what happened, I agree that appellate courts needed to see what happened.

And what about the public? Although the video has not been made public, I also think it is important for the public to know what happens in our courtrooms. If judges are engaging in abusive, vindictive conduct that serves no purpose other than to dehumanize a defendant, people need to know.

Are Defense Lawyers Held in Contempt for Doing Their Jobs?

The public defender in the case above did not go to jail. He was fined $100 and barred from bringing his cellphone to the courtroom. So, why does it matter?

Attorneys are governed by ethics rules – if an attorney violates those rules, they can be disciplined by the state bar. A disciplinary opinion can destroy an attorney’s career – whether they went to jail or were simply fined $100, the fact that there is a disciplinary opinion will dramatically affect the attorney’s ratings on websites like Avvo.com and it will affect their ability to find work and bring in clients for the remainder of their career.

Do judges put lawyers in jail for doing their jobs? Yes. When a judge is “on a power trip,” and if their mindset is that of an angry parent inclined to treat people in their courtroom like children, lawyers get held in contempt of court for doing their jobs and sometimes they go to jail.

For example, in 2007 a public defender was held in contempt of court for refusing to go to trial two hours after he was appointed to a client’s case. The contempt ruling was later overturned by an appellate court.

A judge in Mississippi ordered every person in the courtroom to recite the pledge of allegiance, and then jailed an attorney for refusing to comply. The judge was later fined and received a public reprimand for similar misconduct.

A judge in Wisconsin ordered a public defender to jail for arguing on behalf of his client – the judge released him only after he apologized to the court.

Another judge in Las Vegas put a public defender in jail for attempting to speak for her client. The judge has since been removed from the bench and barred from ever serving as a judge again.

A San Francisco judge held a public defender in contempt for putting his arm around his client. After the court demanded that the client either plead guilty or go to jail. And the court did not hold him in contempt, for putting his arm around his client, until later when he filed a motion for his clients’ release.

A Minnesota judge held an overworked public defender in contempt of court when the attorney did not appear in court because the attorney had also been ordered to be in another court.

A New Mexico judge held a public defender in contempt of court for refusing to accept new cases when there was no funding for the new cases and when accepting the cases would have been in violation of the ethics rules.

A California judge held a defense lawyer in contempt for refusing to violate attorney-client privilege.

An Ohio judge held a defense attorney in contempt for refusing to testify against their client.

Defense attorneys are held in contempt for doing things that are contempt of court. Other times, they are held in contempt for doing their jobs as they appear before an angry, impatient judge…

Criminal Defense Lawyer in Myrtle Beach, Columbia, and Lexington, SC

Lacey Thompson is a SC criminal defense lawyer who accepts cases in the Myrtle Beach, Lexington, and Columbia, SC areas.

If you have been charged with a crime or think that you are under investigation, call the Thompson Defense Firm now at 843-444-6122 or send us an email to set up a free consultation.

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