When Rules No Longer Apply

The defendant, Michael Duhon, wouldn’t stop. He was being sentenced in Judge Marilyn Castle’s courtroom for the theft of more than $25,000 and money laundering, and he wouldn’t stop.

Duhon repeatedly interrupted the hearing, and Castle ordered a bailiff to tape Duhon’s mouth shut, according to court minutes.

Clearly, Duhon’s lawyer, Aaron Adams, had no control over his client. Whether the best course of action was to tape his mouth shut or employ other options is subject to debate. In some courts, shock belts are used to inflict pain on a misbehaving defendant.

In others, the defendant would have been removed from the courtroom, thus denying him the opportunity to be present for a critical phase of the proceedings. Some courts have the capacity to let a troublesome defendant watch from another room on video. Others do not. When a defendant keeps interrupting proceedings, there is no good answer.

Had Adams been able to get his client to stop disrupting the sentence, the problem would have been resolved. Since he couldn’t, the judge did. Public defender Michael Gregory, who apparently had no connection to the case or the defendant, did not take this well.

The contempt hearing was called after Gregory filmed a bailiff putting tape on Michael C. Duhon’s mouth during his July 18 sentencing hearing. Duhon repeatedly objected during the proceedings despite requests from Castle to remain silent or speak through his attorney, Aaron Adams.

When Duhon continued to speak, Castle ordered the bailiff to tape his mouth shut. At that time, Gregory reportedly took out his phone and started filming.

While attorneys are allowed to keep their cellphones in the courtroom, recording is frowned upon. It’s against the rules, although the way the rules are phrased, it appears that it’s a rule for judges, not for lawyers.

The Louisiana Supreme Court’s rules for district courts say, “a judge should prohibit broadcasting, televising, recording, or the taking of photographs in the courtroom and areas immediately adjacent thereto, at least during sessions of court or recesses between sessions.”

Gregory argued the court rules address how the judge should manage the court but don’t expressly bar attorneys from recording.

While the argument that the precatory rule applies only to judges, and creates no per se prohibition on lawyers, it’s a strained interpretation. What made Gregory feel that there was a need to record conduct that could otherwise be the subject of a grievance with every eyeball in the audience, not to mention the court record, serving as witness is unclear. Videos go viral? Nobody reads the book, but everybody watches the movie? Whatever. Gregory recorded and Judge Castle held him in contempt.

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.

At the contempt hearing, Judge Castle barred Gregory from bringing his cellphone into courthouse for six months and a $100 fine.

“This is not a pleasurable thing to do,” Castle said in the Friday hearing. “If I were to ignore it, I would be in violation of the rules.”

As do cops when a cop is in the dock, PDs filled the cheap seats for the hearing, complaining that Judge Castle was using the “no recording” rule to deflect from her own wrongdoing.

Amanda Koons, a public defender in the Harris County Public Defender’s Office in Houston, who did three years as a PD in Lafayette, said “duct-taping someone isn’t appropriate or humane, especially when the option to temporarily remove the defendant from the courtroom exists.”

Amanda Cannon, a New Iberia public defender, said barring discussion of the duct-taping ignored the context that influenced Gregory’s actions and masked the egregious behavior that took place.

“Protecting someone and their dignity and humanity is more important than this judicial canon,” she said.

And the foremost arbiter of distant courtroom morality, Joe Patrice, offered his deeply considered if factually inept view:

Thankfully, Duhon’s public defender [sic] was there to object and suggest that, you know, Duhon be removed from the courtroom for his lack of decorum instead of treated like an extra at Abu Ghraib.

Even if taping Duhon’s mouth shut was inhumane, was there a compelling need to record it? Could the witnesses not have grieved the judge for her actions? But was this affront to “dignity and humanity” more important than “this judicial canon”? Beyond being rather facile and vague cries, which have become banal to passionate public defenders, who decides?

Despite criticism about the appropriateness of Castle’s actions, there isn’t a rule or law that makes it illegal or impermissible for a judge to gag a defendant. Cases decided by the Louisiana Supreme Court and U.S. Supreme Court have established judges can gag defendants to maintain their presence in court when their outbursts are disruptive to the court proceedings.

Had Judge Castle ordered Duhon removed from the courtroom during his sentence, would this have been the more “responsible, judicious way”? It would have deprived a defendant from being present during his sentencing, which certainly isn’t the sort of remedy that delights a criminal defense lawyer, or even a public defender. Is this now a preferred method of preventing courtroom disruption?

Whether Judge Castle’s ordering Duhon’s mouth taped shut was improper, even if entirely lawful, is a fair subject for debate. Although, it should be noted that defendants suffer far worse, and more permanent, indignities in the process of arrest and prosecution than this.

But does a public defender’s feelings about a judge’s “inhumane” remedy entitle him to decide for himself that he’s no longer bound by the courtroom rules? That presents a different, and separate, issue. Nothing prevented Gregory, or Adams who actually represented Duhon, from filing a complaint against Judge Castle if he felt so strongly, but that he felt the need to post the next viral video doesn’t mean the rules no longer apply. As with civil disobedience, you make the call you deem necessary, but do so realizing that there will be consequences.

19 thoughts on “When Rules No Longer Apply

  1. Oskar

    Lawyer litigating in the court of social media while in an actual courtroom? Why not just become an internet warrior and have less student debt?

    1. Howl

      The preceding was brought to you by The American Duct Tape Council.
      “It’s What Holds America Together”

  2. Skink

    Jeez, you swung and wiffed, again. The PD saw what must be wrongful conduct, so wrongful that no one would believe it happened without video. He was compelled to record the evidence. His oath to the Constitution demanded it! There was no need for him to consider whether it really was wrongful. Damnit, he was compelled! What else could he do?

    Anyone that spends more than a little time in criminal divisions has seen this type of defendant. Shit, I’ve seen it in civil divisions. Duct tape was invented for just this purpose. But I blame one of your favorite subjects for this outrage: sentencing guidelines. Before those, most judges would inform the defendant that every time he said “fuck,” two years would be added to the sentence. The defendant would say, “fuckfuckfuckfuck.” Most judges aren’t good counters, so the likely retort would be, “fine–50 years.”

    1. SHG Post author

      I have a nice talk with my clients, advising them that as upset as they are, sentencing is not an opportunity to piss off the judge as much as possible and cement the notion in the court’s mind that you are incorrigible. Oddly, my clients have almost always listened, but that’s just my lived experience.

  3. Keith

    If you had asked me years ago, before the “but for video” and “why would they lie” phenomena were laid bare, I may have had a stronger agreement that the rules were more necessary here than an exception.

    Now, I’m not so sure.

    (p.s. didn’t they have a “no pic” rule at Abu Graib?)

    1. SHG Post author

      There’s a rather big difference between things that happen where nobody sees them and things that happen where everybody sees them, plus the court reporter transcribes it. Details matter.

      1. Keith

        There’s also the notion that it’s a stupid rule (in that these are public servants in a public courtroom) and judges shouldn’t be able to shut off the cameras while ruling that police and legislators must allow them to keep rolling.

        But amazingly, kings can control what happens in castles.
        (slightly outside the parameters of your post)

  4. Howl

    “. . . PDs filled the cheap seats for the hearing . . .”

    Aren’t their clients more deserving of their time?

  5. Jay

    Greenfield’s principles: sending cops to prison-wrong
    Taping people’s mouths shut-good
    Or is this just your growing hatred of pds on display?

  6. MonitorsMost

    Keeping control of your courtroom while maintaining proper decorum is an important part of being a judge. Of course the content of the hearing mattered in regard to why it was recorded. I doubt the judge would have been in as contempting if the video was taken in at the end of an adoption proceeding.

    1. Brian

      Hey, I can answer this one!

      At our adoption hearing in Cook County, IL, the judge still enforced the “no photos or videos in the courtroom” rule. After the session was done, he joined us in the waiting room for pictures.

      I kind of doubt he would have held anyone in contempt for videotaping the actual hearing, but I also doubt that any prospective parent at an uncontested adoption hearing would be insane or stupid enough to do so.

  7. Richard Kopf

    SHG,

    Sorry I am late to the party.

    The “no video” rule in these parts is enforced largely to protect snitches. Since I am all for more snitches and fewer trials I like the rule. Your mileage may vary.

    All the best.

    RGK

    PS As for duct tape, I use it only on my grandchildren.

  8. L. Phillips

    That is a wonderful idea! Way cheaper than flex cuffs when the little darlings go ballistic. Can’t believe I didn’t think of it.

Comments are closed.