Have you ever had to gag a defendant during proceedings?

During Trial in August, the prospective jury persons entered the court room to assemble for voir dire. The defendant stood up and started 'speaking the truth' to each of them, telling them his version of the facts as he saw them. His attorney kept trying to tell him to quiet down, but the defendant quickly accused him of 'hatrism' and as being a part of the conspriacy which forced the defendant to eat poisoned food. The defendant continued when the judge entered the court room and explained to the judge that the judge had violated his rights and was named in the defendant's lawsuit.

The judge was not amused. A mistrial was declared and a shrink appointed to determine competency.

The shrink says the defendant is competent.

We're set for trial Sept. 20th. The Bailiff asked me to find out what is required and what procedures other courts have followed when the judge orders the defendant to be 'silenced'.

Anyone have insight or suggestions? I've read through some of the caselaw but it's not very clear. I mean, can the bailiff use a bandana? A piece of rope? Do you have to order something specific? Is there a requirement that a paramedic/nurse be nearby monitoring the bad guy?

In a very similar situation I have seen a judge order the defendant removed from the courtroom to an adjacent room to watch his trial on closed circuit TV while his attorney sat at counsel table alone. He was convicted.

What about hiring someone to serve as a surrogate defendant? He acts like the defendant, only better. That way, the jury doesn't know the defendant is acting up; the defendant can't complain that he was harmed by exclusion from the courtroom. And the judge isn't interrrupted by speeches by the defendant.

And, you could give the defense attorney and real defendant walkie talkies with earphones, so they could talk to each other during the trial for separate rooms. Heck, for most defendants, they would probably do better because they could hire a better looking person to serve as the surrogate defendant.

Now, if they have to testify, things could get tricky. Perhaps I could sell this idea as a new reality TV show.

[This message was edited by John Bradley on 09-01-04 at .]

quote:

---

Originally posted by Chris Schneider:
In a very similar situation I have seen a judge order the defendant removed from the courtroom to an adjacent room to watch his trial on closed circuit TV while his attorney sat at counsel table alone. He was convicted.

---

Our holdover cells are equipped so that the defendant can monitor the proceedings from the cell.

A disruptive defendant can be removed from the courtroom. Just be careful to document the need for it in the record because you will see it on appeal if that is the decision the judge makes.

Just read this in the digest:

Kessel v State
14th Court of Appeals - Houston
July 27, 2004 - 14-03-00271-CR
Opinion By: Frost, J.

Absence of defendant during punishment phase, constitutional error requiring new sentencing hearing.

On appeal, D argued that the trial court erred by ordering D removed from the courtroom and taken back to the jail, causing him to miss the entire punishment phase of his jury trial. Held: Reversed and remand for a new punishment hearing. A criminal defendant may lose the constitutional right to be present at trial if, �after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom� [llinois v Allen, 397 US 337, 338]. Trial courts confronted with �disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.� When a defendant�s behavior is of �an extreme and aggravated nature,� that discretion encompasses expulsion from the courtroom [Allen, 397 U.S. at 346]. However, rather than engaging in �noisy, disorderly, and disruptive� speech and conduct, D made no sound whatsoever. D simply sat, �slumped over in his chair,� silent and �nonresponsive.� The trial court stated that, sometime earlier, D had removed his �classification badge.� The trial court also stated that D�s behavior was consistent with his behavior when he was arrested, apparently referring to D�s flight from police officers before he was apprehended and his escape from a police car after he was handcuffed. Although all these actions may have been reprehensible, D�s removal of his classification badge, his flight from police officers, or his apparent escape from a police car were acts that took place outside the courtroom and none of them provided a sufficient basis to remove D from the courtroom during the punishment phase of his trial. The trial court stated that it had no doubt that D was pretending to be physically incapacitated, but there were indications in the record that D might have been experiencing genuine health problems. Furthermore, even presuming that D was only pretending to have suffered a seizure, as the trial court believed, the trial court did not warn D that it would order him removed from the courtroom if he continued the allegedly disruptive behavior [See Allen, 397 U.S. at 343--stating that defendant must be warned before being removed from courtroom]. The trial court�s order removing D from the courtroom for the entire punishment phase of his trial was not �within the zone of reasonable disagreement� and, because a jury is likely to make a negative inference simply from the fact that the trial court has ordered the accused removed, the constitutional error could not be considered harmless beyond a reasonable doubt.

I understand that there is a gadget made for controlling defendants like yours. As I understand it, it is very much like a shock collar used for training dogs, but much stronger.

The gadget is worn under the defendant's shirt. The bailiff has a radio, and if the defendant acts up, he just has to press a button on his radio, and the def. will be jolted with super-powerful electrical current, that will cause him to fall on the floor and not move for some time. Inspite of it's tremendous power, it doesn't actually injure the defendant. Even so, I don't think you want to be touching the guy when the bailiff presses the button.

Give it a try & let us know how well it works.

[This message was edited by Terry Breen on 09-03-04 at .]

How 'bout this as a way to control an uncontrollable defendant: I had a defendant that I REALLY wanted to try. Recent parolee, raped the church secretary in the pastor's office. Confession, ID, DNA. Great case. But the defense attorney refused to provide this guy with street clothes for trial. (His family, naturally, was unsupportive.) So I went to Goodwill and bought the defendant a plain blue button-down dress shirt and some navy blue dress pants. But I made sure they were the stiffest, itchiest, most unnatural fabric on Earth. These pants could stand up by themselves. They looked perfectly resptectable, but in the middle of the victim's testimony, before she even had to describe the rape, the judge took a break, and the defendant started yelling, "Get my lawyer, I want to take that 60 years!" He did. And I credit the Goodwill pants.

Lot's of problems like these could be resolved if we were more practical about the participation of the jury. How about giving the jury permission to make certain statements during trial. Of course, they would need to huddle first and obtain unanimous consent, but then they could, all together, do the following during trial:

1) Tell the defendant to shut up because they weren't buying his schtick;

2) Tell the lawyers to quit arguing and get along with the trial;

3) One by one raise their hand when they think the defenant is guilty (only tentatively, of course);

4) Or even ask the prosecutor if he/she really wants them to deliberate over his/her weak case.

I have heard Judges threaten to duct tape a defendant's mouth. I have even seen one place a roll on the bench for emphasis but have never seen it done. I tried a defendant about six years ago who was dissatisfied with his appointed counsel. (It seems his counsel was unable to convince me to waive the habitual enhancement on his robbery case. Before the jury came in, I asked the Judge to admonish the defendant concerning outbursts during the trial. She smiled and replied,"I'm sure Mr. Gorham will conduct himself like a gentleman." The last juror had not filed in to the room and Mr. Gorham was on his feet and issueng the most impressive string of invective I had ever heard. The Judge calmly asked the jury to retire, heard the Def out and then explained that the next time he would be wearing silver tape on his face.