Trials & Litigation
Probable Cause Hearing Goes from Bad to Worse for Duct-Taped Defendant
Posted Sep 1, 2009 5:18 PM CST
By Martha Neil
A municipal court judge in Canton, Ohio, told a bailiff to get the duct tape—and use it to silence an argumentative defendant at a preliminary hearing in a shoplifting case last week—after the defendant, who was unhappy about his public defender, continued to interrupt the judge, reports the Repository.
Before the tape was applied, Harry Brown, 51, asked to be returned to the prisoner holding area instead, the newspaper recounts. But Judge Stephen Belden, in a conversation that was recorded on a courtroom tape machine, replied "No, you can’t go back there and sit. You’re staying right here."
Belden told the public defender to go sit in the courtroom audience, then allowed the prosecutor to question a police witness. Then he had the bailiff remove Brown's muzzle and asked the defendant if he had any questions for the witness, telling him that he would be duct-taped again if he was "disrespectful."
“I’m not being disrespectful, your honor,” replied Brown. “I think you’re being more disrespectful to me, as, you know—”
At that point, the newspaper reports, the judge ended the hearing and determined that there was probable cause for Brown's arrest, before the defendant had a chance to ask a single question.
As Brown then used some obscenities as he was escorted out the door, the judge told him he could expect an additional 30 days for contempt, the Repository article continues.
Contacted later by the newspaper at the Stark County Jail, Brown described Belden's treatment of him as unnecessary and unethical, and said he wants to file a complaint against the judge with the state supreme court.
Belden tells the newspaper he learned of the duct-tape approach from an out-of-state jurist while attending a training seminar for judges. He said he has never had a defendant duct-taped before and hopes never to do so again.
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Comments
2007-2008 Fed'l Dist. Ct. Clerk
Sep 2, 2009 11:58 AM CST
We had a similar problem with a defendant last term. According to my research, there is no black letter law in this area. I recommended that my judge first remove the defendant from the courtroom; that is the most legally sound option. Second best, I recommended that the judge gag the defendant but not by using duct tape, by using something less hurtful. I think the judge in the case at bar choose the most egregious path, however, it is difficult to say if it violated the defendant’s rights.
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Derec
Sep 2, 2009 3:12 PM CST
BEAUTIFUL! Nice work your Honor! The defendant had ample opportunity to cross or motion, but chose instead to run his mouth!
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James
Sep 2, 2009 4:51 PM CST
Duct taping a defendant’s mouth could actually kill him. A when a person’s nasal passageways becomes stuffed up that person will breathe through one’s mouth. Remove the defendant from the courtroom… fine, but don’t put his life in danger. Between stuff like this and the ability of judges to issue contempt citations willy nilly, someone needs to take them down a peg.
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Dick
Sep 2, 2009 7:55 PM CST
James needs to do a little more homework on what authority a judge has to hold a person in contempt…..far from a willy nilly procedure…....................
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B. McLeod
Sep 2, 2009 9:45 PM CST
I guess you really can fix anything with duct tape.
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Raleigh
Sep 4, 2009 6:08 AM CST
This is appalling and frightening; being claustrophobic, I consider this cruel and unusual; the Judge should arm the Bailiff with a taser instead; less life threatening.
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Bill
Sep 4, 2009 6:21 AM CST
Let’s see, you could either (1) have your mouth duct taped, (2) get tased or (3) shut the hell up and stop being an a-hole.
Hmmmm…
In this guy’s case, apparently (3) was beyond his abilities. So that leaves him with duct tape or - in the opinion of #6 - getting tased. I’d be looking at the duct tape.
Duct tape over the mouth for mouthing off to the judge in open court is “cruel and unusual,” but a Taser isn’t?
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NN
Sep 4, 2009 6:47 AM CST
As they say: “Silence is Golden and Duct Tape is Silver”
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DCP
Sep 4, 2009 7:03 AM CST
I have a much bigger problem with the judge dismissing the public defender than I do with the duct tape.
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adam
Sep 4, 2009 7:46 AM CST
That’s the way to build respect for the institution of law!
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TW
Sep 4, 2009 8:24 AM CST
What training seminar for judges includes a section on duct taping defendants? Did it also include a section on depriving a duct taped defendant the benefit of counsel? I understand that the defendant was a pain but to muzzle a defendant and dismiss his legal representation during a probable cause hearing is the act of a tyrant, not a judge.
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Adamius
Sep 4, 2009 8:38 AM CST
This is abominable conduct and the judge should be reprimanded for it, on a number of fronts. 1. using duct tape which is probably even going to tear skin or hair follicles off, 2. compromising the guy’s abilty to breathe, 3. dismissing his counsel in the middle of a proceeding, and 4. barely recognizing the guy’s right to cross and completely destroying his ability to object. SOMEONE on that side of the courtroom has to remain unmuzzled and when you tape him and dismiss his counsel, that simply isn’t the case anymore. There are also many less inhumane ways to silence a disruptive jerk while preserving his legal voice. Judges like this make me ashamed for our whole profession.
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Mikey
Sep 4, 2009 8:42 AM CST
F’ing hilarious. Kudos to the judge for having some cajones. #5, B.McLeod, nicely done!
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HANG 'EM HIGH
Sep 4, 2009 9:00 AM CST
I LOVE IT!!! There are too many issies out thre griping about civil rights ...WAH WAH WAH!!
I like that this Judge didn’t take any crap from this dirtbag!
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AndytheLawyer
Sep 4, 2009 9:15 AM CST
An alternative would have been: “Bailiff, take this man over your knee and spank him.”
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Kalifornia Arnold
Sep 4, 2009 9:24 AM CST
You could say that defendant was guilty of miscon-duct (at least the judge got it on tape)
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D.P.
Sep 4, 2009 9:27 AM CST
Whoever suggested that being tased is a better option than duct tape is insane themselves. People can have heart attacks from the electricity and very recently in Ohio, a man caught fire from being tased by police. I would much rather risk a few hair follicles or skin cells to errant duct tape than risk being set on fire in a paper-filled court room!!!
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Cullen Seltzer
Sep 4, 2009 9:39 AM CST
There’s a right way and wrong way to handle a motion to disqualify or substitute counsel, or to handle a disruptive defendant. Duct taping a human, then disallowing any cross-examination at all because the human had the temerity to try and explain that he didn’t intend to be disrespectful, strikes me as the wrong way. Welcome to your Due Process rights, Mr. Defendant: no lawyer, no talking, no cross-examination - just humiliation and summary rulings against you.
Of course, there may be more to this story than what this short article reported. My immediate reaction, though, is not to offer congratulations to the judge in the case.
______
“Belden told the public defender to go sit in the courtroom audience, then allowed the prosecutor to question a police witness. Then he had the bailiff remove Brown’s muzzle and asked the defendant if he had any questions for the witness, telling him that he would be duct-taped again if he was “disrespectful.”
“I’m not being disrespectful, your honor,” replied Brown. “I think you’re being more disrespectful to me, as, you know—”
At that point, the newspaper reports, the judge ended the hearing and determined that there was probable cause for Brown’s arrest, before the defendant had a chance to ask a single question.”
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sb
Sep 4, 2009 9:49 AM CST
Comment removed by moderator.
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sb
Sep 4, 2009 9:54 AM CST
Adamius, I apologize for my outburst. I’m going to go find some duct tape and wrap my fingers up. Unless you would find that too inhumane….
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sb
Sep 4, 2009 9:57 AM CST
Seriously?? Removed?? I’d like to appeal the moderator’s decision on the ground that apparently he or she didn’t get that joke. Pun-ch ... get it?? It’s just a joke!
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sb
Sep 4, 2009 10:13 AM CST
It wasn’t the joke that she objected to; I apparently got a bit carried away with namecalling. Sorry, I don’t normally do that. Here is the post again, with the objectionable language (and the joke, because it wasn’t funny anyway) removed:
Listen up, [my esteemed colleagues]: #1: Duct tape is much less likely to kill someone than a tazer. Anytime you apply voltage to the human body, the parts of the body that require regular pulses of electricity to work properly—like, say, the heart—can be short-circuited and stop working. Duct tape, on the other hand, covers up the mouth, but a person can still breathe through his or her nose. And, remember, this is the important part: we have a whole courtroom of people watching him to make sure he can breathe. Unless the guy was 90 years old, he’s not likely to experience a skin tear because of a piece of duct tape. And hair?? It was just a piece over his mouth, not wrapped around his head. Even so, peel in the direction the hair lies and you don’t pull too many out. Perfectly safe. This is not a situation where the guy was duct taped and then thrown into isolation, where I would agree that the risk to his life outweighed any possible reason for the tape.
#2: If the judge chose to kick the guy out instead of taping him, at least as many people would now be saying his due process rights were violated, as he was denied the opportunity to participate in his own defense.
#3: Counsel wasn’t dismissed by the judge; if you read carefully, you will find that the defendant dismissed his own counsel. As this was a preliminary hearing and not a trial on the merits, he didn’t have too many of his rights trampled upon.
#4: Adamius, can you please let us less enlighted people know what “less inhumane ways” there are that are effective at silencing a disruptive and nonresponsive defendant while preserving his right to speak at appropriate times? Again, he dismissed his own counsel, then proceeded to interrupt the proceedings, then when he was given an opportunity to cross examine, he apparently hadn’t gotten the point the judge was trying to convey, even after he had his mouth taped shut. So, please, [let the rest of us know]: what exactly could the judge do that both kept the defendant quiet and allowed him to speak when appropriate?
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Marty
Sep 4, 2009 12:19 PM CST
What would have happened if the first words out the defendant’s mouth, after the tape was removed was, ” I object to question 3 as leading.”?
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sb
Sep 4, 2009 1:10 PM CST
Marty, the objection would be overruled, because this was a prelim, not a trial.
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Jim
Sep 4, 2009 1:28 PM CST
Where is a Cone of Silence when you really need one?
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Nathan McGregor
Sep 4, 2009 2:53 PM CST
In fact, the Supreme Court has refused to condemn binding and gagging a defendant in all circumstances: “[I]n some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as [defendant] did here.” Illinois v. Allen, 397 U.S. 337 (1970).
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Tony
Sep 4, 2009 3:13 PM CST
The appropriate response if the defendant was disrupting the procedings was to have him removed from the courtroom, preferably to an observation room where he could view the procedings without disrupting. What the judge did was more disruptive than the defendant and he raises questions about the validity of the whole proceding and his impartiality. This is just one more example of abusive conduct by judges who lack judgement. And, yes, the ability for a judge to imprison people in the courtroom without so much as a hearing on the matter is willy nilly and entirley contrary to every principal of jurisprudence in this country and most of the western world.
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B. McLeod
Sep 4, 2009 4:05 PM CST
There must be more to the story, to explain why the public defender followed the direction to go sit in the gallery.
In any normal circumstance, one might expect defense counsel to come back with their very best Martin Sheen-as-Robert E. Lee-response, “Excuse me, Your Honor, but if I have inadvertently made any enigmatic or obscure comments here, please note that I was not moving to withdraw as counsel for this defendant,, nor do I have a basis to do so.”
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Avon
Sep 4, 2009 6:40 PM CST
Of course defendants will ideally be respectful.
But I think it’s nuts (ridiculous, insane, off-the-wall) to actually expect defendants to be as patient, un-anxious, educated in manners, socially skilled, etc as judges. Punishing them for being themselves is not justice (even though retaliating against a rude “criminal” feels gratifying to some, as justice feels gratifying). The guy’s final remark about the judge being disrespectful was not only literally true (the judge surely wouldn’t contend that he was feeling respect for the defendant by that point!), but it was also clearly caused by the judge’s tactic.
Judges are expected to rise to a much higher standard than other people (even lawyers). It’s in writing, it’s important to their mission, and it shouldn’t be forgotten.
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sb
Sep 8, 2009 8:42 AM CST
McLeod, as in my previous posts, if you take a look at the Canton Repository’s coverage of the incident the defendant notified the court that he didn’t want that attorney representing him. Follow the link and then listen to the actual recordings of the courtroom proceedings (links on the left side of the Repository’s site). The judge told the attorney to sit in the gallery, retaining her as stand-by counsel.
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B. McLeod
Sep 8, 2009 4:31 PM CST
Ah. The audio is helpful. The source of the defendant’s complaint seems to have been his perception that the public defender, who had only had a few minutes contact with him, was not doing much to represent him anyway. This is probably largely due to the defendant not understanding that there was not much his defender would be able to do at the preliminary hearing to affect the outcome.
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