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Cleveland judge walked legal high-wire when he ordered guards to duct-tape defendant’s mouth

August 6, 2018

Cleveland judge walked legal high-wire when he ordered guards to duct-tape defendant’s mouth

CLEVELAND, Ohio -- A local judge’s order to duct-tape shut the mouth of a man who refused to keep quiet during his sentencing hearing on Tuesday is tantamount to “cruel and unusual punishment,” according to a Cincinnati-area criminal defense attorney.

H. Louis Sirkin, a 53-year veteran attorney who specializes in First Amendment and civil rights law, said Cuyahoga County Common Pleas Court Judge John J. Russo should have ordered deputies to remove 32-year-old Franklyn Williams from his courtroom when he ignored several warnings to keep quiet.

But the judge’s order to tape over Williams’s mouth and skin was demeaning, demoralizing and unnecessary, Sirkin said.

“I really find that outrageous,” Sirkin said. “I’m really surprised that somebody would do that.”

Sirkin was among three lawyers contacted by cleveland.com to discuss Russo’s controversial decision, which was captured in video shot and edited by WJW Channel 8. While Sirkin and ACLU of Ohio staff attorney Elizabeth Bonham were quick to denounce the duct-taping, Lawrence Walters, an Orlando-area constitutional law attorney who represents clients around the country, said that Russo may have taken the most measured response to both protect Williams’s Constitutional right to be present at his own proceedings and to maintain order in his courtroom.

“Binding and gagging a defendant should be an absolute last resort,” Walters said. “It’s demeaning, it looks disturbing and I’m sure is very difficult for defendant to endure. On the same token, if you’re a defendant in court proceedings, you have a responsibility to listen to the judge, whose job it is to keep decorum.”

A call to Cuyahoga County Common Pleas Court Judge John J. Russo seeking an explanation as to why he didn’t take a less drastic measure to quell Williams’s outbursts was returned by a court spokesman who said the court could not comment on the case because it could be appealed.

What happened? 

Williams’s history of disrupting his proceedings dates back to his December trial, where a jury convicted him of carrying out three armed robberies. Williams wasn’t in the courtroom to hear his verdict because he cut off his ankle monitor and left the state in the middle of the trial.

Russo allowed the trial to continue in his absence. 

Police arrested him in Omaha, Nebraska, on drug charges and shipped back to Cleveland in late July for his Tuesday sentencing. 

Two prosecutors in the room during Tuesday’s sentencing told cleveland.com that Williams repeatedly tried to talk over Russo, the prosecutors and his defense attorneys. Russo told Williams several times to remain quiet and warned Williams that security would gag him if he continued with his outbursts, the prosecutors said.

So they did.

Russo later ordered deputies to remove the tape and gave him Williams a chance to address the court. 

Supreme Court wonders  

The Sixth Amendment to the Constitution guarantees each person the right to confront their accusers and be present and participate in hearings against them, Walters said. But the Supreme Court held in 1970 that defendants can sometimes waive that right when they’re disruptive during court proceedings.

In Illinois v. Allen, the defendant said a judge violated his rights when he ordered him removed from the courtroom.

The high court held that judges should have leeway in deciding how to address each case. The court gave three possible remedies to deal with “obstreperous” defendants: gag them and allow them to remain in the courtroom, cite them for contempt or take them out of the courtroom until they promises to conduct themselves properly.

But even in the nearly 50-year-old decision, the court openly wrestled with the implications of gagging a defendant.

Justice Hugo Black wrote in the majority opinion that not only could the sight of a defendant in shackles and gags sway a jury into thinking the defendant is guilty, it would also take away the defendant’s ability to effectively communicate with his lawyer.

Those points would not apply to Williams because Russo’s order occurred at sentencing, with no jury around to see him gagged. 

But Black added that “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.”

Still, the court ultimately said that binding and gagging a defendant may be the most reasonable option for a judge to deal with a troublesome defendant in some cases “for reasons we will not attempt to foresee,” and approved the technique.

It’s because of that ruling that Russo’s order is unlikely to raise any constitutional issues, Walters said. 

By keeping Williams in the courtroom and then removing the tape later and allowing him to speak, Russo kept both the Sixth Amendment right to be present and his right to address the court before he was sentenced in tact, Walters said.

“You don’t have an unrestricted right to speak in a courtroom,” Walters said. “The judge gets to decide who speaks and when.”

But Bonham argued that, just because the Russo’s order didn’t violate the constitution, doesn’t mean it was the right decision for him to make.

The spectacle of six armed white security officers carrying out the order of a white judge and duct-taping shut the mouth of a black man for repeatedly speaking out of turn before he was sent to prison for 24 years offered a glimpse into a “deeply flawed criminal justice system,” Bonham said. 

“Whether or not this is right as a matter of law, it’s really wrong to undermine and humiliate and dominate a person who is already facing a really long criminal sentence,” Bonham said.

To comment on this story, please visit Monday’s crime and courts comments page.

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