Livers: Lafayette leading the state in eyeing solutions to diverting the mentally ill from jails _lowres

Advocate staff photo by LESLIE WESTBROOK -- Marilyn Castle, a 15th Judicial District judge in Lafayette, participates in a small-group discussion during the Mental Health--Criminal Justice Collaborative meeting Wednesday, December 9, 2015, at the Lafayette Parish Sheriff's Department Public Safety Complex in Lafayette, La. Participants included judicial and law enforcement personnel and state and local health representatives.

A man had his mouth taped shut on order from 15th Judicial District Court Judge Marilyn Castle after repeated interruptions during a hearing July 18 in Lafayette.

The man, Michael C. Duhon, was in court for sentencing after being found guilty in February of theft over $25,000 and money laundering.

According to court minutes, Duhon objected when the judge asked him to stop submitting motions on his own behalf in the case instead of through his attorney. He objected again when evidence was submitted. He attempted to offer arguments against the inclusion of the evidence and was told to speak through his attorney.

After requesting at least twice for Duhon to remain quiet, Castle ordered the bailiff to tape Duhon’s mouth shut during witness testimony.

“During testimony of Tanya Ortego, the Court ordered the Bailiff to tape the defendant’s mouth due to the defendant’s consistent interruption of this court proceeding and multiple instructions from the Court to remain silent,” the minutes said.

The tape was removed after an objection from Duhon’s public defense attorney, Aaron Adams. He requested the judge remove his client from the courtroom instead of putting duct tape on his client's mouth.

The minutes don’t provide details about what Duhon said, how long his mouth was taped or if Duhon addressed being duct taped after the tape was removed. They also don’t fully explore Adams’ objection.

An audio recording of the proceeding was unavailable.

Adams declined Wednesday to comment on the duct tape incident because it is linked to his client’s ongoing court proceedings.

Castle went on to sentence Duhon to 11 years in prison with credit for time served. The judge also recommended he be transferred to a facility where he could receive mental health treatment.  

Public defender Michael Gregory, who does not represent Duhon but was present in court at the time of the incident, is facing potential contempt charges for filming the encounter on his cell phone, according to court minutes.

Gregory met with Castle for a private in-chamber conference with representation after the hearing. He was then ordered to appear in court to determine if he will be held in contempt.

Minutes also show “the Court further ordered that all filming dissemination from this court proceeding must be retrieved/destroyed….”

Gregory’s court appearance is scheduled for 9 a.m. Friday in front of Castle.

The court order given to Gregory states he violated district court rules “by broadcasting, televising, recording or taking photographs in the courtroom” when he recorded “a portion of the court proceedings during a sentencing hearing and broadcast those proceedings to others.”

Witness subpoenas for the contempt hearing were issued to Robert Odinet, Marie Young, Cyndel Roy, Olga Hebert and Tiffany Boudreaux, all with the Lafayette Parish District Attorney’s Office.

Gregory declined to comment on the issue ahead of his hearing.

Castle was first elected as a district judge in 1998 and was re-elected in 2014 for her current term, which runs through 2020. The 15th district court covers Acadia, Lafayette and Vermilion parishes, and Castle serves out of the district's main Lafayette court. 

Castle’s secretary Janell Credeur spoke to Castle on Wednesday and said the judge "can’t comment because the Code of Judicial Conduct prohibits her from commenting on ongoing proceedings.”

Public opinion on duct taping and gagging practices is mixed, though some judicial decisions support the option in certain cases. In 1970, the United States Supreme Court said in Illinois v. Allen a trial judge could order a defendant gagged during trial to allow him or her to remain in the courtroom.

In that case, an Illinois armed robbery suspect argued he had been denied the right to remain in the courtroom during his trial after he was removed following multiple outbursts.

“It is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country…No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations,” the majority opinion said.

Despite acknowledging gagging may be utilized, Justice Hugo Black went on to say gagging a person during a trial or other court proceeding runs counter to the dignity the judge is trying to enforce.

“But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort…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,” Black wrote in the majority opinion.

Justice William Brennan, agreeing, wrote that gagging “…offends not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law.”

Similar decisions have been made in Louisiana cases, such as State v. Brewer in 1974.

In that case, two inmates at the Louisiana State Penitentiary at Angola were on trial for homicide and were both gagged and bound. The state Supreme Court justices found the court was justified in gagging one, but statements made by the other defendant didn’t show intent to disrupt the court and didn’t require him to be gagged.

Even if it’s allowed in court, the practice draws strong opinions. A judge in Ohio made national headlines last year when he had a robbery suspect’s mouth duct taped shut when he continued to speak over the judge and his attorney after being told to remain quiet, according to a story from CNN.

Video from WJW-TV in Cleveland showed Cuyahoga County Judge John Russo order several deputies to tape suspect Franklyn Williams’ mouth shut. Russo later issued an apology.

Katie Schwartzmann, legal director for the ACLU of Louisiana, said Castle’s decision to silence Duhon with duct tape seemed unnecessary based on the available facts of the case.

"The use of duct tape to silence someone in a courtroom is shocking. A judge can order silence in a courtroom but applying duct tape to a person’s mouth is a dehumanizing and brutal way to accomplish that goal,” Schwartzmann said. “Judges have many available tools to enforce compliance with their orders and resorting to this seems inappropriate and unnecessary."

Email Katie Gagliano at kgagliano@theadvocate.com