Is it Okay for a Judge to Duct Tape a Defendant’s Mouth Shut in Court?

Good Lord.

Judge John Russo, in Cleveland Ohio, ordered deputies to duct tape defendant Franklyn Williams’ mouth shut because he would not stop talking.

Nothing says law and order like the image of a black man’s mouth being forcibly duct taped by six white deputies, on the order of a white judge, as his white defense lawyer sits next to him and his white prosecutor watches. Right?

Russo says that “he was justified to order the taping because the defendant showed disrespect for the legal system.”

It may be true that the defendant showed disrespect for the legal system, by insisting on speaking when it wasn’t his turn to speak. The judge, however, showed more disrespect for the legal system and for the defendant’s humanity, by the actions that he took.

Is it Legal for a Judge to Duct Tape a Defendant’s Mouth?

Maybe.

Maybe it’s cruel and unusual punishment in violation of the Eighth Amendment. Maybe it’s a violation of judicial ethics. Maybe it’s neither.

Nearly 50 years ago, in Illinois v. Allen, the US Supreme Court held that it did not violate a defendant’s rights when the defendant was removed from the courtroom because he was disruptive. Although the case did not involve duct taping a defendant’s mouth, it did address the possibility in dicta, contemplating three possible remedies for a disruptive defendant:

  • Gag the defendant (duct tape, in this case);
  • Hold the defendant in contempt of court; or
  • Remove them from the courtroom.

Dicta is not law, and it is not binding precedent – Illinois v. Allen’s actual holding is only that a judge may remove a defendant from the courtroom when they are being disruptive.

The Court’s power to hold persons in contempt and to remove a disruptive defendant from the courtroom are well-established, but I am not aware of any U.S. Supreme Court cases that expressly approve gagging a defendant in open court…

But, Is it Okay for a Judge to Duct Tape a Defendant’s Mouth?

Really?

There may be a situation where it is necessary, but I can’t think of one.

Even in Illinois v. Allen, the majority opinion noted 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.”

The defendant had already been convicted of armed robbery, and the judge ultimately sentenced him to 24 years in prison. It seems to me that, if you are about to send a person to prison for 24 years of their life, you can afford an infinite amount of patience to allow that person to say whatever they need to say, for as long as they need.

I’ve seen judges do just that – they know they are not going to help the defendant. They are not going to give them a light sentence. But, they afford them a minimal amount of dignity and, with infinite patience, allow them to speak for as long as they need to speak.

If they are truly being disruptive, and if there is no other reasonable answer, remove them from the courtroom. There is no question that has been approved, and it doesn’t make the courtroom proceedings look like a joke.

What the court did in this case was to completely dehumanize a man who has already lost a large portion of his life to prison. He is, no matter what he has done or where he is going, still a human being who does not deserve to be treated like an animal.

Myrtle Beach, SC Criminal Defense Lawyer

Attorney Daniel A. Selwa represents clients charged with crimes in Myrtle Beach, Conway, Georgetown, and Horry County, SC.

If you have been arrested and charged with a crime in SC, call now at (843) 492-5449 or email us through our website to speak with a defense attorney today.

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