Friday, March 9, 2018

Shocking, simply shocking

Judge George Gallagher in Fort Worth, Texas must have an affinity for the Middle Ages. Either that or the Spanish Inquisition.

You see, Judge Gallagher thought it was perfectly acceptable to order a defendant to be shocked with 50,000 volts whenever he gave an answer hizzoner didn't like.

Terry Lee Morris was on trial for soliciting sexual performance from a minor in 2014. On the first day of trial Judge Gallagher asked Mr. Morris for his plea. Mr. Morris objected to the shock collar on his ankle. He also informed the judge that he had a pending lawsuit against both the judge and his attorney, Billy Ray, with regard to the shock collar.

After excusing the jury, Judge Gallagher asked Mr. Morris if he was going to behave during trial. Mr. Morris pointed out that he had filed a motion to recuse the judge. Judge Gallagher then ordered the deputy to shock him. Once again the judge asked Mr. Morris if he was going to behave. Mr. Morris told the judge he was an MHMRA patient and the judge once again ordered the deputy to shock him. The judge kept berating Mr. Morris who accused the judge of torturing him. You can guess what happened next.

Mr. Morris left the courtroom and refused to return and his trial was conducted in his absence. As can be imagined, the jury convicted him and he was sentenced to 60 years in prison.

The Eighth Court of Appeals in El Paso reversed and remanded the case on the grounds that Mr. Morris' 6th Amendment right to be present at trial was violated by the judge's continual use of the shock collar.

Now, I think we can all agree that Judge Gallagher's handling of this matter was inappropriate and wrong. We might even agree that it was a violation of the 8th Amendment's ban on cruel and unusual punishment. It certainly resulted in a violation of Mr. Morris' rights under the 6th Amendment.

But that's not the end of the story. You see, there are more folks complicit in this matter than just the judge.

First we have Mr. Billy Ray who didn't object to the installation of the shock collar on his client. He didn't object - or say anything at all on the record - when the judge ordered his client to be zapped with 50,000 volts three times on the first day of trial. He also stood by and failed to object when the judge ordered the trial to proceed without Mr. Morris in the courtroom.

Mr. Ray's excuse was he was scared of his client. Well boo-fucking-hoo. This is the job you signed up for. We don't all get to defend the white collar criminal from the suburbs who drives the Lexus and sips expensive wine after dinner. We sometimes deal with some pretty nasty folks. But then, anyone who decides to do criminal defense work should be well aware of the nature of the clientele.

Mr. Ray's job at trial was to provide a vigorous defense for his client. That means making damn certain that the deck isn't stacked against him by the state or the court. Sure, the facts may be really bad, but the process needs to be fair. Mr. Ray's job was to make certain that Mr. Morris was afforded every right and courtesy possible during the trial. By standing by and allowing the judge to shock his client, Mr. Ray abdicated his role. By refusing to object to the judge's order to continue the trial without his client, Mr. Ray violated his ethical duties.

To be fair, Mr. Ray did file a motion to withdraw after his client filed suit against him. Judge Gallagher denied the request.

The prosecutor, Ms. Andrea Risinger, also deserves to be castigated in this matter. Under our ethics rules, the prosecutor has a duty to see that justice is done. That means the prosecutor has an affirmative duty to make certain that the process is fair to the defendant. Allowing trial to continue without the presence of the defendant makes a mockery of that duty.

Finally, the bailiff isn't escaping without criticism.  Yes, he is supposed to follow the orders of the presiding judge in the courtroom. However, surely the bailiff knew that what he was doing was wrong. He doesn't get to slide by claiming he was just following orders.

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