Moussaoui's Ejection Highlights Judges' Authority

By Jerry Markon
Washington Post Staff Writer
Wednesday, February 8, 2006

A Kentucky man yelled at the judge during his death penalty trial two years ago for not allowing smokeless tobacco in court. In response, eight federal agents wrestled him to the floor, and the judge threatened to have him zapped with a shock-producing stun belt.

A convicted killer was so unruly in a Florida courtroom last year that the judge sealed his mouth with duct tape. Perhaps most famously of all, a member of the Black Panthers was bound and gagged during the stormy "Chicago 7" trial in the Vietnam War era.

Judges have long exercised virtually unlimited control over their courtrooms, and U.S. District Judge Leonie M. Brinkema's ejection of Sept. 11 conspirator Zacarias Moussaoui from his death penalty trial followed that tradition. The judge booted Moussaoui during the first minute of jury selection Monday-- and three more times after that.

Brinkema appears to be on firm legal ground. To maintain order in courtrooms, the U.S. Supreme Court has allowed judges to expel or to bind and gag disruptive defendants, according to legal experts. What is less clear, they said, is how Moussaoui's antics will affect the fight for his life over his role in the worst terrorist attack in American history.

In the end, lawyers agreed, Moussaoui -- who disavowed his attorneys, declared himself a member of al Qaeda and called his trial a circus before being escorted out repeatedly -- is only hurting his case.

"I don't think there is a wilder card than this,'' said Jonathan Shapiro, an Alexandria lawyer who has been punched and knocked out by a client in court. Shapiro later represented convicted sniper John Allen Muhammad, who shook up his trial by firing his attorneys and giving his own opening statement.

"It's a bad feeling when you lose control in the courtroom,'' Shapiro said. "Everyone will be on pins and needles to see how this all plays out.''

Moussaoui, 37, a French citizen, is the only person convicted or charged in the United States in connection with the attacks on the World Trade Center and the Pentagon, which is just a few miles from Brinkema's courtroom. He pleaded guilty in April to conspiracy charges. A federal jury is now being chosen to decide whether Moussaoui should be executed or remain in prison -- where he has spent the past 4 1/2 years -- for life.

Legal experts said Brinkema is acting within Supreme Court guidelines but must balance Moussaoui's constitutional right to be present at his trial with her obligation to keep order. "She has to be very hesitant to exclude him,'' said Richard D. Friedman, a University of Michigan law professor. "On the other hand, she has a responsibility for maintaining decorum.''

The Supreme Court came down firmly on the side of an Illinois judge who ejected a disruptive defendant from his trial. Like Moussaoui, the man rejected his attorneys and wanted to represent himself. The court did not spell out any length of time or number of outbursts required for ejection but made one thing clear: Defendants must first be warned repeatedly to behave.

"The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated,'' the court wrote in the 1970 case. "We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.''

Even the proverbial rope and gag is permissible, the court said, although that should be a "last resort.'' The decision came out soon after Bobby Seale, a member of the Black Panther Party, was bound and gagged after repeated shouting matches in court. The case stemmed from the protests during the 1968 Democratic National Convention in Chicago.

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