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.
Sometimes the threat of extreme measures is enough. During the 2003 federal trial of Murder Inc. gang members in the District, Judge Royce C. Lamberth spotted one defendant mouthing words to an ex-girlfriend as she testified reluctantly. "You sit down and shut up," the judge growled after excusing the jury. "If you want to be bound and gagged for the rest of this trial, you just keep it up."
Judges don't hesitate to follow through when their patience is tested. In Florida, Judge S. James Foxman had convicted killer Richard England's mouth shut briefly with duct tape after a series of outbursts during his sentencing hearing in 2004.
"It was definitely unusual,'' recalled the prosecutor, Ed Davis. "Obviously, the judge has to control the courtroom.''
In South Carolina, defendant Branden Basham, a Kentucky native, implored U.S. District Judge Joe Anderson to let him take a dip of smokeless tobacco in a holding cell just off the courtroom during his 2004 kidnapping and carjacking trial. Anderson offered nicotine gum instead.
Since his indictment in December 2001, Moussaoui has erupted repeatedly in court, interrupting hearings to try to fire his attorneys (he succeeded, but the judge later brought them back) and to plead guilty. He withdrew the plea, in early 2002, a week later.
The court docket is filled with motions Moussaoui scrawled from jail in which he taunted prosecutors and the judge, hailed himself as a "slave of Allah" and derided his attorneys as the "bloodsucker death team.''
Brinkema has shown patience with Moussaoui in the past, indulging his often rambling courtroom monologues and allowing him to enter his plea last year despite questions about his mental competence.
But the judge has also cracked the whip. She has allowed federal marshals to fit Moussaoui with a stun device during court appearances, sources familiar with the case said. Lawyers who have seen one said the gadget is attached to the defendant's body, under the clothing.
A deputy equipped with a small remote control stands at the ready to administer jolts of electricity if violence is threatened. "It's enough to give you convulsions on the floor,'' said Shapiro, whose client Christopher Andaryl Wills, a kidnapping defendant, wore one during his 2001 trial at the federal courthouse where Moussaoui is on trial for his life.
John Hackman, chief deputy U.S. marshal in Alexandria, declined to comment on the stun device but said the marshals are "taking every precaution to ensure the safety of not only the defendant but also the people watching the trial, the judge, the defense lawyers and the prosecutors."
No zapping was required Monday; Moussaoui wasn't in court long enough. Brinkema threw him out after outbursts at the start of four sessions with prospective jurors. Among other things, Moussaoui declared his allegiance to al Qaeda, called his attorneys "my enemies" and announced his intention to testify at the trial.
As he left the first time, Moussaoui noted that he didn't "want to give you any excuse to pretend that I make any aggressive move." His remark might be interpreted, court observers said, as: Please, don't zap me.
In the South Carolina case, when his request for tobacco was refused, Basham yelled at the judge and stood up. The marshals pounced. "It was not a pretty scene,'' said Basham's attorney, Gregory P. Harris.
The incident took on legal significance as well. Prosecutors played for the jury, which had been out of the courtroom, a video of Basham fighting with deputies on the floor. Jurors sentenced him to death.
"If Moussaoui acts out in front of the jury, that's to his own detriment," Harris said.
Staff researcher Julie Tate contributed to this report.