A Texas court of appeals has ordered a new trial for a convicted sex offender after a Fort Worth judge instructed his bailiff to administer an electric shock to the defendant three separate times with a stun belt for failing to follow courtroom decorum.
Moreover, in a case of first impression the appellate court ruled that stun belts, which deliver a 50,000 volt punch, may not be used by Texas judges to enforce proper courtroom behavior or when a defendant refuses to answer questions.
The defendant, Terry Lee Morris, was tried and convicted of soliciting the sexual performance of a child and was sentenced to 60 years in prison. Morris appealed his conviction alleging that 396th State District Judge George Gallagher violated his constitutional rights by repeatedly shocking him for failing to answer questions regarding compliance with decorum absent any valid security concerns.
During the first day of his trial, after Gallagher asked Morris for his plea, Morris refused to answer and told the judge he had a pending lawsuit against his defense attorney and against Gallagher.
Outside the presence of the jury, Gallagher warned Morris about any further outbursts. When Morris continued to speak, Gallagher ordered his bailiff to intervene by activating the stun belt attached to Morris’ body.
“Are you going to follow the rules?” Gallagher asked Morris, according to the opinion.
“I have a lawsuit pending against you,” Morris replied.
“Hit him,” Gallagher said.
After shocking Morris the first time, Gallagher asked Morris if he would adhere to courtroom decorum.
“Are you going to behave?” Gallagher asked.
“I have a history of mental illness,” Morris replied.
“Hit him again,” Gallagher said.
Morris later said Gallagher was “torturing” him, that he was a mental health patient, and that “you’re wrong for doing this.” He also told Gallagher he was firing his lawyer and that he had the right to represent himself.
After refusing to answer Gallagher’s questions, Morris was shocked a third time, the appeals court said. The opinion said 50,000 volts can have cognitive impairment effects on a defendant, but it did not mention what Morris’ condition was after being shocked.
Gallagher later read into the record that he was concerned by Morris’ agitation and movements and that Morris’ demeanor escalated as he refused to ask questions. Gallagher also said he was concerned that Morris had been close enough to pull a 200-pound courtroom video monitor off the wall, potentially falling on the counsel tables and injuring two prosecutors and a defense attorney.
“It was based on the totality of his continuing escalation and his movements that the court ordered the shock belt be initiated,” Gallagher said at time. “It was done for the safety of the lawyers and all of the participants.”
However, El Paso’s Eighth Court of Appeals determined that Gallagher had shocked Morris for nonsecurity related reasons. In so ruling, the court also said judges may not use stun belts to enforce standards of decorum or gain compliance from a defendant. The panel said such devices are to be used only for security reasons.
“Never before have we seen behavior like this, nor do we hope to ever see such behavior again,” wrote Justice Yvonne Rodriguez of Gallagher’s decision to shock Morris. “As the circumstances of this case perfectly illustrate, the potential for abuse in the absence of an explicit prohibition on non-security use of stun belts exists and must be deterred.”
“We must speak out against it, lest we allow practices like these to affront the very dignity of the proceedings we seek to protect and lead our courts to drift from justice into barbarism,” Rodriguez wrote. “We further hold that the use of stun belts for other purposes, such as a method to enforce decorum or as a punishment for a defendant’s obstreperous conduct, is constitutionally prohibited.”
Gallagher declined to comment on the decision because the case is being sent back to his court for a new trial.
Lisa Mullen, a Forth Worth defense attorney who represents Morris on appeal, is pleased with the decision.
“I thought it was a beautifully written opinion. I was so impressed and proud of our appellate system of standing up for what’s right,” Mullen said. “I was also very proud that justice was found in that opinion.’’
“Let me also say this. I’ve known Judge Gallagher for decades and he’s always been fair in all of my dealing with him,” Mullen said. “I think this was just an aberration and a horrific one.’’
Sam Jordan, a spokeswoman for the Tarrant County District Attorney’s Office, declined to comment on the decision.
Bill Ray, a Fort Worth defense attorney who represented Morris at trial, said he did not object to Gallagher shocking his client at the time because Morris was allegedly behaving like a “loaded cannon ready to go off.”
“That guy is out of control I was standing right next to him and I was scared of him. And I’ve stood next to some pretty nasty people,’’ Ray said.
Ray also alleged that the shock belt did not function properly when Gallagher used it on Morris.
“And oddly enough, the shock collar didn’t work,” Ray said. “That was the second trial I had where they didn’t hook the shock collar up properly. I know it says he was getting electrocuted, but they didn’t shock him.”