A bailiff’s account of why he administered three 50,000-volt shocks to a defendant in a Fort Worth courtroom is contradicted by the trial record, including Judge George Gallagher’s own explanation of why he ordered the bailiff to do so.
Those shocks have led to an accused child molester’s guilty verdict being overturned, and also produced calls for Gallagher to face criminal responsibility for his actions.
The bailiff’s account was published in part Saturday by the Fort Worth Star-Telegram, which presented the after-the-fact explanation by Tarrant County Sheriff’s deputy Cary King as though it might correct the official record of what actually happened in court.
The bailiff’s version, in short, is that defendant Terry Lee Morris made a move. As the newspaper presented it:
Gallagher ordered Morris to stop moving and stop talking and warned Morris that another outburst would not be tolerated, the report said.
“Mr. Morris failed to listen to the orders given to him and took several more steps toward the bench in an aggressive manner,” the report said.
Actually, Gallagher did not warn Morris to stop moving, and neither did Morris make any threatening movements, according to both the transcript of trial court proceedings, and an appellate court’s reading of that record.
The record shows that the shocks were in response to verbal outbursts by Morris, but it also shows Gallagher realized his mistake that same day, and attempted to justify his actions by citing a security risk, much as the bailiff did. The appeals court scrutinized Gallagher’s supposed security concerns and found them to be a “pretextual explanation.”
Gallagher had Morris shocked, the court concluded, “solely as a show of the court’s power.”
In response, the Star-Telegram ran a front-page article Saturday questioning whether the bailiff’s “incident report was part of the materials reviewed by the appeals court.” That report, according to the headline in the online version of the article, showed that the “judge act(ed) appropriately in having defendant shocked.”
However, the transcript of what happened in Gallagher’s court that day in 2016 shows why the report is clearly false. The appeals court reviewed that transcript in detail:
The judicial misconduct of which Morris complains took place on the first day of the guilt-innocence phase of trial. After the prosecutor read the indictment, trial judge George Gallagher asked Morris for his plea, which led to the following exchange in open court:
THE COURT: To this charge you may plead guilty or not guilty. What is your plea?
THE DEFENDANT: Sir, before I say that, I have the right to make a defense.
THE COURT: The —
THE DEFENDANT: It was brought to my attention by the United States district court to do this. And before the Court — for the information of the Court, yesterday you gave this man orders to put a shock rag or a shock collar on my ankle to prevent me from saying anything in my defense. If it happens, it happens.
But let me just say for the record —
THE COURT: No, wait just a minute.
THE DEFENDANT: — lawsuit pending against this judge.
THE COURT: Jury, go to the jury room.
THE DEFENDANT: I have a lawsuit pending against this attorney. I’ve asked this judge to recuse himself off my case. It’s in relation to the Ken Paxton case, Attorney General Ken Paxton. I’ve asked this attorney to recuse himself off my case. They both refused to. I have that right.
(Jury leaves courtroom)
Outside the presence of the jury, Morris attempted to continue his objections. The trial court warned Morris about any further outbursts. When Morris continued to speak and mentioned his motion to recuse and federal lawsuit against the trial judge, the trial judge asked his bailiff to intervene by activating the stun belt attached to Morris’ leg:
THE DEFENDANT: The defendant has a right to object to procedures whereby a party asserts a piece of evidence or other matters –
THE COURT: Mr. Morris. Mr. Morris. I am —
THE DEFENDANT: That’s the law.
THE COURT: Mr. Morris, I am giving you one warning. You will not make any additional outbursts like that, because two things will happen. Number one, I will either remove you from the courtroom or I will use the shock belt on you.
THE DEFENDANT: All right, sir.
THE COURT: Now, are you going to follow the rules?
THE DEFENDANT: Sir, I’ve asked you to recuse yourself.
THE COURT: Are you going to follow the rules?
THE DEFENDANT: I have a lawsuit pending against you.
THE COURT: Hit him.
After shocking Morris the first time, the trial court again asked Morris if he would adhere to courtroom decorum:
THE COURT: Are you going to behave?
THE DEFENDANT: I’m an MHMR client.
THE COURT: Are you going to behave?
THE DEFENDANT: I have a history of mental illness.
THE COURT: Hit him again.
Following the second shock, the trial court repeated the same question to Morris several times over Morris’ protestations that he was under medication for mental health problems and that the trial court was “torturing” him. When Morris stated that he was firing his attorney, the trial court apparently took Morris’ remarks as an attempt to invoke his Faretta right to self-representation. The trial court began asking Morris a question ostensibly related to the Faretta invocation, but when Morris continued to speak about other matters, the trial court persisted in making use of the stun belt:
THE DEFENDANT: I have a history of mental illness. You’re wrong for doing this.
THE COURT: Are you going to behave?
THE DEFENDANT: You’re torturing an MHMR client. I have agoraphobia. I’m under medication.
THE COURT: Are you going —
THE DEFENDANT: I take 17 pills a day for my disability, my MHMR disability. You have no right to do this.
THE COURT: Are you going to behave?
THE DEFENDANT: I have the right —
THE COURT: You have no right to disrespect the Court.
THE DEFENDANT: I have the right. Nobody is —
THE COURT: I’m going to give you the option to do one of two things. You can either behave in the courtroom —
THE DEFENDANT: I don’t have an attorney. I’m firing this man. I’ve told him to get off my case. And the defendant has a right to refuse counsel. I have the right to represent myself in this case, and I shall.
THE COURT: All right. Let’s talk about that.
Counsel may be seated.
How far did you go in school?
THE DEFENDANT: Sir, that’s beside the point. There’s serious allegations that I have in the United States District Court against this man. No one wants to be represented by someone they have a lawsuit against. No one wants a judge to preside over their case who the lawsuit is against. No one wants to be tortured because they’re an MHMR defendant prevented from saying anything in the Court in front of the jury pertaining to any such cases such as the grand jury –
THE COURT: Mr. Morris, are you going to answer my question?
THE DEFENDANT: I’ve asked you, I’ve filed a motion asking —
THE COURT: Would you hit him again.
Nowhere in any of the three exchanges does anybody mention any menacing movements. But later that day, after Morris had left the court, been treated by medical technicians, and refused to come back, Gallagher made a statement for the record:
THE COURT: All right. For purposes of the record, before we go any further, the Court would like to place into the record, when Mr. Morris began his statements in the presence of the jury and before I was able to send the jury back out, the defendant had gone from merely standing next to counsel to beginning to move to his right just a little bit towards the edge of the table and his agitation continued to increase.
Once the jury was outside the presence — once the jury was outside of the courtroom and outside the presence of the jury, the record will adequately reflect that the defendant continually refused to talk — to answer the Court’s questions and his demeanor continued to escalate.
Let the record reflect that within about five feet from where the defendant was standing there is an 87-inch electronic Smart Board that weighs over 200 pounds that is readily within reach of the defendant, that had he grabbed that board, could have brought it over to the counsel table to affect the safety of the lawyers, Mr. Ray and the two prosecutors that would be sitting within anywhere from three to five feet if he went the other way.
It was based on the totality of his continuing escalation and his movements that the Court ordered that the shock belt be initiated. It was done for the safety of the lawyers and all of the participants.
So, Morris allegedly was “beginning to move to his right just a little bit towards the edge of the table,” according to Gallagher’s version, which the appeals court disregarded as phony. Even if Gallagher were telling the truth, there’s still a gap between “a move to his right just a little bit” and taking “several more steps toward the bench in an aggressive manner,” as the deputy later claimed.
The appeals court explained why it didn’t believe Gallagher:
Here, the record clearly shows the judge engaged in a pattern of calculated conduct aimed not at security or even maintaining decorum, but rather at demonstrating his power over the defendant. The judge repeatedly asked the defendant “[a]re you going to behave?” and if Morris was “going to answer my question?” He then ordered the sheriff’s deputy to “hit him” “again” and “again” when the defendant gave answers other than the word “yes.” Immediately after having Morris removed, the trial court also made specific oral findings that Morris refused to answer any questions and explained that its actions were undertaken in response to Morris’ obstreperous conduct.
Assuming that the trial court’s description of the courtroom was correct, and that Morris was within reaching distance of a large television-type screen, there is no evidence in the record that the trial court contemporaneously perceived Morris to be a threat for that reason. In fact, the only findings the trial court made after Morris was removed from the courtroom dealt with Morris’ disruptive verbal behavior. In light of those contemporaneous oral finding, the trial court’s later findings become even less convincing. Rather than providing cover for the trial court’s actions, the trial court’s belated “security” explanation—which took place after two witnesses had already testified and the defendant refused to return to courtroom—only bolsters our conclusion that the trial court’s actions were, in fact, punitive and aimed at rectifying perceived disrespect. Such use of the stun belt is impermissible. The trial court, realizing its error too late, attempted to salvage the proceedings by offering a pretextual explanation of its previous actions. That pretextual explanation finds no footing in the record before us.
In trumpeting its discovery of the bailiff’s report, the Star-Telegram presented itself as correcting a record that other news outlets had distorted.
“A week after the opinion was rendered, Gallagher was labeled by critics as a barbarian, a torturer and an electrocutioner,” the newspaper reported, linking to stories in the Washington Post and The Texas Monitor.
The Post’s use of “barbarism” was a direct quotation from the appellate opinion. The Texas Monitor likewise employed the term “electrocute,” just as the appeals court did.
Electrocutioner is not a standard word in English, although there is a comic book villain from the Batman universe by that name.
Jon Cassidy can be reached at [email protected]