A Tarrant County judge making international news for using a 50,000-volt stun belt on a defendant in his courtroom may be guilty of a crime, legal experts say.
In a 2016 trial of a man accused of soliciting sex from a 15-year-old girl, District Judge George Gallagher “ordered his bailiff to electrocute the defendant three times with a stun belt—not for legitimate security purposes, but solely as a show of the court’s power as the defendant asked the court to stop ‘torturing’ him,” according to an opinion published last week by the Eighth District Court of Appeals in El Paso.
Defendant Terry Lee Morris’ conviction was overturned because of Gallagher’s misconduct, which the appeals court said raised the specter of “barbarism.”
Gallagher ordered Morris electrocuted when the defendant launched into a rambling complaint instead of entering a plea as the judge had requested. According to a lawsuit filed by Morris, paramedics had to be called to treat burns to his ankle.
The appeals court ruled that stun belts could only be used for security, not to enforce good manners.
“Never before have we seen any behavior like this, nor do we hope to ever see such behavior again,” Justice Yvonne T. Rodriguez wrote.
Calling Gallagher’s conduct “extreme and outrageous,” the court described the pain caused by the shock by quoting a police sergeant who’d worn a stun belt in a training exercise. It was as if “you had nine-inch nails and you tried to rip my sides out and then you put a heat lamp on me.”
Inflicting that sort of pain on a defendant could result in the judge facing criminal charges for official oppression or assault under state law, not to mention potential federal charges for violating the man’s civil rights, lawyers said.
Mark Bennett, a Houston defense attorney, said he had filed a complaint against Gallagher with the State Commission on Judicial Conduct. He thinks Gallagher violated all of the above.
Bennett said that he’d been in touch with an official in a position to prosecute, “and they appear to be taking this matter seriously. I don’t think I should say more.”
Tarrant County District Attorney Sharen Wilson would have first crack at a criminal case. A spokeswoman for Wilson declined to comment. However, Wilson filed a brief in the appeal taking Gallagher’s side, arguing that Morris hadn’t properly objected to continuing with the trial after the electrocution.
In a darkly comic footnote, Wilson acknowledged that Morris had cried out, “You’re torturing (me)…. You have no right to do this,” but insisted that “the trial court wasn’t required to recognize Appellant’s pro se statement as an objection at all.”
The Attorney General’s office could, in theory, prosecute the case, if the local prosecutors request assistance.
“We do not have any open litigation in this case at this time,” Kayleigh Lovvorn of the Attorney General’s office said. “Unfortunately, I cannot confirm or deny any ongoing investigations.”
The Northern District of the U.S. Attorney’s Office would have jurisdiction in a federal civil rights case. That office did not respond to a request for comment.
Official oppression is defined in Texas law as “A public servant acting under color of his office or employment… (who) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful.” It is usually a misdemeanor.
“Official oppression charges do get filed with some regularity,” said Houston attorney Jeff Vaden, a former prosecutor for the U.S. Attorney’s Office and Harris County. “Typically, they’re filed against police officers or law enforcement officers in some type of assault situation, roughing up a suspect. I certainly have never heard of an official oppression charge against a judge.”
“This definition, though – ‘intentionally subjects another to mistreatment’ – you could probably make an argument that being shocked could maybe reach that level,” Vaden said.
This sort of misconduct is so rare, Vaden said, that there’s unlikely to be any case law directly answering the question of whether it’s a crime for a judge to electrocute a defendant without a constitutionally valid reason.
Indeed, according to the court, there’s only one other case of a Texas defendant being shocked over decorum reasons, and that case is currently under review by the Court of Criminal Appeals.
“I’m sure the judge would make the argument that he’s entitled to some type of qualified immunity,” Vaden said.
The doctrine of judicial immunity protects judges from most lawsuits over their decisions in the courtroom.
However, in 2016, a Maryland judge was sentenced to a year’s probation for violating the civil rights of a defendant he shocked with a “Stun-Cuff” attached to his ankle.
There was also a case in West Virginia in 1997 of a judge who bit a defendant on the nose. He pleaded no contest to criminal battery and served five days in jail, but was later acquitted in a federal civil rights case.
Vaden said that if he were considering whether to bring a civil rights case, “I’d want to know if the individual was injured in any type of long-lasting or permanent way, beyond the pain at the time,” also noting that the violation of Morris’ right to a fair trial has already been solved by the appeals court.
Larry Finder, a former U.S. Attorney for the Southern District of Texas, said that it would depend in part on what lawful authorization exists for using stun belts, but “I suspect that shocking the defendant could be beyond the bounds of what is constitutional.”
He cited a 1970 Supreme Court case that set out “three constitutionally permissible ways for a trial judge to handle an obstreperous defendant… (1) bind and gag him… (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.”
“I would think there is a possibility that when a judge directs court personnel to shock a recalcitrant defendant, that the judge could be investigated for official oppression and/or assault,” Finder said.
Gallagher gave some indication during the trial that he realized he’d gotten out of bounds.
Immediately after having the defendant shocked three times for his non-responsive answers, Gallagher gave a statement for the record, claiming that Morris had actually been a security threat.
“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 of the courtroom… 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.”
Aside from this case, Gallagher is known for his role in presiding for two and a half years in a securities fraud case against Paxton.
Jon Cassidy can be reached at [email protected]