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Judge Dinged for Using Force on Counsel Who Objected to an Objection

By Casey C. Sullivan, Esq. on August 31, 2016 | Last updated on March 21, 2019

A federal judge in Puerto Rico overreacted when he had court officers forcibly seat an attorney who had objected to an objection, the First Circuit said yesterday. But that overreaction wasn't enough to overturn the drug conviction of Marquez-Perez, the court found.

Rather, it was the performance from that same, forcibly-seated lawyer that may save Marquez-Perez. Since the attorney had failed to review important evidence before trial, Marquez-Perez may have been denied effective counsel, the First Circuit ruled.

"Sit Down and Shut Up"

Let's start with the good stuff. Marquez-Perez was convicted of possessing drugs with intent to distribute and possessing a firearm in furtherance of a drug trafficking crime. At trial, his attorney and U.S District Judge Francisco A. Besosa repeatedly clashed. The judge referred to the attorney's questions as "misleading," for example, and said he hadn't done his "homework." But none of that reached the level of judicial misconduct or abuse of discretion, the First Circuit ruled, describing Besosa's behavior as almost "flawless."

Except for one flaw. As Marquez-Perez's counsel cross-examined a police officer, the prosecution objected. Marquez-Perez's attorney objected to the objection. The following exchange ensued:

THE COURT: Wait a minute. You are objecting to an objection?
MR. BURGOS: Yes, sir.
THE COURT: No, you are not. [Government, c]ontinue with your objection. MR. WALSH: Our understanding is, in his testimony he mentions -- he said he did not --
MR. BURGOS: Objection.
THE COURT: Sit down and shut up. Sit down and shut up while he makes his objection. Mr. Burgos, sit down.
MR. BURGOS: Your Honor --
THE COURT: Sit down.
MR. BURGOS: We prefer --
THE COURT: Sit down.
MR. BURGOS: We prefer to go to the record.
THE COURT: Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.
MR. BURGOS: We would like the jury to be --
THE COURT: Sit down, Mr. Burgos. Have a seat, Mr. Burgos. Have a seat, Mr. Burgos.
MR. BURGOS: Let the record show --
THE COURT: Have a seat, Mr. Burgos.
MR. BURGOS: -- the marshals are forcing me to my seat.

No Prejudice, but Possible Ineffective Assistance

The use of force to quiet objecting counsel crossed a line, the First ruled. While a judge has broad discretion to deal with "contumacious" counsel, physical force is only justified when there is an imminent physical threat or "as a last resort," the First explained. That certainly wasn't the case here.

Nonetheless, Judge Besosa's overreaction was not enough to prejudice Marquez-Perez, the First found. But all was not lost.

In addition to his complaints over the judge's behavior, Marquez-Perez argued that he was denied effective assistance of counsel because his attorney had not seen important video evidence before the trial. Indeed, the attorney had sought a last-minute extension to review the evidence, but had been denied -- a denial the First ruled was acceptable. Without having reviewed that evidence, it is possible that the attorney could not have effectively assisted Marquez-Perez during plea bargaining, the First found. Possible, but not certain. The First remanded the case for an evidentiary hearing, in order to further develop the record.

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