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Date: 01-24-2020

Case Style:

STATE OF LOUISIANA Vs. MICHAEL CALVIN DUHON

Case Number: 19-609

Judge: John E. Conery

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: Honorable Keith A. Stutes
District Attorney

Defendant's Attorney:

Description:


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Michael Gregory is a licensed attorney practicing criminal law in Lafayette
Parish and the Fifteenth Judicial District Court. Though he was not counsel of record
for the defendant Michael Duhon at Mr. Duhon’s sentencing hearing, he was present
during the hearing and had consulted with Mr. Duhon’s attorney during the handling
of the case. During the sentencing hearing of Mr. Duhon, Attorney Gregory used
his cell phone to videotape deputies forcibly “gagging” Mr. Duhon using duct tape

1 Canon 3(A.)(9) of the Code of Judicial Conduct states: “Except as herein provided a judge shall prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions.”

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on order of the trial judge, an action taken after multiple warnings by the trial judge
for Mr. Duhon to remain quiet and let his attorney handle the hearing.2
In this case, after an assistant district attorney noticed Attorney Gregory hold
his cell phone up to video tape the “gagging” of the defendant Duhon, he asked to
approach the bench and informed the trial judge of Attorney Gregory’s actions.
Attorney Gregory was then called to the bench and admitted that he had in fact used
his cell phone to video tape the deputies forcibly “gagging” the defendant during
sentencing, and then forwarding the video to his law firm. When asked why he had
done so, he stated that he found the incident “highly egregious.”
The trial judge then found Attorney Gregory to be in direct contempt of court.
Though Attorney Gregory admitted his conduct, instead of sentencing Attorney
Gregory for contempt, the trial judge, noting that she did not personally witness the
incident, decided to forgo a finding of direct contempt and scheduled a hearing by
rule to show cause utilizing the procedure for an “indirect contempt”, specifically
citing Attorney Gregory for violating La.Dist.Ct.R. 6.1(e), only. At the hearing held
on July 26, 2019, the trial judge denied Attorney Gregory’s motion to continue and
his motion to recuse, and proceeded to conduct the hearing. Though Attorney
Gregory’s counsel assigns the denial of the continuance and recusal as error, we
decline to consider these issues and instead rule on the merits.
A review of Mr. Michael Duhon’s sentencing transcript shows that the trial
judge, after specifically warning Defendant Duhon on many occasions to remain
silent and let his attorney handle the hearing, finally ordered the bailiffs to “gag”
Defendant Duhon. The entire incident lasted only forty-one (41) seconds, according

2 A review of the transcript shows the trial judge was interrupted at least seventeen (17) times.
3
to the video tape of the “gagging” incident by Attorney Gregory filed as a sealed
exhibit. Before she ordered the defendant “gagged,” the trial judge indicated that
she had no reasonable alternative under the circumstances. Indeed, La.Code Crim.P.
art. 835 states in pertinent part: “In felony cases, a defendant shall always be
present when sentence is pronounced.” (Emphasis added.) See also State v.
Debarge, 14-798 (La.App. 3 Cir. 3/18/15), 159 So.3d 526; State v. Baronet, 13-986
(La.App. 3 Cir. 2/12/14), 153 So.3d 1112.
After the duct tape was removed, even though Mr. Duhon promised to “be
quiet” and let his attorney speak for him, the transcript shows that the trial judge was
interrupted at least fifteen (15) additional times before the sentencing was
completed.
The trial judge is charged directly by Canon 3(A.)(9) to prohibit recording or
videotaping during court proceedings, especially important during a criminal
sentencing hearing. The Fifteenth Judicial District Court did not publish a local
court rule specifically prohibiting attorneys from videotaping court proceedings
using their cell phones. It was admitted by Attorney Gregory at the contempt hearing
that he knew there was a sign posted that says, “no cellphones in the court house,”
but it was his understanding that by local custom, attorneys were allowed to have
their cell phones during court proceedings. The trial judge noted in her oral reasons
that while attorneys were allowed to have cell phones in the courtroom, as officers
of the court, attorneys were expected to use their phone responsibly for legitimate
purposes, certainly not for videotaping criminal court proceedings. Though there
was no specific rule, the trial judge believed all attorneys were familiar with the local
custom of responsible cell phone use. Nevertheless, we are constrained to agree with
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Attorney Gregory’s argument that the specific court rule he was accused of violating,
Rule 6.1(e), is directed only at the judge’s duties and not his as an attorney.
The trial judge mentioned that she could have cited Attorney Gregory for
direct contempt for general courtroom behavior that was disruptive to the business
of the court and an affront to the dignity of the court under Rule 6.1(a) and (b), but
because Attorney Gregory’s hearing was specifically limited to a violation of Rule
6.l(e), stating only that “a judge should prohibit . . . recording, or the taking of
photographs in the courtroom[,]” there is no direct rule affecting lawyer conduct
proven in the record before us. We further note that although pursuant to Rule 6.1(f)
“[a] judge may prohibit the use of electronic devices, including cellular telephones .
. . in a courtroom[,]” there is nothing in this record to show that such a rule was in
effect at the time of defendant’s admitted conduct. Nor was it proven that there was
a specific order by this trial judge, either on her web site or by oral order at defendant
Duhon’s sentencing hearing, that cell phone use by attorneys in the courtroom during
court proceedings was prohibited and may result in a contempt finding.

Outcome: We are unable to uphold a finding of contempt of court against Attorney
Gregory under the peculiar circumstances of this case. Accordingly, Attorney
Gregory’s conviction and sentence for contempt of court are vacated. Any fines paid
by Attorney Gregory for contempt are ordered returned to him by the Lafayette
Parish Sheriff. We decline to consider the remainder of Attorney Gregory’s claims.

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