Maryland judge orders black defendant shocked

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.

On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.

The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.

In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.

“Stop,” Nalley said, according to the transcript.

“… principles of common right and common reason are …” King said.

“Mr. Sheriff … ” Nalley said

“… null and void,” King continued.

“…do it,” Nalley ordered. “Use it.”

“(DEFENDANT SCREAMS).”

On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.

“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “”They had no reason to harm me like that. I really didn’t expect for any of that to happen.”

“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvan. He hit the ground that quick. He kept screaming until the pain subsided.”

Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.

“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”

Restrictions on use of electric shock devices in court

There are constitutional restrictions regarding when authorities can attach electric shock devices to a defendant appearing in court, said David Rocah, senior staff attorney with the American Civil Liberties Union of Maryland.

Rocah said he could not comment specifically on Nalley’s decision without reading the entire court file and knowing all the circumstances leading up his order to the deputy.

Before authorities place an electrical shock device on a defendant in court, a judge must make a ruling, on the record, explaining why such a step is necessary, Rocah said. The same principle applies to the decisions to make defendants wear handcuffs or leg shackles in court.

“It’s clear that the use of such devices can impact the defendant’s right to a fair trial in different ways,” Rocah said. For example, jurors could form negative opinions of a defendant if they see him shackled or wearing an electric shock device, Rocah said.

Judges also have a high bar when it comes to ordering a court security officer to shock someone, Rocah said. Judges could appropriately order a defendant to be shocked if, for example, he is attacking someone or trying to escape, Rocah said.

“Its use is limited to extreme situations,” Rocah said. “It’s not proper to use it just because a judge is annoyed with a defendant,” Rocah said. “It’s not a torture device to make defendants more compliant. It’s not a device for summary punishment.”

Non-lawyers who represent themselves in court are known as pro se defendants. Such defendants can be difficult for judges to deal with, but they can take many steps short of shocking a difficult defendant, Rocah said.

Those steps wold include denying a defendant’s objections, issuing verbal warnings, and holding the defendant in contempt of court, Rocah said.

National debate on accountability for use of force

The Charles County incident is emerging as a national debate is occurring regarding the use of force by law enforcement officers and race.

In Ferguson, Missouri, the Aug. 9 killing by a white Ferguson police officer of a black, unarmed teenager, Michael Brown, has prompted more than a week of demonstrations by residents. Some of the demonstrations were punctuated by violent clashes between residents and police. Many of the residents are seeking accountability for the use of force.

On Aug. 15, nearly a week after the fatal shooting, Ferguson police identified the officer who killed Brown. The officer, Darren Wilson, is white.

King is black. Nalley and the officer who administered the electroshock are white.

The case went forward after King was electroshocked

The electroshocking of King did not interrupt the trial for long. Nalley proceeded with jury selection.

A medical worker examined him at the courthouse, King said. King said he believed he was not in optimal condition to continue defending himself that day. “I thought they’d give me time to recuperate,” he said. He was defending himself against three firearms offenses.

King returned to the courtroom, and he and a prosecutor selected a jury.

The trial then shifted back to Circuit Court Judge Amy J. Bragunier, the chief administrative judge in Charles County Circuit Court. The following day, the jury convicted King of each of the three weapons charges. Bragunier ordered King jailed pending sentencing, which she scheduled for Sept. 24.

The Baltimore Post-Examiner interviewed King at the Charles County Detention Center.

Nalley declines to comment

Through a court administrative worker, the Baltimore Post-Examiner provided Nalley and  Bragunier, the administrative judge for the Charles County courthouse, a series of detailed questions. Nalley and Bragunier did not respond. Among the questions for Nalley: Why did he order the court officer to shock King? Why did he think he had the authority to issue such an order? Has he issued such orders before, and if so, how often?

Baltimore Post-Examiner wanted to ask Bragunier why she sent King to Nalley for jury selection. Jury selection began with Bragunier, who apparently became irritated with King, the defendant’s parents said. Bragunier called a recess and said she was sending King to Nalley, Alexander King said.

It is highly unusual for a judge to interrupt jury selection and send a defendant to another judge.

Angelita Plemmer Williams, a spokeswoman for the Maryland judiciary, sent an e-mail responding to the questions. Williams cited a rule in the Maryland Code of Judicial Conduct, which she said prohibits judges “from making statements on pending or impending cases, which includes the judicial deliberative process. However, our system of justice does provide avenues for appeal to ensure access to justice for every individual.”

In response to questions about what role Maryland judges play in making decisions about security, Williams replied that the Maryland judiciary does not have security protocols.

Security in Maryland courtrooms is typically handled by  the Sheriff’s Department in the county where each courthouse is located. Sheriff’s deputies are entrusted with decisions about security, including when to use force, Williams said.

Role of Sheriff’s Department unclear 

While it is clear a Charles County Sheriff’s Department officer administered an electrical shock to King on Nalley’s order, many questions about the department’s role in the incident remain unanswered.

On July 29, the Baltimore Post-Examiner emailed a list of questions about the incident to Diane Richardson, spokeswoman for the Sheriff’s Department. Richardson said the department was investigating the incident and would respond when it knew more about the event.

Sheriff’s officials would seek to interview witnesses to the incident as part of their investigation, Richardson said. As of Aug. 18, no Sheriff’s Department officials had contacted them, Alexander and Doris King said.

The incident was videotaped by a courtroom video camera. On July 31, the Baltimore Post-Examiner emailed  Richardson a Maryland Freedom of Information Act (FOIA) request asking for a copy of the video or the opportunity to watch it.

As of Aug. 18, the Sheriff’s department had not responded to the questions or the FOIA request. Under Maryland law, the department has 30 days to respond to FOIA requests.

Among the questions that remain unanswered:

Was the officer a Sheriff’s deputy, or a county jail Corrections officer? In Charles County, Sheriff’s deputies and Corrections officers both work for the Sheriff’s Department, and wear similar uniforms, with brown shirts and dark tan pants.

There are other questions: Why did the Sheriff’s officer follow Nalley’s order to administer an electrical shock to a peaceful defendant? What is the service record of the officer? What is his duty status? How much voltage did the Sheriff’s officer administer to King? Why did authorities place the electrical shock device on King’s leg?  What kind of a device is it?

Judge Bragunier’s role

It is unclear why Nalley presided over the jury selection phase of King’s case.

Jury selection began with Bragunier, Alexander and Doris King said in separate interviews.

Judges typically give more latitude to defendants who represent themselves, but Bragunier appeared to lose patience with King when he tried to make legal points, Alexander and Doris King said. “She seemed irritated,” Doris King said.

Bragunier announced a recess and said she was transferring King’s jury selection to Nalley, Alexander King said.

Judges typically give more latitude to pro se defendants than they would to attorneys, to be fair to them without giving them an advantage, said a Maryland judge. The judge asked not to be identified because the jurist did not want to be associated with a public controversy involving a fellow judge.

“You don’t abuse pro se defendants because they don’t have someone to represent them,” the judge said.

King convicted of gun charge

King’s effort to defend himself did not succeed. The jury convicted King of three firearms offenses in connection with a November 2013 traffic stop by a Maryland State Police trooper in Waldorf.

The trooper stopped a Lexus in which King was a passenger, according to charging documents sworn out by the trooper. At the direction of the trooper, King got out of the car. He also took off his coat and left it on the passenger seat. The trooper found a loaded .380-caliber handgun in the coat, according to the charging documents.

He has previously been charged with several traffic offenses.

Nalley’s car tampering caper  

Nalley is no stranger to controversy.

On Aug. 10, 2009, he deflated the tire of a 2004 Toyota Corolla that was parked in a restricted area near the La Plata courthouse. The deflation was witnessed by two Charles County Sheriff’s deputies, one of whom recorded Nalley’s act on a cellphone camera.

At the time, Nalley was the chief administrative judge for Circuit Court in Charles County. Nalley, whose annual salary was $140,352 at the time, resigned from that post three days after he deflated the tire, after news reports detailed his act.

The car belonged to Jean Washington, a member of the night courthouse cleaning crew. Washington said she did park in the restricted zone because she did not want to walk alone at night to a parking lot.

In October 2009, Nalley pleaded guilty to tampering with a motor vehicle. District Court Judge Robert C. Wilcox sentenced Nalley to probation before judgment, which meant he would have no criminal conviction on his record if he successfully completed his probation. Wilcox fined Nalley $500 and ordered him to write a “heartfelt” letter of apology to Washington.

In April 2010, Nalley testified during an administrative hearing held by the Maryland Comission on Judicial Disabilities.

Deflating the tire was “calculated” but benign, Nalley said. “It was calculated in the sense I didn’t want to make a big deal of it,” he testified. “I didn’t want (the car) to be ticketed.”

The car was parked in a spot he usually used, Nalley said.

In July, 2010, the Maryland Court of Appeals, the state’s highest court, issued Nalley’s punishment for the incident – a five-day suspension, without pay.

Nalley, who is 70, retired from the bench on Sept. 17, 2013. Some judges retire and continue to work, without a full caseload. Nalley was recalled to work on cases on such a basis the day after he retired.

King said he knew Nalley had been convicted and sanctioned for deflating a tire at the courthouse.

The transcript of the exchange between King and Nalley is five pages long; it appears that Nalley ordered King shocked within two or three minutes of encountering him. Early in their exchange, King asked Nalley for his “Superior Court GA 15 Certified Delegation of Authority Order.”

King said he was trying to determine whether Nalley, in light of his tire deflating conviction, was allowed to serve as a judge. “I didn’t think he was in good standing to oversee my case,” King said.

Is there a criminal probe of the shock incident?

It is unclear whether any authorities are conducting a criminal investigation into the shocking of King.

Judges are generally exempt from criminal charges regarding their conduct in court, except for cases of corruption, Rocah said. Judges can be prosecuted for using their positions on the bench for financial gain. In recent years, judges from Pennsylvania and Texas have been convicted and imprisoned on corruption charges.

Law enforcement officers have qualified immunity for using force, but that immunity is not all-encompassing. For instance, in 2001, a federal jury in Greebelt, Md., convicted Stephanie C. Mohr, a former Prince George’s County police officer, of a federal civil rights violation for releasing her police canine on an unarmed, unresisting homeless man. The judge sentenced Mohr to10 years in prison.

Charles County State’s Attorney Anthony B. Covington did not respond to phone messages and a request for an interview sent via Twitter.

Implications for King’s case

Alexander King said he planned on consulting an attorney to determine whether his son has any legal recourse. (In court records for the gun case, authorities spell the defendant’s first name as Delvan. Alexander King said he is Delvon.).

Making a pro se defendant continue with jury selection and his trial the same day a court officer shocked him at the direction of a judge could affect the defendant’s right to a fair trial, said Rocah, of the ACLU.

King said he was surprised when Nalley went forward with jury selection shortly after the judge had ordered the deputy to shock him. “I thought they’d give me time to recuperate,” he said.

Even if the defendant had recovered physically, he might be affected psychologically, Rocah said. For instance, such a defendant might feel intimidated by the judge, the civil rights lawyer said.