Mental Disorder in the Court
By Greg Enos
Lawyers in Galveston County now know how it felt to serve in Roman Emperor Caligula’s court. We see and fear the madness that is cloaked in awesome power and never know when the mad ruler’s ire will be aimed at us.
This was the scene in Emperor Dupuy’s court on February 11 when Dupuy held a hearing to hold attorney Lori Laird in contempt for filing two motions to recuse him. There were eight armed bailiffs supervised by the elected Sheriff of Galveston County, who was being advised by a lawyer from the County Legal Department. The Sheriff even checked behind the judge’s bench for weapons before the hearing started. It seemed that the extraordinary security was there as much to protect the attorneys from the judge as to keep order in the court. A felony prosecutor and the D.A.’s head investigator sat in the gallery taking notes about the judge. About 40 people were in the audience, including the County Judge and for a while one of our district judges. One counsel table was empty and at the other table sat Laird with her four attorneys (Tad Nelson, Greg Hughes, Greg Russell and Cynthia Tracy).
Now, bear in mind briefly the law on recusal motions. If a motion to recuse is filed, the judge only has two options: recuse himself or refuse to recuse himself. If the challenged judge refuses to recuse himself, then he cannot hear any further matter in the case until an assigned judge hears the motion to recuse. See e.g.Jamilah v. Bass, 862 S.W.2d 201, 203 (Tex. App – Houston [14th Dist.] 1993)(orig. proc.). Any order signed by the challenged judge after a motion to recuse is filed is void. In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 169 (Tex. App. – Corpus Christi 1999, orig. proceeding).
In the Jamilah case, a lawyer did not appear for trial of a divorce case. The trial judge issued a “show cause” order against the attorney ordering her to appear and show cause why she should not be held in contempt of court. The attorney filed a motion to recuse the judge. The judge proceeded with his “show cause” hearing and found the attorney in contempt and fined her $750 and court costs. The Houston Fourteenth Court of Appeals granted mandamus and ruled that the trial judge had to either recuse himself or refer the recusal motion to the presiding judge and could not conduct the contempt hearing while the recusal motion was pending. The court of appeals stated, “On these facts, we hold the trial judge had but two options: to recuse himself or refer the case to the presiding judge.” Id. at 203.
Interestingly, Judge Dupuy knows all about recusal motions because he files them personally in the many lawsuits pending against him. For example, in the Mr. Margarita legal malpractice case (09CV1183), Dupuy filed a motion to recuse on December 19, 2011 which stated in part:
Regardless of whether a motion to recuse may be defective or untimely, the challenged judge must recuse or refer the motion so that another judge can determine the procedural adequacy and merits of the motion. See e.g., In re Norman, 191 S.W.3d 858, 861 (Tex. App. – Houston [14th Dist.] 2006, orig,. proceeding); Jamilah v. Bass, 862 201, 203 (Tex. App. – Houston [14th Dist.] 1993, orig. proceeding)(the trial judge must recuse himself or refer the motion to the presiding judge,”regardless of the timeliness of the motion”).
(emphasis in original). The fact that Dupuy himself cited the Jamilah v. Bass case is very significant, as explained below. Dupuy’s own motion to recuse in his own case went on to say:
To the extent Judge Shearn Smith declines to recuse himself, the rules of civil procedure prohibit Judge Shearn Smith from taking any further action in the case until a hearing has been held on the first amended recusal motion. Under Rule 18a, the trial judge has a mandatory duty to either recuse himself or refer this first amended recusal motion to the presiding judge – there is no option of determining the validity of any aspect related to the motion, and any action taken by a trial judge after this filing constitutes an abuse of discretion.
So, Dupuy knew full well that once Lori Laird filed a motion to recuse him, that he could take no further action in the case until the motion to recuse had been ruled on. Instead, Dupuy proceeded to try to hold Laird in contempt of court for filing the motion to recuse.
As if it matters, the law and procedures on holding a lawyer in contempt are fairly straight forward as well. Sec. 21.002(d) of the Texas Government Code says that a lawyer as an officer of the court who is held in contempt is entitled to a release on personal recognizance and,“on proper motion filed in the offended court” to a trial on guilt or innocence before another judge assigned by the administrative judge of the judicial region where the alleged contempt occurred. There is no recorded case in Texas history of a lawyer being held in contempt of court for filing a motion to recuse. Attorneys can be sanctioned for filing motion to recuse, but the assigned judge must hear the request for sanctions, not the trial judge who is the subject of the motion to recuse. TRCP 18a(h). Ironically, in 2011, Judge Dupuy and his attorney Kathleen Collins were sanctioned by an assigned judge for a motion to recuse filed in one of the legal malpractice cases pending against Dupuy. Dupuy and his attorney were ordered to pay a $7,500 sanction for filing a frivolous motion to recuse. Thus, Dupuy was also personally familiar with the rules for sanctioning a lawyer and party who waste a court’s time with a frivolous motion to recuse.
So, the basic rules of recusal and of contempt are:
- If a lawyer files a motion to recuse a judge, the challenged judge can either grant the motion or deny the motion and then an assigned judge is appointed to conduct the recusal hearing.
- Once a challenged judge denies a motion to recuse, the challenged judge cannot take any further action in the case until the recusal request is ruled on. Any order signed by the challenged judge is void.A lawyer can be punished by sanctions for filing a frivolous motion to recuse but only the assigned judge who hears the motion to recuse can determine the sanctions, if any.
- A judge challenged by a recusal motion cannot conduct a “show cause” hearing to determine if a lawyer should be held in contempt – this is the holding of the Jamilah v. Bass case which Dupuy himself cited in his own motion to recuse.
- A lawyer who is held in contempt of court is entitled to a guilt or innocence hearing before another assigned judge upon motion by the attorney. In such cases, the local DA or a prosecutor pro-tem presents the contempt case, which must be proven beyond a reasonable doubt. The contempt hearing is conducted like a criminal trial, with the State presenting evidence and the defense counsel cross-examining and calling its own witnesses. The May-June 2012 issue of The Prosecutor newsletter published by the Texas District & County Attorneys Association explains how a contempt hearing against an attorney is prosecuted. http://www.tdcaa.com/journal/handling-due-process-contempt-hearing.
Judge Dupuy violated each of these rules when he went after Lori Laird.
It is important to understand the context of Dupuy’s extraordinary legal assault on Ms. Laird. Laird is representing Dupuy’s ex-wife, AdrieneViterna in two pending cases against Judge Dupuy. Laird represents the former ex-Mrs. Dupuy in these cases:
09FD0420 – The child custody modification lawsuit and related petitions for enforcement involving Dupuy’s two young children. Lori Laird became co-counsel for Ms. Viterna on December 4, 2012, just before Dupuy started trying to hold Laird in contempt. Laird continued the effort to get Judge Dupuy deposed in this custody case and she filed several motions against Dupuy, including a motion for mental exam, all while the events described below were unfolding.
12CV3110- A petition to obtain depositions, including of Judge Dupuy, prior to filing a bill of review to try to set aside the divorce decree and arbitration order from 2010 awarding Dupuy primary custody of his children. Laird represents Ms. Viterna in this suit as well (which also seeks to depose me and accuses me of improper behavior in the course of serving as arbitrator in the Dupuy divorce before he was elected judge). This case was filed on December 18, 2012, just before Dupuy started trying to hold Laird in contempt. Interestingly, as if there were not enough recusals going on, Judge Ellisor recused himself from this case involving Dupuy.
Ms. Laird filed motions to recuse Dupuy in two different family law cases in which Laird is the attorney for a party: the Wishart divorce (11FD2384) and the Crowson case (07FD1265) and both recusal motions resulted in contempt actions by Judge Dupuy against Ms. Laird.
Dupuy first signed on December 28, 2012 an order purporting to hold Laird in contempt in the Wishart case for filing a motion to recuse Dupuy, within weeks of Laird taking actions on behalf of Dupuy’s ex-wife in the two cases in which Laird represents Dupuy’s ex-wife against the judge. In fact, Dupuy apparently signed the Wishart contempt order against Laird on the very day Dupuy had a strange encounter with Laird in her law office. Laird had noticed Dupuy’s deposition in one of the enforcement actions between Dupuy and his ex-wife and Dupuy on December 28 appeared at Laird’s office without his attorney. Dupuy insisted on giving a speech to the court reporter in Laird’s conference room why he could not be properly deposed and then he left Laird’s office clearly very upset and angry with Laird.
In the Crowson case, Laird filed a motion to recuse Dupuy on October 4, 2012 and then an amended motion to recuse on November 27, 2012. A motion to enforce to collect child support had been filed by Laird in the Crowson case on October 16, 2012, which had the effect of re-opening this closed case. The Crowson case was thus an open, pending case when Laird filed her amended motion to recuse Dupuy.
The Wishart case was a divorce suit that had been on file since September 2011. This is the amazing sequence of events in the Wishart divorce:
- October 4, 2012 – Laird filed a motion to recuse Dupuy.
- October 12, 2012 – Dupuy declined to recuse himself in a two page order.
- November 7, 2012 – Laird filed an amended motion to recuse.
- November 14, 2012 – Laird’s motion to recuse was scheduled for a hearing before Judge Underwood on the morning of November 14. Laird had served subpoenas on several witnesses, including Judge Dupuy’s court reporter. On the morning of the hearing, Dupuy had his court coordinator fax an order that states, “In the interest of justice, the court asks Judge Underwood to assign a visiting judge to hear this matter.” The order is signed in Dupuy’s name by his coordinator with a notation “by permission.” Laird argued to Judge Underwood that this order was not really signed by Dupuy and did not specifically say he was recusing himself. Judge Underwood told Laird that he had talked to Dupuy via cell phone and Dupuy told Judge Underwood that he was recusing himself, so Underwood refused to conduct the recusal hearing.
- Dupuy on December 28, 2012, signed a document entitled “Order and Notice of Charge of Criminal Contempt and Request for Judge to be Appointed to Determine Lori Laird’s Guilt or Innocence and to Determine Punishment.” This eight page (single spaced) order was not filed with the clerk until January 2, 2013 and it states in part:
The court herein provides Lori Laird, State Bar Number 24046260, notice of the charge of criminal contempt.
Per code, Ms. Laird is entitled to hearing before a different judge for “a determination of her guilt or innocence.” The presiding judge of the Second Administrative Region is therefore requested to appoint a judge to hear this matter, to determine Ms. Laird’s guilt or innocence, and to assess punishment, as appropriate.
[the order then quotes The Texas Lawyer’s Creed at length]
The court FINDS that it has jurisdiction of this proceeding [even though a motion to recuse had been filed and Dupuy had purported to recuse himself].
Lori Laird is herein given notice of the contempt violations, all of which either occurred outside the presence of the Court, or within pleadings filed to the Court in this matter.
The Court FINDS that Ms. Laird’s conduct tended to bring the authority and administration of the law into disrespect or disregard; interfered with or prejudiced the parties or their witnesses during this matter; or, otherwise tended to impeded, embarrass, or obstruct the court and its personnel in the discharge of their duties.
At issue is Ms. Laird’s out-of-court conduct and her highly unprofessional and unethical Amended motion to Recuse, which she filed on November 7, 2012.
[Dupuy then provides 36 “Findings” against Laird, that include many activities that would appear out of court speech criticizing or making fun of an elected official and protected by the First Amendment. The findings include:]
10. On October 20, 2012, Ms. Laird publically posts a YouTube animation with her caption, “Looks Like Lil’ Dupuy had an interesting night.”
11. On October 27, 2012, Ms. Laird publically posts on her Facebook a Twitter picture from a fake persona her caption, “Now that’s pretty funny…”
12. Beginning in October 2012, Ms. Laird creates the web page www.removedupuy.com to disseminate her comments about Judge Dupuy….
13. Ms. Laird operates and/or helps disseminate information that brings the authority and administration of the law into disrespect or disregard and otherwise tended to impede, embarrass, or obstruct the court and its personnel in the discharge of their duties through an alias twitter account, www.twitter.com/lildupuy.
36. Ms. Laird’s paragraph 32 [in her amended motion to recuse] intentionally misstates the record in this matter, as well as contains Ms. Laird’s unprofessional allegations. This paragraph also alleged no factual or legal basis for recusal.
The in-court, out-of-court (internet aliases, personas and photo-shopped images), and pleading conduct and unprofessionalism of Ms. Laird “are a disservice to our citizens, harmful to clients, and demeaning to our profession.”
Ms. Laird’s continued course of conduct, highlighted with a most unprofessional pleading, has tended to bring the authority and administration of the law into disrespect or disregard, interfered with or prejudiced the parties or their witnesses during this matter, or, otherwise tended to impede, embarrass, or obstruct the court and its personnel in the discharge of their duties. Criminal contempt in this matter is well founded and warranted.
Court further FINDS that Ms. Laird filed her Amended Motion to Recuse under the trade name :Law Office of Laird & Associates, PLLC.” The Court FINDS this then-used trade name to be inherently misleading under Displinary Rule 7.01 and to have violated counsel’s duty of candor to the Court.
ORDERS OF THE COURT
IT IS ORDERED, ADJUDGED AND DECREED by the Court that Lori Laird is in contempt of this Court.
It is recommended by the trial court that the hearing judge find Lori Laird confirm its finding of criminal contempt. [sic]
It is further recommended by the trial court that the hearing judge punish Lori Laird in the amount of $500 per violation found.
It is further recommended by the trial court that the hearing judge punish Lori Laird by confinement in the County Jail for a term not to exceed 180 days.
It is further recommended by the trial court that the hearing judge punish Lori Laird by ordering costs of the proceeding to be assessed against Lori Laird, for which let execution issue.
It is further recommended by the trial court that the hearing judge punish Lori Laird by ordering her to attend no less than 50 hours of continuing legal education, all of which to be in ethics.
It is further recommended by the trial court that the hearing judge punish Lori Laird by ordering her license suspeneded pending conclusion of the investigation(s) by the State Bar of Texas.
Signed on December 28, 2012.
Christopher M. Dupuy, Judge
It is highly ironic that Dupuy would accuse Laird of wasting court time when Dupuy clearly spent so much time drafting this lengthy order that was void on its face because either Dupuy had recused himself or because there was a pending motion to recuse. For Dupuy to accuse anyone other than himself of bringing, “the authority and administration of the law into disrespect or disregard” is insanely ironic, given that the law is clear that Dupuy had no authority to even sign this order.
Dupuy’s own order says Laird is entitled to a hearing before an assigned judge to determine her guilt or innocence. Why then would Dupuy within two weeks sign a “show cause order” and order Laird to appear in front of Dupuy to determine if she had committed contempt when he knew another judge had to hear that case?
- Jan. 2, 2013 – Dupuy signed an “Amended Order of Recusal” that states it is being signed at the request of Judge Underwood and it concludes, “The Presiding Judge of this administrative district is requested to assign another judge to sit in the underlying case.” That same day Dupuy signed a form entitled “Request for Assignment of Judge” which refers to the Wishart case and has the box for “Voluntary Recusal” checked under “Reason for Request” but there is no explanation filled out for the recusal.
- Apparently, Judge Underwood kept telling Dupuy that his orders did not explicitly grant the motion to recuse, because on the next day, January 3, Dupuy signed an “Second Amended Order of Recusal” in the Wishart case which stated in full:
Pursuant to the January 3, 2013 request of the Administrative Judge for the Second Judicial Region, the Court enters this Second Amended Order.”
The court finds that Ms. Laird’s Amended Motion for Recusal to be groundless and filed in bad faith, or for the purposes of harassment, or was clearly brought for unnecessary delay and without sufficient cause.
The court does not harbor any bias or prejudice against either party. This is highlighted by the fact that this Court reinstated Petitioner’s case after Ms. Laird neglected this case for months, including Ms. Laird failing to appear for multiple hearings.
The Court finds that Ms. Laird is now the subject of a request for fines and sanctions for her unprofessional conduct in at least one other family law matter [apparently the Crowson case where Dupuy was also trying to hold Laird in contempt for filing a motion to recuse], as well as has been provided Order and Notice of Charge of Criminal Contempt in this case.
Therefore, pursuant to Texas rule of Civil Procedure 18a(f)(1)(A), this court refers this case to the presiding Judge of the Second Administrative Judicial Region for assignment to another judge.
- January 13: Dupuy signed a “Show Cause Order” which orders Laird to “appear before this Court on Monday, February 11, 2013 at 3:00 p.m. to then and there show cause, if any, why she should not be held in criminal contempt as found by this court on December 28, 2012.”
Recall that on this date Dupuy was already subject to a motion to recuse so any order he signed was void. Pursuant to the Jamilah v. Bass case Dupuy himself had cited in his own motion to recuse in his Mr. Margaritaville legal malpractice case, Dupuy had no authority to conduct a show cause hearing if a motion to recuse was pending. Moreover, Dupuy had signed several orders purporting to recuse him from the Wishart divorce case, meaning Dupuy obviously should not be able to conduct any hearing in the case. On top of all that, Dupuy had already found Laird in criminal contempt and requested that another judge be assigned to determine her guilt or innocence as required by the Texas Government Code, a law Dupuy himself cited in his order holding Laird in contempt. Therefore, Dupuy clearly knew he had no authority to conduct a hearing to determine if Laird was guilty of contempt. To the extent Dupuy had already ruled Laird was in contempt, there was no reason to conduct a hearing to make that finding all over again. Finally, as if there were not enough problems with Dupuy’s conduct, the behavior of Laird that so troubled Dupuy could not legally or constitutionally be the basis for contempt. Texas Rule of Civil Procedure 18a(h) makes it clear that only the assigned judge who hears the motion to recuse can impose sanction for a frivolous motion to recuse.
- February 8: Laird is served by a deputy constable with orders to appear before Dupuy on February 11 to respond to two contempt actions in the Crowson and Wishart cases.
The Bizarro Hearing
Laird appeared in Dupuy’s court on February 11 to answer for her alleged crimes against Dupuy. There were about 40 people in the audience in addition to the eight bailiffs patrolling the courtroom. Judge Dupuy’s ex-wife, Adrienne Viterna, sat in the second row of the gallery right behind Lori Laird (who is representing the former Mrs. Dupuy in two pending cases against Dupuy). Lori Laird sat at the counsel table on the right side of the courtroom with her four attorneys.
Laird had once again served a subpoena on Dupuy’s official court reporter, Lisa Fort. Dupuy had initially told Ms. Fort that the county would provide her an attorney to protect her from the subpoena but County Judge Mark Henry made it clear that was not going to happen. So, arrangements were made for Ms. Fort to be represented by Kristen Black with the law offices of Marcia Zimmerman.
The first order of business at the Laird contempt hearing was a motion for protective order (from discovery) filed on behalf of the court reporter, Ms. Fort. In the middle of the legal argument between Cynthia Tracy for Lori Laird and Kristen Black for Ms. Fort, Judge Dupuy interrupted the proceeding and said:
The Court: Anybody chewing gum in the courtroom, there’s a trash can up here or one outside. All right. State your name for the record. In the purple, yes, you chewing gum.
Ms. Viterna: Adrienne Viterna [she is Dupuy’s ex-wife and Lori Laird’s current client]
The Court: All right, Ms. Viterna, there’s no gum chewing in the courtroom. So, dispose of it now.
Ms. Viterna: I swallowed it. [She says to her ex-husband and the father of her children]
The Court: Excuse her from the courtroom. Ms. Tracy, keep going. [at this point, bailiffs physically remove Dupuy’s ex-wife from the courtroom].
Mr. Nelson: Your honor, may I put on the record that she swallowed her gum. It is your ex-wife.
The Court: One at a time.
Mr. Nelson: And you ran her out of the courtroom. She’s here showing support for Ms. Laird.
The Court: Mr. Nelson, as the lead counsel, I guess, on this issue addressing the Court, you have a duty of candor on the record, so…
Mr. Nelson: I have to articulate for the record because they’re just going to be reading –
The Court: You need to articulate in a very candid, professional manner that doesn’t misstate the record.
Mr. Nelson: In all fairness I think it –
The Court: Please be seated.
Mr. Nelson: Can I finish my proffer?
The Court: I think your proffer which started to include misleading statements is not well taken.
Mr. Nelson: I will try to clean that up and not make any misleading statements, your Honor. May I try again, please?
The Court: No, we are going to move on. Ms. Tracy did you finish your –
Mr. Nelson: Are you not letting me proffer for the record?
The Court: No, Mr. Nelson. Sit down.
Mr. Nelson: I want to clarify.
The Court: Sit down; it’s been clarified.
Mr. Nelson: Could I have a ruling?
The Court: There’s no issue.
Mr. Nelson: Sit down is not a ruling, your Honor. Are you telling me I cannot complete my proffer?
The Court: I’m telling you that I’m going to entertain Ms. Tracy’s remaining argument, and now you’re being disruptive. So, sit down. Go ahead, Ms. Tracy.
Ms. Tracy: I’m going to take up his proffer. The individual was removed from the courtroom; that is, your ex-wife that as immediately instructed by the Court to take care of the gum, she so did and the Court still removed her from the courtroom.
The Court: She was causing disruptive behavior by laughing and snickering. So, Ms. Tracy, continue where you left off.
Judge Dupuy then granted the motion for protection and ruled that his court reporter did not have to testify and she was allowed to leave. Dupuy reserved the issue of attorney’s fees for a later date [even though every action he took that day was void because he had recused himself or at least there was a pending motion to recuse in the case].
Dupuy then first took up his contempt action against Laird in the Crowson case. Tad Nelson for Ms. Laird kept asking Dupuy to explain the procedure he was following or the legal basis for the hearing. Dupuy said several times that he was not there to educate Nelson. Dupuy refused Nelson’s request for an opening statement but then Dupuy proceeded to give an extraordinary opening statement. Dupuy launched into an clearly pre-written speech that cited cases from all over the country, such as North Carolina and Idaho, on proper behavior of attorneys. Nelson kept objecting that it was hearsay and asking what Dupuy was reading but Dupuy either ignored him or overruled him and kept on reading his speech about proper civil behavior by attorneys.
Dupuy seemed nervous as he read and he clearly was avoiding looking at the large audience. Those of us watching, including the bailiffs, were all looking at each other with puzzled looks as if to collectively say,”What the hell are we witnessing here?” We have all encountered deranged people on the street who obviously have mental issues. We can tell they are crazy by the way they talk and hold their bodies and avoid looking at you. That is what we were all seeing as Dupuy hunched over his typed papers on his bench reading his speech. The scene would not have been much different if a homeless drifter had been plucked off the seawall, put in a black robe and escorted to the bench to read us a nonsensical speech about proper legal behavior. We all looked at each other and at Dupuy and back at each other and everyone in that courtroom had the sinking feeling we were all staring mental illness in the face.
Dupuy finished his soliloquy and announced that he expected Laird to answer each of his 37 counts of contempt and explain herself, defend herself or apologize. There is no substitute for what was actually said, so here is the transcript of a few minutes of this hearing leading up to the point when Dupuy ejected Tad Nelson from the courtroom.
Mr. Nelson: I’ll get right to that. Can I ask you one question, your Honor?
The Court: No, sir.
Mr. Nelson: Is there any due process in this hearing?
The Court: This hearing is about due process.
Ms. Laird: Then we get to ask questions.
The Court: All right. Ms. Laird, would you like to, if I’m talking to you now, explain, defend, or apologize for the behavior this Court put in paragraph six of the show cause order? We’ll take it paragraph by paragraph.
Ms. Laird: I’d like to know why you haven’t met the burden of proof beyond a reasonable doubt and why there’s no prosecutor here as required to prosecute me because you can’t have a show cause hearing without a prosecutor as an officer of the State to prosecute me. You can’t just read –
The Court: Ms. Laird, it’s a direct question. Would you like to explain, defend, or apologize for the conduct the Court found in paragraph six? If neither, let me know; and we’ll keep going. That’s what this hearing is for.
Mr. Nelson: We’re having a hard time figuring out where the prosecutor is. I keep looking over there and it remains pretty empty and my understanding of this and this is from an hour and 15 minute conversation with the administrative Judge Underwood, to go forward we need a prosecutor.
The Court: All right.
Mr. Nelson: Somebody has to bring evidence. You’re asking my client to respond to evidence, but all you’ve done is read us a motion and cited some case law.
The Court: Mr. Nelson –
Mr. Nelson: We want to respond –
The Court: This is very simple. This is her opportunity to explain it, defend it, or apologize for it.
Mr. Nelson: We want to explain it.
The Court: Then explain number six; what’s your response?
Mr. Nelson: You give us any evidence, we’ll explain every bit of evidence.
The Court: Mr. Nelson –
Mr. Nelson: Yes, sir.
The Court: Enough with the theatrics, and don’t raise your voice.
Mr. Nelson: I will not do that again.
The Court: The evidence is your client’s motion, Amended Motion to Recuse Judge, we’re here solely on your client’s actions and statements she made.
Mr. Nelson: As far as her motion she filed under oath, she stands by it 100 percent.
The Court: As to paragraph six of the show cause order, does she have any response?
Mr. Nelson: You have no jurisdiction, your Honor. A prosecutor should be putting evidence on number six; that’s why we’re here. That’s what we’re waiting for.
The Court: All right. Anything further, Mr. Nelson? Does she wish to explain, defend, or apologize? That’s the purpose of this hearing. At the conclusion of this hearing if she wishes to appeal, there will be a new judge to hear that to determine her guilt or innocence.
Mr. Nelson: Your Honor, you cited a bunch of cases. Will you please cite the law where she has to – what were they? Answer, defend, or explain or apologize; is that a law?
The Court: That’s the purpose of this procedure?
Mr. Nelson: But is it a law?
The Court: That’s the procedure.
Mr. Nelson: But you just cited a bunch of cases and law –
The Court: Mr. Nelson, I’m not here to educate you and I’m not here to argue with you and you should not be here to argue with the Court.
Mr. Nelson: I would never want to argue with this Court, Judge.
The Court: All right. You got a simple question, and you have a duty of candor. Do you want to explain it, defend it, or apologize?
Mr. Nelson: We want –
The Court: Paragraph 6, one or the other.
Mr. Nelson: Yes, we want to answer every allegation.
The Court: All right. Sit down. Court will take notice that Ms. Laird did not choose to apologize, explain, or defend the allegations in paragraph six.
Mr. Nelson: Objection, your Honor. We’ve heard no evidence. We want to respond to your evidence.
The Court: The Amended Motion to Recuse, that’s what we’re here for. You understand that, right?
Mr. Nelson: It’s got to be beyond a reasonable doubt. You have got to put on evidence, or somebody does. I want to respond to evidence.
The Court: Go to paragraph seven, does your client wish to explain, defend, or apologize for the findings in paragraph seven on page six of the show cause order?
Mr. Nelson: We want to explain.
The Court: Do it right now.
Mr. Nelson: We need evidence. Once we hear evidence, we’ll explain.
The Court: Pick a person to explain.
Mr. Nelson: No, we want to hear evidence. We want to respond to evidence is what we are hoping to do.
The Court: The evidence is in the file. I’m assuming you read –
Mr. Nelson: Your Honor –
The Court: – the file before coming here today and I’m assuming you –
Mr. Nelson: Your Honor, I did and I read a motion to recuse written by you before you were a judge and you talked about how –
The Court: All right. Mr. Nelson, don’t interrupt the Court.
Mr. Nelson: I thought you said I could talk.
The Court: Let’s take notice that there are four more counsel that can take your spot.
Mr. Nelson: We don’t want that to happen. So, I’m going to try really hard.
The Court: I hope so; sit down. Very simple, any explanation, defense, or apology to paragraph seven on page six?
Mr. Nelson: We do want to explain it, your Honor.
The Court: Do it right now.
Mr. Nelson: We want to hear evidence first, and then explain the evidence.
The Court: Let the record reflect that Mr. Nelson seems to be engaging in games versus – if you want to put on evidence to explain it , do it right now.
Mr. Nelson: I want to cross examine, your Honor, that’s what I’m hoping to do, just like a defense attorney –
The Court: You may put your client on the stand and question her.
Mr. Nelson: I want to cross examine. Can I ask you questions? You seem to put the evidence forward. Can I please question you?
The Court: No, sir, but you may put your client on the stand.
Mr. Nelson: Your Honor, it’s my understanding the State has the burden of proof beyond a reasonable doubt. The state represented by Kevin Petroff has chosen not to come up to this table.
The Court: This is not The State of Texas v. Lori Laird.
Mr. Nelson: Sure it is.
The Court: This is Lori Laird’s contemptuous conduct –
Mr. Nelson: This is a quasi criminal proceeding, your Honor.
The Court: – before this Court. Let the record reflect that no explanation, defense, or apology was offered or tendered in response to paragraph seven.
Mr. Nelson: Can the record also reflect that no evidence was offered for paragraph seven, your Honor?
The Court: You can take that up if your client chooses to appeal. Paragraph eight, does your client wish to explain, offer any explanation, defense, or apology to paragraph eight?
Mr. Nelson: Our response is there’s been no evidence of paragraph eight and we’d like to cross examine evidence if it was ordered on paragraph eight and that would help be our explanation.
The Court: The Court takes notice that Ms. Laird when given the opportunity to paragraph eight offered no explanation, defense, or apology. Paragraph nine on page six, does your client wish to offer any explanation, defense, or apology to the findings in paragraph nine?
Mr. Nelson: Your Honor, we believe that the State has the burden of proof of beyond a reasonable doubt on every allegation; and we should be given the right to cross examine every allegation.. There has been nothing offered by the State. Nobody is at this table for the State. Kevin Petroff is here on the third row. You keep reading documents to us. We have not had the right – opportunity to cross examine anything. You just keep reading to us and wanting responses. We do not have to answer your allegations. We can only answer to the evidence brought forward in this.
The Court: All right. Thank you. Court will take notice no explanation, defense, or apology was offered in response to paragraph nine. Paragraph ten, does your client wish to offer any explanation, defense, or apology to paragraph ten?
Mr. Nelson: Again, we do not because as we see it, the Court does not have subject matter jurisdiction. It does not have personal jurisdiction. Once the recusal has been signed, this case should have gone to a different judge which you asked for at the first paragraph of your motion and order and –
The Court: Mr. Nelson, so, when I ask a direct question, I don’t want a history on anything else. I want an answer to the direct question.
Mr. Nelson: I’m trying to answer you, Judge. I’m doing the best I can.
The Court: Listen very carefully. Does your client have any defense, explanation, or apology to paragraph ten?
Mr. Nelson: Absolutely.
The Court: Offer it right now.
Mr. Nelson: We would like to cross examine your evidence on this, your Honor.
The Court: All right. Anything else?
Mr. Nelson: Well, there’s been no evidence, yet.
The Court: Mr. Nelson, anything else?
Mr. Nelson: No, we want –
The Court: The record will reflect that –
Mr. Nelson: – to cross examine.
The Court: Mr. Nelson, you’re excused for interrupting the Court. Who wants to take over as lead counsel?
Mr. Nelson: Your Honor, to excuse me you actually have to find me in contempt.
The Baliff: You have to go.
Mr. Nelson: On the order you have to – he has to find me in contempt on the order.
The Baliff: Let’s go.
Mr. Nelson: You have to find me in contempt on the order.
The Court: Ms. Tracy, are you new, lead counsel?
Ms. Tracy: Yes, your Honor.
Cynthia Tracy took over for Tad Nelson when he was expelled. The hearing continued on with Dupuy going through each of his 37 charges of contempt asking for an explanation, defense or apology and Laird’s attorneys objecting about the lack of evidence and the procedure. Then, Greg Hughes took over and kept pointing out to Dupuy that a prosecution for criminal contempt required a prosecutor and evidence and witnesses. Dupuy kept ignoring those fine points of law and interrupting Laird’s attorneys even as he threatened her lawyers repeatedly not to interrupt him. At one point, Greg Hughes told Dupuy the following:
Mr. Hughes: We have no evidence to be able to respond to. We have no procedure to follow to figure out what the rules are, either in civil or criminal law. The normal procedure in a case of contempt is first, evidence is put on of the alleged contempt and violation of the direct court order. Number two, there has to be a showing of the wilfulness of a person of contempt and an intent to show contempt to the Court; and number three, to show there is no evidence or defense, no evidence of a defense. In this case it appears the Court has skipped number one, putting on evidence, skipped number two, putting on the evidence of willfulness, which comes directly to the third prong is to show no defenses and then reverses the burden of proof and ask our client to show there is no evidence of a defense and we believe this is all entirely improper.
The Court: All right, anything else?
Mr. Hughes: No, your Honor.
The Court: All right. Mr. Hughes, just so – if you’d like to take a moment. We’re not here on civil contempt where she has violated a court order. We’re here on criminal contempt . So, if you need a moment to research criminal contempt, let me know.
Mr. Hughes: Yes, your Honor, we’ve asked that question several times and didn’t get an answer. So, we’re here on direct criminal contempt , is that what –
The Court: We’re here on indirect criminal contempt which is why your client is being afforded this hearing.
Mr. Hughes: I believe, your Honor, that indirect criminal, again, requires a prosecution. It requires evidence of the alleged contempt in violation of the order with enough specifity to respond to it, witnesses that can be cross examined on those evidentiary points, and a showing of willfulness of contempt requires notice of ten days notice under the Family Code. I’m not sure of notice under this one but I’m sure one day is not sufficient and again, shows – requires a showing of evidence by the prosecution that there are no effective defenses, that all this should be found beyond a reasonable doubt based on the evidence presented; we have no witnesses to respond to.
The Court: All right. Let’s move on to paragraph 31. Does your client offer any explanation, defense, or apology for the statements she makes within paragraph 27 of her motion?
Finally, Dupuy adjourned the Crowson contempt action late on Monday afternoon and Laird was ordered to return the next morning to complete the Crowson hearing and take up the contempt action in the Wishart case. On Tuesday morning, February 12, Dupuy called the Crowson case and after making sure Ms. Laird’s counsel were ready, Dupuy announced the following:
It shall be the order of this Court that Lori Laird shall be held in criminal contempt. Cost of court will be adjudged against her. Court finds that a fine in the amount of $250 is just and fair for each count [for 36 counts that would total $9,000].
Court finds a sentence of confinement in the Galveston County jail for a term of 110 days is just and affair, and that those sentences shall be served concurrently. Per the Government Code, Ms. Laird shall be released on personal recognizance bond pending appeal in any subsequent guilt/innocence hearing.
After Ms. Tracy made some arguments why Dupuy could not issue that ruling, Dupuy then said:
So, this Court has issued the ruling and now, this case will come into play but the question is: does your client wish to appeal because that is what Judge Underwood would like to know?
Laird’s attorneys tried to explain that an appeal is not the proper procedure and Dupuy referred to a 2004 guideline for contempt which Underwood had provided him. In turns out, Underwood had only sent Dupuy a 2004 CLE article written by judge David Peoples which Dupuy had presumably not read nor understood and certainly not followed. That article on its last page provides a summary of the six steps of a contempt action:
Step One: Contemptuous remarks or actions occur in court.
Step Two: Contempt holding by offended judge. “It is probably best to hold the lawyer in contempt on the spot, but you can simply state you wll be referring the matter to the Regional Presiding judge for action. Either way, there will be a trial de novo before the second judge.”
Step Three: Motion for Contempt. “You will have to prepare a motion for contempt (or a show cause order) that lays out the contemptuous conduct in sufficient detail. Forward it to the Regional Presiding Judge.”
Step Four: Assignment of judge. “The Presiding Judge will assign himself or another judge to hear the matter.”
Step Five: Hearing. “The Presiding judge (or the assigned judge) will set the hearing. You will need to have the respondent personally served. The judge will hear the entire matter de novo and dispose of it.”
Step Six: Appellate Review.
So, Dupuy arguably had completed steps 1 – 3 above when he issued his order holding Laird in contempt in December or early January. Then, the matter should have gone to Judge Underwood to appoint an assigned judge to determine guilt or innocence. Dupuy screwed up steps four and five. This 2004 CLE article does not mention an extra step that involves a hearing where the defendant is given the change to defend, explain or apologize as Dupuy insisted on. Most importantly, this 2004 CLE article does even address the situation where a motion to recuse is filed before the challenged judge tries to hold the lawyer in contempt. That situation is covered by the Jamilah v. Bass case that Dupuy had cited in his own motion to recuse a judge the year before all of this mess started with Lori Laird.
Dupuy asked several times if Ms. Laird wanted to appeal his contempt finding to Judge Underwood. Those repeated questions show Dupuy knows nothing about how contempt actions work. The Texas Government Code Sec. 21.002(d) makes it clear that a lawyer who is held in contempt, “on proper motion filed in the offended court” gets an automatic trial on guilt or innocence and punishment before an assigned judge. Dupuy was told by Cynthia Tracy when court first resumed on Tuesday morning that Laird had filed a motion under Section 21.002(d). The hearing before an assigned judge is not an “appeal” of the contempt finding – it is a trial de novo to determine if the attorney has committed contempt.
On Tuesday morning, Dupuy went through the same charade on the Wishart case and confirmed that Laird would not explain, defend or apologize for the various counts of contempt Dupuy had brought against her for filing the motion to recuse in that case. Dupuy found Laird in contempt and imposed the same sentence. Laird did not go to jail. Dupuy said he would, “…refer this matter to the presiding judge for Ms. Laird’s guilt/innocence hearing. During this time she shall be released on a personal recognizance bond.”
Laird and her entourage then rushed from Dupuy’s courtroom to the fourth floor of the courthouse for the hearings on the motions to recuse in the Crowson and Wishart cases that had been set before assigned Judge Sharolyn Wood. The fact that Judge Underwood even scheduled those recusal hearings showed the Underwood did not believe that Dupuy had properly recused himself in those cases.
The assigned judge, Sharolyn Wood, first took up a motion by Dupuy’s court reporter to quash a subpoena served on her by Lori Laird for the two recusal hearings. Judge Wood did not grant the court reporter’s motion and instead said she could go about her duties in the courthouse and if Judge Wood determined her testimony was indeed relevant, she would be summoned back to court. Lori Laird is convinced that the threat of his court report having to testify made Dupuy give in (sort of). Dupuy then sent over two orders that did not clearly state he was recusing himself. The two orders in the Crowson and Wishart cases which Dupuy at first signed on February 12 after Judge Wood started the recusal hearings said in part:
But, while the Court is exceedingly qualified to participate in this case, the Court finds that after holding Ms. Laird in criminal contempt and recommending her confinement in the County jail that the appearance of propriety dictate that the Court sua sponte recuse itself from any further proceedings in this case.
So that all parties in this case will have confidence in a fair and impartial tribunal, Judge Sharolyn Wood, appointed by Judge Underwood, is requested to grant this voluntary order of recusal in this matter.
Judge Wood adjourned the recusal hearing and went to Dupuy and had him sign orders in both cases that explicitly stated, “I have granted the Rule 18a request in the above numbered cause of action and refer this case to the Presiding Judge of the Second Administration for assignment of another judge.”
So, having just found Laird in contempt of court for filing the two motions to recuse, Dupuy then recused himself and finally granted Laird’s motions.
Dupuy’s incompetency and crazy behavior in this episode can be summarized as follows:
- Once Laird filed her motions to recuse, Dupuy should have clearly granted the motions or clearly decline to grant the recusal requests.
- Dupuy lacked the authority to hold Laird in contempt for filing her motions to recuse because:
(A) Only the assigned judge can impose sanctions for filing a motion to recuse.
(B) The pending motion to recuse prevented Dupuy from taking any action in the case and any order he signed was void.
(C) Laird’s expression of her First Amendment rights to criticize Dupuy outside of court are not the proper subject of a contempt finding.Dupuy apparently held Laird in contempt on the very day Laird really angered Dupuy by trying to take his deposition in a case where Laird represents Dupuy’s ex-wife. Dupuy should have realized that the appearance of improper motive and behavior would be created by a judge trying to hold his ex-wife’s attorney in contemptOnce Dupuy signed his order holding Laird in contempt, he should have sent the order to Judge Underwood to assign a judge to determine Laird’s guilt or innocence, as his own order stated was the proper procedure.
- There was no legal reason for Dupuy to conduct a hearing to determine if Laird was in contempt once he issued his order holding her in contempt. Anything he did at that point was void anyway because of the pending recusal motions. There is no statute, rule or case law that requires or allows a judge in Dupuy’s position (subject to a motion to recuse and already having signed an order holding the attorney in contempt) to conduct a hearing where Laird was expected to waive her Fifth Amendment rights and explain, defend or apologize for her allegedly contemptuous actions. The “instructions” Dupuy claims he received from Judge Underwood for conducting a contempt hearing was actually a decade old CLE article that actually should have told Dupuy to handle things completely differently.
- Dupuy should have had the self-awareness to realize what a fool he was making of himself to even conduct the February 11 and 12 hearings. The spectacle of Dupuy serving as prosecutor and judge and refusing to allow Laird’s attorneys to complete sentences much less present complete argument or present evidence was a travesty of due process. Laird was entitled to a real trial before a neutral, assigned judge with evidence presented by a prosecutor subject to the rules of evidence and cross-examination.
- Dupuy’s strange opening speech about preserving the dignity of the court was dripping in irony because the only person demeaning the dignity of the court was the judge himself, who lacked the self-awareness to realize he was making a mockery of our justice system.
- Dupuy was clearly nervous looking at the defendant, Lori Laird, with his ex-wife sitting right behind her in the gallery. However, expelling his ex-wife for chewing gum which she swallowed as soon as he said anything, was not proper and simply made Dupuy look like the angry, scared ex-spouse he has become. Expelling Tad Nelson from the hearing without holding him in contempt for simply trying to complete a sentence over the constant interruptions of the judge was also not proper.
- Dupuy should have realized that recusing himself after holding Laird in contempt for asking to recuse himself was itself proof he was in the wrong.
- Dupuy could have avoided all of this mess by simply recusing himself when Laird filed her motions. Dupuy, however, did what he has consistently done as a judge – create a totally avoidable controversy and act in ways that obviously seem improper and which are not supported by the law. Dupuy starts these controversies on his own volition but then makes himself look irrational and incompetent in the process and he just ends up creating a lot of bad press for himself. Sadly and incomprehensibly, Dupuy brings this all on himself. I wonder if Dupuy ever worries about what his children see when they Google their dad’s name.
While I admire the fight Laird is putting up against Dupuy, I do not agree with some of Lori Laird’s tactics. But, I think this crazy vindictive episode involving Laird may be the “straw that broke the camel’s back” and will be the one to finally bring Dupuy down. Laird includes some statements and allegations in her pleadings that are not germane to the issue at hand or which are not based on facts she can prove. Laird at times does not seem to care who she drags into her fight with Dupuy or about embarrassing innocent young people who have no role whatsoever in this legal struggle with Dupuy. I strongly disagree with the tactic of serving subpoenas on court reporters and others not involved in a recusal hearing simply to create embarrassment for the witness or to put pressure on the judge. Men and women (even young, pretty ones) can work together and not date or sleep together. During the February 11 and 12 hearings, Laird seemed slightly unhinged herself sitting at the counsel table (although of course, any attorney would have been very uptight in her unusual situation). Laird could not stop herself from talking loudly to her attorneys and interrupting them, even when they were addressing Dupuy. At least once, Laird came perilously close to giving Dupuy an excuse to legitimately hold her in contempt when the following exchange occurred at the February 11 hearing:
Ms. Tracy: Your honor, if I understand the Court’s position, you’re now serving as the prosecutor and the finder of fact in this matter; is that correct:
Ms. Laird: And the executioner.
The Court: Ms. Laird sit down. As a member of the Bar, you are still subject to those professional rules. Let the record reflect that Ms. Laird said under her breath “and the executioner” after Ms. Tracy’s statement. [it wasn’t under her breath since everyone in the courtroom heard Laird’s only partially incorrect remark]
I say again: we need to oppose Dupuy but we must do so ethically and professionally so that we do not lower ourselves to his level and act as bad or worse than he is. However, I will give Laird credit – she is fighting the good fight and not backing down or letting Judge Dupuy run over her. I was proud to assist her team of lawyers in planning her defense at these hearings and I was very proud of Tad Nelson, Cynthia Tracy, Greg Hughes and Greg Russell for the fight they put up for Laird in weird and very difficult circumstances.