James Gill: Marullo’s answer to crime wave: jail the prosecutor

After a hearing at a New Orleans criminal court today, the defendant will be found guilty.

It is easy on this occasion to report the news before it happens. The judge will uphold the charge, because he’s the one who brought it. The rap is contempt of court, the one branch of American law where due process yields to the spirit of the Star Chamber.

Judge Frank Marullo does not like the defendant, Chris Bowman. He does not like Bowman’s boss, District Attorney Leon Cannizzaro. He evidently doesn’t like reading the Revised Statutes either, because his grasp of contempt law is decidedly shaky. As the longest-serving jurist in Louisiana, he likes to throw his weight around, however.

Bowman, who doubles as a prosecutor and spokesman for Cannizzaro, got in Dutch last week when this newspaper quoted some unflattering remarks he made about Marullo’s conduct in a murder case. Big mistake. Bowman had forgotten that one of his own colleagues had persuaded Marullo to impose a gag order in the case last August. No sooner had Marullo read his paper than he summoned Bowman to court, brushed aside his requests to retain counsel, found him in contempt and ordered deputies to haul him off to the slammer for 24 hours.

Bowman got no further than the holding cell. He was soon cooling his heels in his own office after a sympathetic Sheriff Marlin Gusman released him to Cannizzaro’s custody, purportedly to perform community service. By the time an enraged Marullo found out and issued an arrest warrant, the appeal court had vacated his original ruling.

Bowman was free, but this was hardly the sweetest of victories. He is still at Marullo’s mercy, and now faces a maximum of six months when he appears in court this afternoon, charged under a different section of the contempt law. The long-running feud between Marullo and the DA’s office was never this nasty.

The latest spat began when prosecutors joined defense attorneys in a request to delay a Feb. 3 hearing for Juan Smith, who is challenging his conviction for a 1995 triple murder while awaiting retrial for a quintuple committed the same year. One of the defense attorneys has another client scheduled for execution Feb. 5, and is therefore certain to be somewhat preoccupied when Smith is due in court. To hell with it, Marullo said. The Smith case has dragged along enough.

Marullo was out of line, Bowman advised a reporter, because, “It’s well settled law that a judge doesn’t have discretion to deny a joint motion for continuance.” But Bowman, after musing whether Marullo was “trying to grandstand,” ranged further afield. He was also miffed because Marullo had phoned in a derisory bond for an alleged pedophile a few days earlier.

If Marullo wanted to show he was tough on crime, he should give prosecutors a say before going easy on “people who are trying to have sex with 10-year-old children,” Bowman said. That remark did not violate a gag order, but it is a fair bet it made Marullo all the more eager to get Bowman into court.

State law recognizes two kinds of contempt — “direct,” which consists of sassing a judge in court or a “contumacious failure” to appear there, and “constructive,” which includes “willful disobedience of an order.” The maximum sentence for a lawyer guilty of direct contempt is the 24 hours in the hoosegow imposed on Bowman, but anyone who commits the constructive variety is liable to get more serious time.

Although Marullo found Bowman guilty of direct contempt, he had clearly misread the law and was swiftly overruled by an appeal court panel, albeit with one dissent. “I find no error in the ruling of the trial court,” wrote Chief Judge James McKay, who cannot have looked very hard.

Marullo’s response was to double down and order Bowman to “present any evidence as to why he should not be held in constructive contempt.” It is impossible to conceive of any evidence that would persuade Marullo to dismiss his own complaint. Only in contempt cases is there not even a pretense of judicial impartiality.

Cannizzaro and his assistants have not hesitated to blast various Marullo rulings over the years. Perhaps they especially won’t like the one he hands down this afternoon.

James Gill’s email address is jgill@theadvocate.com.