Judge’s Sanitary-Napkin Gag Threat Is Called Offensive : Courts: Female defendant was told that if she continued to be disruptive, the bailiff would ‘take some Kotex and put it in your mouth and stick a piece of tape across it.’

A San Diego County Superior Court judge, criticized this week for threatening to gag a female defendant with a sanitary napkin, said Friday he meant no disrespect.

In fact, Judge Raymond Edwards Jr. and several other court officials said, sanitary napkins are the bailiffs’ gag of choice on the rare occasions when a judge orders the silencing of unruly defendants.

Edwards said he meant no offense when he told a woman at her May 30 mental competency hearing that, if she continued to interrupt him, he would have the bailiff “take some Kotex and put it in your mouth and stick a piece of tape across it.”

Edwards said that, to restore order to his courtroom, he has issued similar warnings in the past to male and female defendants alike. Though he has never followed through on the threat, Edwards said his understanding was that sanitary napkins are commonly used as gags.

“It’s clean, it’s sanitary and the defendant wasn’t likely to choke on it,” Edwards said. “It has nothing to do with sex.”

His bailiff, Jerome King, who was present at the May 30 hearing, agreed.

“If the defendant was male, if the defendant was two-headed, it would have been the same,” King said. “I don’t see him treating women any different than men.”

Nonetheless, some defense attorneys have charged that Edwards’ choice of words betrays an underlying bias against women. Larry Ainbinder, the deputy public defender who represents the woman involved in the May 30 hearing, called Edwards’ remarks “terribly sexist” and “grossly out of line.”

“I’m personally offended by the remark,” said Ainbinder, adding that, even if a sanitary napkin would have been used to silence his client, Edwards’ reference to putting a Kotex inside her mouth was unnecessarily frightening. “If I were a woman on trial in his courtroom, and he threatened to stuff my mouth with Kotex, I think I’d be doubly offended.”

Kay Sunday, president of the Criminal Defense Bar Assn., said she found Edwards’ reference to Kotex “just disgusting in the visual imagery it conjures up. . . . It is purely a sexual item, a personal hygiene item. I don’t like the connection there between a very personal feminine hygiene item and talking too much.”

Sunday said her group will file a complaint with the Commission on Judicial Performance, the state agency that disciplines judges. She said the complaint, which will note that Edwards made his remarks while addressing a mentally ill woman, will accuse him of bad taste, insensitivity, injudicious behavior, mean-spiritedness and sexism.

“It’s bad enough to say, ‘I’m going to have you gagged,’ ” Sunday said.

“He didn’t need to tell her with what,” Ainbinder said.

The exchange between Edwards and Ainbinder’s client, Karen Vivian Noel, occurred after Noel had interrupted the proceeding three times to question Ainbinder’s approach, the transcript of the hearing shows.

Finally, Edwards told Noel “how we go about this.” He then outlined several steps he would take to quiet her, beginning with the gagging.

“If that does not keep you from being a problem, you’re going to have these continued outbursts, the next thing I’m going to have him do is handcuff you to a chair,” Edwards told Noel. “If that doesn’t work, then I’m going to have him put a leg brace on you. . . . If that doesn’t work, then what I’m going to finally do is have him put leg . . . and waist restraints on you so that you can’t move at all.”

Noel responded: “Can I ask you a question, please? How do I communicate with Mr. Ainbinder? We have a big difference of opinion.”

Ainbinder said Noel has appeared before six other judges who showed more sensitivity to her mental infirmities than Edwards did.

“None has said anything resembling a threat, let alone a threat to stuff her mouth with Kotex,” he said. “He is not fit to be a judge.”

But some fellow judges defended Edwards’ statements.

“I do not believe it had anything to do with any sexual or sexist connotations. . . . What he was doing was reciting a fact,” said Superior Court Judge Elizabeth Zumwalt Kutzner, who once ordered a particularly “obstreperous” defendant to be gagged about four years ago.

“If you really want to know, there were two Kotexes used,” she said, recalling the incident. “When you think about it, it is a decent material for gagging. It’s sanitary, it’s large enough so it’s not going to hurt the person. It’s convenient.”

Judge Judith McConnell, the presiding judge of Superior Court, said she thought some defense attorneys had taken offense in part because of Edwards’ reputation as an outspoken, forthright and firm judge. A former prosecutor who earned the nickname “The Hammer” for his relentless pursuit of narcotics offenders, Edwards says he believes “there shouldn’t be any free crime.”

“Judge Edwards is a very firm judge,” said McConnell, who describes herself as his “big fan.” But as a result of his firmness, she said, defense attorneys “are often unhappy. He gives people a chance, but, when they come back a second time he is tough. This was their way of getting at that.”

McConnell, who has been a judge since 1977, said she had never gagged a defendant.

“But it was my understanding all these years that, if a gag was used they used Kotex, because they’re clean and they’re available,” she said. “It may be that this was not a good time for that word to be used. But the fact of the matter is, most of the judges I’ve talked to assume that is standard practice.”

Officials in the courthouse marshal’s office concurred. It is very uncommon for bailiffs to gag unruly defendants, they said. But, when they do, they use sanitary napkins.

“The only time I have any recollection that we did it, that’s the way it was done,” said Les Conner, assistant marshal at the downtown courthouse. “When you use tape like that on a person’s face, it hurts them, so you need padding.”

Each courtroom has a first aid kit, Conner said, which includes tape and sanitary napkins.

“That’s the supplies that we had available,” Conner said. “It’s very appropriate, if you’re not offended by the name or the idea. It’s soft, and it’s padded, and it’s sterile.”

Edwards said Friday he plans to change his vocabulary, if not his manner.

“Sometimes you say things that strike some people the wrong way. . . . If someone was offended, I apologize to them,” he said. “I’m a very strong and fervent supporter of women and minorities’ rights. Sexism and gender bias has no place in the courts or in our society as a whole.

“If ‘Kotex’ is not a good word, I will choose another word,” he continued, adding that in the future, “I’m going to ask their lawyer: ‘It’s been objected to by some, my use of this word. What would be your suggestion to the court to make your client behave?’ I would welcome any suggestion that anyone might have.”