Despite an order from the judge banning the use of all recording devices, Drake Ewing photographed brother Jacob Ewing in a Holton, Kan., courtroom, where Jacob Ewing is being tried on charges of rape and aggravated criminal sodomy this week.
The photograph was submitted to The Star and its validity confirmed with an administrative assistant with the Jackson County (Kansas) District Court. The action constitutes direct criminal contempt of court, according to Olathe-based defense attorney David Langston, penalties for which could include expulsion from the courtroom and jail time.
“The judge is dealing that this morning,” the administrative assistant said. “They’ve been warned.”
She added the judge, Norbert Marek, was not in the courtroom when the photo was taken. If it happens again, she said, the person will be removed from the courtroom.
Sign Up and Save
Get six months of free digital access to The Kansas City Star
In the photo, Drake Ewing takes a selfie with his brother in the background. In addition to the rape and sodomy charges, Ewing is accused of furnishing alcohol to a minor, battery and possession of hallucinogenic drugs.
A member of the Ewing family nor Jacob Ewing’s defense attorney could immediately be reached for comment. The trial resumed Thursday; the judge warned the courtroom against taking photos.
John Houston, a staff attorney with the Kansas Office of Judicial Administration, said a photo wrongly taken during jury selection for a trial in north-central Kansas caused a mistrial. In that incident, a television station from Nebraska captured video of prospective jurors, Houston said.
But in the Ewing case, Langston said he was unsurprised only a warning was handed down.
“In the context of the tumult of this case ... I think the judge is using his discretion,” he said. “He didn’t want to put any fuel on the fire.”
Had the photo showed the alleged victims or jurors, that would have been more serious, Langston said, but “taking a picture of the defendant, who’s been publicized on television and shown on print, that’s not as harmful” as potential jury intimidation by photographing jurors.
“It is unusual for a judge to take a more drastic measure if a less drastic measure suffices,” he added.