Metropolitan News-Enterprise


Monday, June 10, 2002


Page 1


Lawyer’s Handcuffing in Front of Jury Did Not Deprive Client of Fair Trial, Ninth Circuit Rules


By a MetNews Staff Writer


A defendant whose lawyer was handcuffed and removed from the courtroom after a series of clashes with a veteran federal judge was not deprived of due process of law, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Senior U.S. District Judge William H. Orrick did not unduly prejudice Marcellus Aaron Elder by ordering that Maureen Kallins be taken from the courtroom following “a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges,” Judge Michael Daly Hawkins wrote for a divided panel.

Elder was convicted of possessing and distributing cocaine and sentenced to 14 years in prison. In addition to upholding the conviction, the panel concluded that the sentence was properly enhanced on the basis of findings the defendant carried a gun and was a leader of a criminal enterprise involving five or more persons.

Judge Harry Pregerson concurred with Hawkins, but Senior Judge Warren Ferguson dissented. Ferguson said his colleagues should have focused on the impact of the incident on the defendant, rather than the conduct of the lawyer, and suggested that Kallins was a victim of sexism in the series of incidents referred to by Hawkins.

Kallins, who could not be reached Friday for comment, was placed on inactive status in January under Business and Professions Code Sec. 6203(d) for failing to comply with an arbitrator’s ruling in connection with a fee dispute, a State Bar spokesman said. Before that, she practiced criminal defense law with her husband, Charles Gretsch, with offices in the Marin County community of Larkspur.

Kallins was the subject of a front-page profile in the Los Angeles Times last year, detailing her history of run-ins with judges. The story quoted supporters who said her combative style has enabled her to win more than her share of cases, as well as detractors who suggested that while her courtroom flamboyance may have impressed clients, it did not necessarily sit well with jurors.

The newspaper reported that Kallins had been held in contempt six times, and jailed three times.

In a case similar to Friday’s, the Third District Court of Appeal in 1999 upheld the conviction of a Kallins client charged with insurance fraud. The defendant, Presiding Justice Arthur Scotland said, was not prejudiced by the trial judge’s repeated admonitions of Kallins for “unprofessional, offensive  and contemptuous conduct,” the likes of which the panelists had “seldom seen” in all of their years in the legal profession.

In the incident leading to Friday’s appeal, Kallins apparently protested loudly after Orrick said he could not recall making an order that limited a prosecution witness’ testimony.

After she was removed, the judge commented, in the presence of the jury, that Kallins had been “screaming and crying and yelling at the top of her voice in total disrespect for the court” and “trashing the United States” and said he wouldn’t “have it in my court.”

When Gretsch, serving as his wife’s co-counsel, said Elder did not want to proceed without Kallins, the judge declared an hour recess, then acknowledged he had been mistaken about the order and allowed Kallins to resume representing the defendant after apologizing to the court.

Hawkins noted Friday that Orrick did not order the defendant handcuffed, an action the bailiff took on his own. “And,” the appellate jurist wrote, “while in the cool light of day it might have made more sense for the court security personnel to have refrained from handcuffing counsel and for the district court to have used somewhat more temperate language, we decline to reward the kind of deliberative disruptive behavior engaged in here with the reversal of a conviction so clearly supported by the evidence.”

Ferguson was far less charitable to the district judge, saying he had created a “pervasive climate of partiality,” by accusing Kallins of being anti-American and launching “a personal tirade regarding counsel.”

The judge’s misconduct was so substantial, Ferguson said, that it constituted structural error requiring reversal.

Elder’s appellate counsel, Robert V. Vallandigham Jr. of San Francisco, said he would likely seek en banc review.

While Orrick “was obviously provoked,” he told the MetNews, the panel majority failed to recognize the “great prejudice” he created by accusing counsel of “trashing the United States.”

The case is United States v. Elder, 00-10143.


Copyright 2002, Metropolitan News Company