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Opinion on Fine Puts Focus on Lawyer’s Alleged Ordeal
U.S. Marshals Were Purportedly Doing What Judge Wanted in Shackling Attorney, Leaving Her Chained to Chair
In Freezing, Dank Basement Cell for Hours, After Jurist Proclaimed She Was in Contempt for Trial Misconduct
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed a civil contempt fine in an opinion that is unpublished and deals with a monetary penalty in a trifling amount—$3,510—but draws attention to an occurrence in the federal courthouse in Los Angeles that, if accurately portrayed by the citee, entailed conduct by federal marshals toward an attorney that approached torment.
A memorandum opinion, filed Tuesday, affirms the action taken on Jan. 26, 2022, by District Court Judge Stephen V. Wilson of the Central District of California against Westlake Village attorney Marina Lang. Wilson found that Lang repeatedly breached a pretrial order he had issued and engaged in disruptive conduct, resulting in a new trial being granted.
While the judge described outrageous behavior on Lang’s part, her appellate brief tells of extreme indignities to which she was allegedly subjected, asserting:
“Armed U.S. Marshals put Ms. Lang in handcuffs, leg irons, and chains before perp-walking her out of the courtroom in front of the jury and putting her in a filthy, windowless, barred, and freezing jail cell in the basement for several hours.”
Trademark Litigation
Lang represented the plaintiff in an action in which it was claimed that the defendants sold counterfeit products infringing on her clients’ trademarks. The dispute was supposedly settled but, the plaintiff contended, the defendants breached the settlement agreement, thereby voiding it, and it wanted to resume its effort to seek damages for the alleged infringement.
Wilson ruled in 2021 that the only issue in the first phase of the trial would be whether the settlement agreement had been breached and ordered that the alleged counterfeit nature of the defendants’ wares not be mentioned.
In making his 2022 contempt adjudication, the judge found that Lang “repeatedly made reference to the counterfeiting allegations underlying the trademark infringement claims, which were not at issue in the Phase I trial,” “repeatedly interrupted proceedings throughout the trial,” and “frequently continued to argue after the Court had issued rulings.”
Specific Instances
The judge pointed to specific instances of misconduct at the trial on Nov. 17, 2021, including Lang’s outburst in protest to his order that portions of the settlement agreement not be disclosed to the jury in light of undue prejudice those portions would engender. Wilson recited:
“After the Court sustained an objection during Ms. Lang’s closing argument, and she interrupted to continue arguing the ruling, Ms. Lang raised her voice to the point of yelling….Ms. Lang shouted, ‘this is my client. They are paying me a lot of money to advocate for them, and you won’t even let the jury see The Settlement Agreement. This is outrageous. This is outrageous.’…She continued, ‘I could lose my license if I don’t scream from the top of the wall that this Settlement Agreement needs to go into evidence. That’s all I want. The Settlement Agreement needs to go into evidence, or I’m going to get disbarred.’…At that point, the Court ended Ms. Lang’s closing argument as the only way to regain control of the proceeding, and the Court warned Ms. Lang that it was being left with almost no recourse other than more drastic action.”
Wilson then told what occurred when the defendant’s lawyer, David C. Voss of the Marina Del Rey firm of Voss, Silverman & Braybrooke, LLP, argued to the jury, setting forth:
“Mr. Voss then began his closing argument, in which Ms. Lang continued outright yelling in making her objections and shouting ‘this is error,’ after the Court overruled her….The Court again cautioned that the proceedings were getting out of control….It was at this point that Ms. Lang began speaking under her breath, within earshot of the jury, during Mr. Voss’s closing argument….The Court raised this point, and Ms. Lang responded in exasperation, ‘It’s so hard being a woman,’ implying that the Court’s actions to maintain order were motivated by sexism.”
Removed From Courtroom
As Wilson recounted it in his order: outside the presence of the jury, he had Lang removed from the courtroom and detained in a holding area so that Voss could complete his argument. (Lang’s co-counsel remained.)
The following day, the defense moved for a new trial and Wilson granted it on the ground that the jury was tainted by virtue of Lang’s conduct.
In his January 2022 order, he imposed the $3,510 fine, to be paid to the defendant, based on 5.4 hours of Voss’s time spent at the aborted trial. It was calculated based on his billing rate of $650 per hour.
In that order, Wilson commented:
“This sanction is the minimum necessary to compensate Defendants for the costs that resulted from Ms. Lang’s egregious conduct. As it noted at trial, this Court, has scarcely seen such conduct in its long tenure presiding over trials”—which has been since 1985—and added:
“[T]he Court can only hope that it rarely sees such conduct again in the future.”
In her appellate brief, Lang—through her lawyers, Heather L. Rosing, Dan Lawton and Irean Z. Swan of the San Diego firm of Klinedinst PC—got on the offensive. The brief asserts that she was subjected to “medieval treatment” for which the judge cannot escape responsibility.
The brief recounts that after Wilson declared at trial that Lang was in contempt and ordered that she be taken into custody, this happened:
“Several armed U.S. Marshals, all male, swiftly approached counsel table. They told Ms. Lang to stand and be handcuffed, then put her in handcuffs. They added leg irons and a chain, which they looped around Ms. Lang’s waist, chest, and shoulders. The chain ran down the centerline of her body, between her legs. Marshals used the chain to connect the handcuffs to the leg irons.”
Basement Jail
First, she was taken to a holding area behind the counsel table but then, it was chronicled, the deputy marshals decided to take her to a jail in the basement. This description of events was provided:
“The Marshals walked Ms. Lang barefoot through the tenth floor concourse, to a public elevator, which took the group to the basement, which houses jail cells designed for holding criminal defendants and suspects. Along the way, Ms. Lang stumbled several times. When they arrived in the basement, the guards took her personal information and booked her as they would a common street criminal. Then they put Ms. Lang in a jail cell and locked her inside.
“Dirt and trash littered the floor of the cell. There was a urinal filled with feces. There were no windows. The cell was cold - it felt ‘freezing’ to Ms. Lang. Ms. Lang couldn’t stop weeping. When she asked the Marshals why she was jailed and in irons, the Marshals consistently gave the same answer: ‘We do whatever the judge tells us to do.’ ”
In the courtroom, Wilson explained that he could have found Lang in criminal contempt but opted to be lenient, and announced that he would have her released and led out of the courthouse.
Chained to Chair
Lang’s brief says:
“Down in the basement, Ms. Lang remained chained to a chair in her cell, in despair, weeping, and oblivious to what was going on upstairs. She was in physical pain. She felt treated like an animal. She felt helplessness, fear, powerlessness, and uncertainty. As she sat in her cell, she knew that hogtied persons had died of positional asphyxia. During a shift change, guards lost the key to her handcuffs. After over an hour passed, they found it again.”
Lang was, according to the brief, taken back upstairs and left in an empty courtroom, “still handcuffed and shackled,” and instructed to wait for Wilson—who did not show up. Eventually, “[t]he Marshals released her after hours, leaving her stranded at night on the courthouse steps in downtown Los Angeles,” the brief says.
Her lawyers wrote:
“Disciplinary authorities have grown more vigilant to tyrannical treatment of lawyers by judges in the courtroom. Recently, the Texas Commission on Judicial Conduct publicly reprimanded a State court judge, Barbara Stalder, for ordering two attorneys in her courtroom shackled to chairs in the jury box during hearings and banning one of them from returning to her courtroom.”
‘Dangerous Message’
The lawyers went on to say:
“If allowed to stand, Judge Wilson’s rulings will send a poor and dangerous message to every attorney practicing in every district court in this Circuit. That message will be that no attorney, on a bad day or a good one, will be safe from being shackled, frog-marched to jail in front of client, counsel, and jurors, fined, and held in contempt without a hearing, should she offend the District Judge with advocacy that is deemed to cross a line. In resolving doubts about whether a lawyers courtroom behavior has crossed the line between vigorous advocacy and actual obstruction, this Court errs on the side of n favor of vigorous advocacy….This is as it must be.
“This appeal offers no remedy for Judge Wilson’s summary arrest and incarceration of Ms. Lang on November 17, 2021, disqualification from representing her client in the case, and concomitant harm to her reputation. Any prospective client or referral source with a PACER account can see for themselves what happened in Judge Wilson’s courtroom and decide how it affects the decision to hire, or not hire, Marina Lang as their counsel in the future….Should that decision be negative, it will be made in private, and Ms. Lang will likely never know it.”
The brief says that “[t]his harm is irremediable” but adds that what can be remedied is the existence of Wilson’s order of contempt. It should be reversed, with a holding that Lang was not in contempt or, at a minimum, there should be a remand with another judge deciding the matter, the brief urges.
Ninth Circuit Opinion
The opinion affirming the contempt order was signed by Circuit Judges Consuelo M. Callahan, Ryan D. Nelson, and Holly A. Thomas.
The judges did not discuss Lang’s allegation of mistreatment, saying in a footnote:
“Lang acknowledges that she lacks an appellate remedy for her period of temporary confinement and does not appeal it, so we express no views on that issue.”
Callahan, Nelson, and Thomas also did not discuss Wilson’s finding that “Ms. Lang engaged in a repeated pattern of disruptive behavior,” instead devoting its attention to what Wilson characterized as a defiance of his pre-trial order.
In her brief, Lang asserted that Wilson’s order was not clear and that she told the judge, “I don’t know what I’m allowed to argue,” and that her interpretation of the order was in good faith.
The brief says:
“Ms. Lang shouldn’t have argued with Judge Wilson’s evidentiary rulings….But, where counsel has made every reasonable effort to comply, a few technical violations do not vitiate substantial compliance with a specific and definite court order.”
The panel responded:
“Despite a clear pretrial order forbidding testimony or argument about the nature of the allegedly counterfeit products sold by [the defendant], Lang repeatedly mentioned counterfeit products in her opening statement, while questioning the only witness during the trial, and in her closing statement. She did this despite verbal warnings from Judge Wilson reminding her of the scope of the pretrial order. This is not a ‘technical’ violation, as Lang urges, but a direct violation of a clear court order. Judge Wilson acted within his discretion in concluding that Lang was not acting based on a reasonable or good faith interpretation of his order.”
Contempt Hearing Scrubbed
At the trial on Nov. 17, 2021, Wilson proclaimed:
“You are in contempt. Is the Marshal there? Take Ms. Lang in custody. She’s in contempt of court.”
However, he later scheduled a contempt hearing for Jan. 24, 2022. He then cancelled that hearing and issued his Jan. 21 order finding Lang to be in contempt (saying she wasn’t actually found in contempt before) and ordering that she pay a fine.
Lang argued that due process required a hearing. The panel disagreed, saying:
“Since the sanctions were civil, Judge Wilson’s show-cause order, which informed Lang of the basis for his contempt finding and provided her an opportunity to respond, satisfied due process requirements. Even for indirect contempt—that is, misconduct outside the courtroom—we have affirmed sanctions imposed without an in-person hearing….An in-person hearing was not required under these circumstances.”
The case is Athena Cosmetics, Inc. v. AMN Distribution, Inc., 22-55159.
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