Was a Lawyer Subjected to Barbaric Abuse at a Federal Courthouse?

Wednesday, February 1, 2023

Page 10

EDITORIAL

Was a Lawyer Subjected to Barbaric Abuse at a Federal Courthouse?

Allegations of Official Misconduct Must Be Probed

HE NINTH U.S. CIRCUIT COURT OF APPEALS last week affirmed, in a non-precedential opinion, a paltry $3,510 contempt fine imposed on a Westlake Village lawyer, Marina Lang, on the ground that she revealed to a jury, at various points, matter that, under an in limine order, she was barred from disclosing, with a new trial being ordered, as a result. The judge also found—though not discussed by the Ninth Circuit panel—that Lang engaged in obstreperous behavior that could have had an effect on the jury.

On the surface, the matter, arising in a trademark-infringement case in which Lang represented the plaintiff, is barely worthy of notice. But delving deeper into the case, there is found the lawyer’s account of brutal and bizarre actions taken against her in reaction to the judge’s displeasure with her. If what she says happened did happen at the courthouse on First Street in the downtown Los Angeles Civic Center, the victimizing of her by federal authorities is, in our view, scandalous.

Was she, as she asserts under penalty of perjury, not merely ousted from the courtroom but handcuffed, paraded through the courthouse in front of colleagues and others so bound and, while being booked, placed in leg irons and chains? Was she forced to hobble as she was taken to a basement cell with her wrists and ankles still in metal restraints—which the lawyer terms a “humiliating shackled-shuffle”—and then chained to a chair in a cold, dank basement cell with offensive odors, and left there for hours, unable even to scratch her nose?

If so, this can hardly be dismissed as a slip-up. It would be ruthless conduct even as to someone who had been convicted of a felony and was in prison. There is hardly a need to immobilize a non-violent, non-psychotic person under any circumstances. To do so when that person is in a locked cell is senseless and shocking.

Indeed, a simple order to leave the courtroom and not return would probably have sufficed, with the aid of deputy marshals enlisted only in the unlikely event that she did come back.

Whether there was an excessive use of force by deputy U.S. marshals warrants attention by E. Martin Estrada, the U.S. attorney for the Central District of California, and by the federal Grand Jury.

F LANG’S ACCOUNT IS ACCURATE, there is a question also to be answered as to the level of involvement by District Court Judge Stephen V. Wilson. Did he direct or countenance—or even know of—the cruelty visited upon the lawyer after he advised Lang, in court on Nov. 17, 2021, “You are in contempt,” and saying:

“Is the Marshal there? Take Ms. Lang in custody. She’s in contempt of court.”

If he was not aware of the events that ensued as the result of his command to the deputy marshals, should he have been?

Wilson said, in a Jan. 26, 2022 order imposing the civil contempt fine, that he hadn’t actually found Lang in contempt two months earlier. He maintained that her removal from his courtroom “was not a contempt sanction at all—whether civil or criminal—rather it was an exercise of the Court’s authority to maintain order, necessary as the only way to keep Defendants’ closing argument from being further disrupted.”

In a footnote, the judge acknowledged having told Lang, “You are in contempt,” but dismissed the significance of that by saying: “However, this was not an actual summary contempt adjudication….” He explained that he “did not pronounce a sentence, nor complete a summary contempt certification, as required” by Rule 42 of the Federal Rules of Criminal Procedure and case law.

Oh? A judge has not, in fact, taken an action, though pronounced by the judge, if that action is not authorized by law? Poppycock.

He did not say, “Escort her out of the courtroom”; he proclaimed that Lang was in contempt and was to be taken “in custody.” The deputy marshals acted accordingly. Wilson brought about the treatment of her as a criminal.

Of course, the order that she be taken into custody—which was bad enough—does not mean that he communicated:

“Torment her. Put her in the hole and chain her to a chair, rendering her motionless.”

However, if that did occur, there are indications, perhaps only hints, that Wilson knew what was going on. He informed the lawyers on Nov. 17 that she was in a “holding area” and advised them, “I’m going to order her released.” Lang reports in her declaration that deputy marshals told her they were just doing what the judge wanted. After court hours, Lang says, they brought her up to a courtroom and said the judge wanted to talk with her (which did not occur), implying his awareness that more had taken place than her being expelled from the courtroom.

Just what Wilson knew of and knowingly caused must be looked into, not ignored. Ninth Circuit Chief Judge Mary Murguia, acting pursuant to 28 U.S. Code §351, should investigate Lang’s allegations and, if they are borne out, refer the matter, in accordance with §352, to the Ninth Circuit’s Judicial Council, or appoint a special committee to investigate, under §353.

The upshot of proceedings could be exoneration, a censure or reprimand by the Judicial Council, a suggestion to the 81-year-old judge that he retire, or (which seems improbable) impeachment and removal.

PPEARING BELOW ARE PARAGRAPHS from Lang’s Jan. 10, 2022 declaration under penalty of perjury that accompanied her lawyers’ response to an order to show cause re contempt. The paragraph numbers have been removed and the spelling of “marshal” has been corrected. The words “albeit improperly” are bracketed in the original.

Describing her removal from Courtroom 10A, at 350 West First Street, and the booking of her, Lang says:

Physically restrained in cuffs and flanked by several fully armed male US Marshals, I was removed from the courtroom without any of my personal belongings, walked down the public hallways of the federal courthouse in plain view of other attorneys, my colleagues, and judicial staff, and then taken in and down the public elevator bank to the Cellblock floor used for criminal defendants. At the Cellblock floor, I was informed I had to go through the booking process. The US Marshals led me to sit down on a chair while they questioned me to obtain personal information and then typed in my answers into then computer system. After I was seated, the US Marshals applied additional physical restraints to my body, restraints that are universally known in criminal law as “hogtie” or “hobble” restraints. I repeatedly asked why physical restraints were being used at all and was informed by the US Marshals that they were following Judge Wilson’s orders and that this was standard practice to protect prisoners from falling and hurting themselves. I was also repeatedly told by the Marshals to stop crying and do as I was told if I wanted to get back to my family that night and not have to sleepover in the prison cell. Leg irons were applied in addition to the handcuffs, with a waist chain connecting my irons to the handcuffs. Another chain was wrapped around my chest near my collar bone and locked behind the chair I was sitting in, pinning my shoulders and upper body to the back of chair presumably to prevent me from falling forward out of the chair onto my face. I was imprisoned for hours, without access to my physical liberties, without any sense of time, without any indication of what would happen next to me, without any indication of what she had been arrested for, without any idea how long I would be imprisoned for….The only physical movement available to me was to close my eyes and cry into my face mask. Even when locked in the prison cell. I was chained to a chair in hobble restraints….

After being [albeit improperly] arrested, taken into custody and escorted out of the courtroom this way, I asked the Marshals to tell me the grounds for my arrest. They said, “they didn’t know.” I said that I was a lawyer and officer of this court and that I must be advised of my rights, the charges against me, and told why handcuffs and restraints were necessary. They just kept answering “we do whatever the judge tells us to do.” I kept asking the Marshals what was happening, and I asked them to give me some clue as to what to expect based on when they have seen this happen to other lawyers. The Marshals, each of them, told me they had never seen this happen to a lawyer before.

Telling of being taken to, and confined in, the basement cell, Lang recounts:

When being placed in the metal leg cuffs, I was unable to walk independently, so the Marshals removed my shoes and forced me to walk barefoot, flanked by officers holding my shoulders on each side, taking “mini-steps” ten floors down to where the Courthouse has its criminal prison cells, and I stumbled several times. Once inside the isolated locked prison cell, I was ordered to sit down near a feces filled urinal in a cell that was littered with dirt and trash. My physical restraints were not removed after being placed in the locked prison cell. I remained cuffed in “hogtie” fashion, inside the isolated and freezing locked prison cell for hours….

The lawyer tells of her eventual release:

At some point in time, two new Marshals came down to my cell and informed me the Judge was going to talk to me. I was painfully forced to do the humiliating shackled-shuffle back up to his courtroom escorted by these two new Marshals….I saw that day had turned to night as they led me back up to the tenth floor. I was put in an empty courtroom, still cuffed, and guarded by Marshals, and told to wait for the judge. The judge ultimately never came out to talk to me. I was eventually led back into the original trial courtroom to gather my purse, at which point I realized that Court had adjourned. The Marshals told me that I needed to get my purse and immediately leave and that my co-counsel would be able to tell me later, after I left the building, how the day ended.

She notes that “the federal courthouse having long been closed, all the other judges and general courthouse personnel gone for the day, and my vehicle locked inside a closed parking lot across the street, leaving me alone and stranded at night in downtown Los Angeles.” Elaborating on her ordeal, Lang says:

After being released from prison. I researched that it is illegal in the USA for prisoners to be permanently shackled with leg cuffs even when they are held in their cells. With such a long-term use of leg shackles, I was left with pressure marks on my ankles. This treatment of me as a prisoner was cruel and unusual punishment. I suffer from Von Willebrand Disease, a serious blood disease that I was born with that can be life-threatening. The metal medical bracelet I wear indicating I suffer from this disease was removed by the marshals when they handcuffed me. The full-harness combination applied to me was excruciatingly painful. I experienced cuts to my waists and ankles and felt the loss of circulation almost causing me to faint while hogtied in the locked cell. I know from my time working the District Attorney’s office, that handcuffs are meant as a temporary restraint, only to be used in the narrowest of situations, but they were used liberally on me and not temporarily. Indeed, the key to my metal wrist handcuffs was lost for over an hour when the officers changed shifts during my incarceration.

F ALL THIS IS A LIE, Lang should be prosecuted for perjury, and by virtue of a conviction, if upheld on appeal, disbarment by the State Bar of California and the federal courts would be automatic. The thought that an attorney would fabricate such a tale of horror is unlikely, quite unlikely. Yet, her account does have yet to be probed.

Assuming it is validated, is it noteworthy that Lang is a female, and, judging from an online photo of her, not a hefty one, with there being no arguable prospect of her being able to overpower deputy marshals if not placed in restraints? In our view, this is but of scant significance. If the alleged contemnor had been a 237-pound muscular male, it would remain that the courtroom conduct in issue—excessive advocacy—did not entail violence or a threat of violence. Lang apparently raised her voice and was angry and belligerent and interrupted opposing counsel’s closing argument. Even if ejectment was justified, the use of metal restraints on a non-combative person, followed by hours of incarceration under hellish circumstances, would be deplorable whatever the lawyer’s gender or physique.

The first steps must be taken by Murguia and by Estrada. Given the egregiousness of the misconduct Lang asserts, action should be instituted promptly.

Facts must be uncovered, with relevant facts not overlooked or whitewashed.

A failure on the part of federal authorities to ascertain what occurred on Nov. 17, 2021, would constitute dereliction, and a failure to impose consequences, and severe ones, if Lang was indeed caused the physical pain and dehumanization she describes would be unpardonable.

NE FURTHER MATTER warranting attention is the refusal of Wilson to recuse himself when requested to do so by Lang’s counsel after the judge on Dec. 27, 2021, issued an order to show cause. The OSC began:

“The Court hereby orders Ms. Marina Lang, counsel for Plaintiff, to show cause why she should not be found in civil contempt for her conduct…on November 17, 2021. At the trial, the Court cited Ms. Lang for contempt and had her removed from the courtroom due to her repealed outbursts and inappropriate comments. As a result, this Court was forced to grant Defendants’ motion for a new trial.”

To avoid confusion, we note that the terms “criminal contempt” and “civil contempt” are used one way under federal law and differently under California law. If a person commits contemptuous conduct in the immediate presence of the judge in either state or federal court (direct contempt), it is summarily punishable, provided that an order sets forth the facts. In federal court, it’s called “criminal contempt”; in California, it’s termed “punitive contempt” and, though it is “quasi-criminal” in nature, it is classed as a “civil contempt.” (A criminal contempt in California is one that is prosecuted as a misdemeanor.)

So, Wilson on Nov. 17, 2021, proclaimed Lang to be in “criminal contempt”—although, by his later admission, he had not observed the procedural requisites—and she was punished. On Dec. 27, he ordered her to show cause why she should not be held in civil contempt—which includes imposition of a fine for a “compensatory” purpose—here, to compensate the defendant for the fees it paid its lawyer for being in court on Nov. 17.

Lang’s lawyers argued in their Jan. 10, 2022 response to the OSC:

“Judge Wilson must recuse himself from this contempt proceeding which calls for him to ‘judge his own actions’ regarding his unprecedented contempt sanction on November 17, 2021, including the arrest, shackling, and solitary confinement of Attorney Marina L. Lang, to vindicate the Court’s authority.”

Although the question of whether Lang should be ordered to reimburse the defendant for the fees it incurred does not directly implicate Wilson’s conduct on Nov. 17, 2022, his objectivity in dealing with Lang after that date might certainly be questioned.

In his order of Jan. 26, 2022, imposing a fine, he asserted that there was nothing personal in what he did in November. The judge said that the only conduct on Lang’s part “that even potentially raises the sort of personal affront that could warrant recusal or disqualification was Ms. Lang’s remark, ‘It’s so hard being a woman’ ” which “could be taken to suggest that the Court was sexist,” adding:

“[H]owever, even assuming that was the intended implication, this single comment is still far from the level of personal insult that has warranted disqualification in other cases.”

Lang may not have personally insulted Wilson at the trial but her opposition to the OSC and her declaration accuse him of having orchestrated monstrous actions against her. The opposition asserts that Wilson’s “extraordinary and unwarranted arrest and incarceration of Attorney Lang is outrageous,” charges him with having caused Lang’s incarceration “without due process and without having committed a crime,” and asserts that he committed conduct that “radically departs from well-established principles of contempt and exceeds the limits on judicial authority.”

While an attorney cannot by insulting a judge force that judge’s recusal, this is not an instance of attempting to disqualify through provocation. Discernible from the opposition is that, by virtue of the judge’s own actions, he and Lang are potential adversaries in future proceedings and, under the circumstances, this is not a baseless threat.

Wilson is accused by Lang of judicial misconduct. This presages the filing of a protest to his actions in an effort to trigger disciplinary proceedings.

Too, the opposition contends:

“The Court did not have sweeping jurisdiction to arrest, physically restrain, shackle, and imprison Attorney Lang in an isolated cell, solitarily confining her indefinitely while she awaited news of her uncertain fate.”

If there was an absence of jurisdiction—which might well be argued—judicial immunity to a lawsuit does not exist, as set forth in a 1991 U.S. Supreme Court decision involving a then-Los Angeles Superior Court judge, Mireles v. Waco.

A federal judge is obliged under 28 U.S.C.A. §455(a) to “disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.” Wilson’s impartiality, under these circumstances, might reasonably be questioned.

This was not raised in Lang’s appeal from the contempt fine. The general rule is that a refusal of a judge to recuse himself or herself may be challenged only by a writ petition, though the Seventh Circuit has held recently that it may be brought up on appeal. (Had Wilson’s non-recusal been raised in the Ninth Circuit appeal, the general rule might have been deemed inapplicable given that there was no opportunity to seek a writ; the judge denied the recusal request in the same order in which he imposed the monetary penalty for civil contempt.)

MPROPRIETY IN WILSON’S refusal to recuse himself is reflected in his use of the 1/26/22 order imposing a civil sanction as a vehicle for rationalizing, and distorting, the nature of his 11/17/21 actions.

As noted, Wilson represented in the 2022 civil contempt order that he had not “actually” found Lang in contempt but had merely directed her removal from the courtroom. That was false. He told Lang on Nov. 17, 2021: “You are in contempt.” He told deputy marshals: “She’s in contempt of court.” He recited in the OSC that “the Court cited Ms. Lang for contempt.”

Also, he said in the 2022 order:

“But, as this Court has frequently noted, it sought to avoid imposing a punitive measure under the Court’s criminal contempt authority….It was for this reason that the Court did not order to her be booked and processed into custody, as it would have if it had summarily punished Ms. Lang for criminal contempt.”

Yet, he did order—expressly—that she be taken into custody. That, foreseeably if not inevitably, entailed a booking, which did, Lang’s declaration states, occur.

Wilson’s defensive utterances would foreseeably have influenced the Ninth Circuit’s response to any forthcoming appeal from the order—as those utterances did, with the panel alluding in a footnote to a “period of temporary confinement” of Lang which, if Lang’s account is true, trivializes, grossly, the circumstances of her captivity.

The handing-over of the matter to another judge might well have resulted in a consideration of whether to impose a monetary sanction, under an inherent power of federal judges recognized by the U.S. Supreme Court, rather than bringing into play the contempt power.

Whether Lang was, in essence, chained in a downtown Los Angeles dungeon, has yet to be established. If it is found that she was, the degree of Wilson’s culpability would need to be assessed. What is clear at this point is Wilson’s duplicity in seeking to vindicate his actions of Nov. 17, 2021. He’s one slippery hombre.