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Thursday, February 29, 2024


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Contempt Finding Based on Breach of Order That Was Not ‘Clear and Definite’ Vacated

Ninth Circuit Says Order Not to ‘Refer’ to Homophobic Slurs in Closing Argument Did Not Unambiguously Bar Projecting Document Containing Such Remarks


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday vacated a criminal contempt order by a District Court judge against a defense attorney who, during closing argument, projected a document that had been admitted into evidence which contained homophobic slurs by the plaintiff, despite the judge having ordered that the remarks not be referred to in closing argument.

That order, a three-judge panel held, in a memorandum opinion, was not “clear and definite,” vacating the contempt judgment by Judge Jinsook Ohta of the Southern District of California against attorney Janine K. Jeffery of the Woodland Hills firm of Reily & Jeffery. The opinion was signed by Judges Sandra S. Ikuta, and John B. Owens and by Senior Judge Richard C. Tallman.

Jeffery was counsel for Correctional Sergeant LoriAnne Tillman in a civil rights action brought under 42 U.S.C. §1983 by inmate Selvin O. Carranza. Carranza asserted failure-to-protect claims against more than 20 prison officers, including Tillman.

Sua Sponte Order

Jury trial commenced on Carranza’s claims on Jan. 23, 2023.

One of the claims against Tillman arose from a fight between Carranza and a fellow inmate. Carranza alleges that Tillman and others engineered the fight, “gladiator style,” then shot him to break it up.

Evidence was presented during the trial as to Carranza’s use of homophobic slurs which were introduced both to impeach the plaintiff and to provide support for Tillman’s argument that Carranza intentionally antagonized the other inmate.

During a jury instructions conference, Ohta, sua sponte, instructed counsel to not refer in closing arguments to the slurs, saying:

“For the reasons already explained by the Court, the Court is going to instruct that counsel not refer to those terms in closing argument. The Court is not proposing to strike any evidence or give any curative instructions. Those were not requested. You are certainly free to explain your narrative as to how Mr. Carranza was homophobic. How it led to the fight. You can even say that he goaded Mr.—Inmate Davis into a fight because he was gay because he didn’t like gay people to the extent that’s supported by the evidence.”

Ohta continued:

“However, the Court finds no additional probative value from repeating the slurs….At this point, it would just be gratuitous mention for prejudicial purposes only. It does not go toward—does not tend to make any fact more likely than another. So that concludes the discussion on this issue.”

Criminal Contempt

The next day, during closing argument, Jeffery showed on the courtroom projector a document previously admitted into evidence which contained the homophobic slurs, pointed out the words to the jury, but said that she would not repeat them.

Ohta told Jeffery to take the document off the screen.

After recess, the judge said he was inclined to find the lawyer in contempt. She responded:

“Your Honor, I did not understand the Court’s order to say that I was not allowed to use documents in evidence. What I understood the Court to have said was that I wasn’t allowed to refer to that phrase. The documents that have those phrases are critical to the defense of my client.”

Ohta summarily found that Jeffery had willfully violated the order to not refer to the homophobic slurs, held her in criminal contempt, fined her $4,000, and indicated that her misconduct would be referred to the State Bar of California.

On Feb. 7, 2023, Ohta entered a written order confirming that Jeffery was guilty of criminal contempt.

Jeffery appealed, challenging the contempt finding on multiple grounds.

The panel addressed whether Ohta erred in finding that Jeffery’s actions violated the order that all counsel refrain from repeating the homophobic words used by Carranza.

‘Clear and Definite’

The opinion noted that criminal contempt may only be imposed where there is a clear and definite order. Finding that the order in this case was lacking, the judges said:

“Though the Court had ordered ‘that counsel not refer to those terms in closing argument,’ the Court also specifically ruled that it was ‘not proposing to strike any evidence or give any curative instructions’ and that Jeffery was ‘certainly free to explain [her] narrative as to how Mr. Carranza was homophobic.’”

They continued:

“To the extent that the Court’s order included an instruction not to display the offensive term in an exhibit, that instruction was not clear and definite. The ambiguity in the Court’s instructions, coupled with its failure to either exclude the document or redact the offensive language from the exhibit it admitted into evidence, compels our conclusion.”

Under the circumstances presented, the court found that Jeffery could not be held accountable for violating the order when she did not “verbally repeat the homophobic slurs and thus did not violate the Court’s order to ‘not refer to [the offensive] terms in closing argument.’”

The case is Carranza v. Jeffery, 23-55180.

Carranza’s action against Tillman and others is still in progress, although the action has been dismissed as to some defendants.


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