Carranza v. Edmund G. Brown, Jr.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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SELVIN O. CARRANZA, CASE NO. 14cv773-JO-AGS

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12 Plaintiff, ORDER HOLDING

v. ATTORNEY JANINE K.

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EDMUND G. BROWN, JR., et. al., JEFFERY IN CONTEMPT

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Defendants.

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17 On February 2, 2023, the Court held attorney Janine K. Jeffery in criminal contempt,

18 imposed sanctions of $4,000, and informed her that she would be referred to the California

19 state bar. In accordance with Federal Rule of Criminal Procedure Rule 42(b), the below

20 recites the facts relevant to the contempt finding and certifies that the undersigned saw and

21 heard the conduct that constitutes contempt of court.

22 I. LEGAL STANDARD

23 A court has authority to hold an individual in criminal contempt for

24 “[m]isbehavior . . . in its presence or so near thereto as to obstruct the administration of

25 justice.” See 18 U.S.C. § 401. Misbehavior obstructs the administration of justice when it

26 is willful and “actually obstruct[s] the district judge in the performance of judicial duty.”

27 In re McConnell, 370 U.S. 230, 234 (1962) (cleaned up); see also United States v. Powers,

28 629 F.2d 619, 627 (9th Cir. 1980). Such misbehavior includes the refusal to comply with

1 a court’s orders. See Maness v. Meyers, 419 U.S. 449, 458 (1975); see also In re Gustafson,

2 650 F.2d 1017, 1020 (9th Cir. 1981) (“Where . . . an attorney disobeys the court’s rulings

3 and instructions, he or she commits ‘misbehavior’ within the meaning of section 401(1)”).

4 “Persons who make private determinations of the law and refuse to obey an order generally

5 risk criminal contempt even if the order is ultimately ruled incorrect.” Maness, 419 U.S.

6 at 458. “This principle is especially applicable to orders issued during trial.” See id. at

7 459–60.

8 Although criminal contempt is generally imposed after notice and prosecution, a

9 court may summarily hold an individual in criminal contempt under the appropriate

10 circumstances. Federal Rule of Criminal Procedure 42(b) provides that “the court . . . may

11 summarily punish a person who commits criminal contempt in its presence if the judge saw

12 or heard the contemptuous conduct and so certifies.” Fed. R. Crim. P. 42(b). There are

13 two prerequisites to summary criminal contempt proceedings under Ninth Circuit law:

14 “(1) the need to dispel an immediate threat to the court; and (2) contempt committed in the

15 court’s presence, proof of which does not require reliance on facts extrinsic to the

16 proceedings.” United States v. Glass, 361 F.3d 580, 586 (9th Cir. 2004). Such proceedings

17 are “reserved for exceptional circumstances, such as acts threatening the judge or

18 disrupting a hearing or obstructing court proceedings.” Harris v. United States, 382 U.S.

19 162, 164–65 (1965); United States v. Flynt, 756 F.2d 1352, 1363 (9th Cir. 1985) (“the need

20 to overcome obstructions to ongoing proceedings warrants a procedure whereby a trial

21 judge may, in a summary fashion, remedy a breakdown in the orderly operation of the

22 judicial system”).

23 II. DISCUSSION

24 Trial in this prisoner § 1983 action was held in the presence of a jury from January

25 23, 2023, to February 2, 2023. Plaintiff brought claims against over twenty Defendants,

26 alleging various violations of his constitutional rights. The majority of these Defendants

27 were represented by the California Attorney General’s Office with the exception of three

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1 Defendants represented by private counsel. Janine K. Jeffery (“Attorney Jeffery”)

2 represented one of these three Defendants, Sergeant LoriAnne Tillman.

3 1. Attorney Jeffery’s Disruptive Behavior and Disregard of Court Orders Leading

4 Up to the Contemptuous Act

5 Throughout trial in this matter, Attorney Jeffery repeatedly disobeyed the Court’s

6 orders and disrupted the Court’s ability to efficiently manage the proceedings. The Court

7 saw and heard the conduct set forth below.

8 On the first day of trial prior to jury voir dire, the Court instructed the parties that it

9 would not entertain speaking objections in front of the jury, and that counsel should state

10 a single-word basis for objections such as “Hearsay” or “Foundation,” after which the

11 Court would invite further elaboration at a sidebar, if necessary. See Ex. 1, 1/23/2023 Trial

12 Tr. at 7:12–8:10. After the Court had ruled and moved on to other issues, Attorney Jeffery

13 objected to the Court’s ruling limiting the parties to speaking objections in front of the jury.

14 See id. at 14:20–15:10. The Court overruled the objection, and ordered Attorney Jeffery

15 to submit any objections to the Court’s management of the trial in writing. See id. at

16 15:11–13. Attorney Jeffery nonetheless continued to argue with the Court regarding its

17 ruling, despite the Court’s multiple attempts to secure Attorney Jeffery’s compliance with

18 the Court’s orders. See id. at 15:14–17:2. Even after being instructed to sit down, Attorney

19 Jeffery did not do so and continued to argue. See id. The Court then stated, “I've been

20 very clear in my instructions. I expect you to abide by those instructions.” Id. at 16:16–

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22 On several more occasions throughout trial, Attorney Jeffery disregarded the Court’s

23 instructions to cease argument after a ruling had been made. At the end of the first day of

24 trial, the Court issued instructions to the parties prior to going off of the record. In doing

25 so, the Court cautioned Attorney Jeffery that her comment during opening statements that

26 Plaintiff, an inmate with undisputed mental health conditions, “likes getting therapy

27 because he likes to talk” was disrespectful, even if not intentioned that way, and told her

28 to “please be careful about that.” Id. at 215:12–20. After the undersigned had gotten up

1 to leave the bench, Attorney Jeffery demanded to be heard and stated that it was “unfair of

2 [the Court] to make a comment like that, and then leave the bench without me responding.”

3 Id. at 216:8–9. The Court invited Attorney Jeffery to submit her objections in writing and,

4 by thanking counsel and proceeding to leave the bench, indicated that the Court was not

5 inviting further argument. See id. at 216:11–12. Attorney Jeffery disregarded the Court’s

6 instructions and continued to make argument, raising her voice, and calling after the

7 undersigned as the undersigned left the bench and exited the courtroom. See id. at 216:13–

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9 At the beginning of the second day of trial, outside the presence of the jury, the Court

10 addressed Attorney Jeffery’s disregard of the Court’s instructions the prior day. The Court

11 stated as follows:

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So Counsel, Ms. Jeffery, I do appreciate that you are zealously

13 advocating for your client. You -- and you should continue to do

so. You should continue to make the record. You’ve raised

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many valid objections with valid legal grounds that I have

15 sustained. However, when this Court, which has the authority to

manage the trial proceedings, when this Court says that argument

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will not be taken on a specific matter, that the Court has had

17 sufficient argument on a specific matter or that you should

submit argument in writing, that is a court order, and I expect you

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to comply with that court order.

19 Yesterday you disobeyed the court order, and I want to be clear.

20 Going forward in the future then when the Court makes an order

of that nature, it is something that I expect full compliance with.

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22 Ex. 2, 1/24/2023 Tr. Transcript at 221:1–15. Attorney Jeffery responded by accusing the

23 Court of treating her disrespectfully and of harboring a bias against Defendants. See id. at

24 221:18–222:13.

25 Despite the Court’s above admonition, Attorney Jeffery continued to flout the

26 Court’s instructions. On the third day of trial, she again continued to make argument

27 despite the Court’s clear instruction to wait for sidebar because the jury was being brought

28 in. Ex. 3, 1/25/2023 Tr. Transcript at 477:24–478:23. When the attorneys came to sidebar,

1 the Court again warned Attorney Jeffery that she was “disregarding court orders” and

2 explicitly warned that “contempt and sanctions” might be necessary if the behavior

3 continued. See id. at 480:7–481:16. Attorney Jeffery again accused the Court of bias. See

4 id. at 481:18–19 (“I would actually like to put on the record that you have been incredibly

5 biased toward the Plaintiff . . . when the Plaintiff’s counsel introduced themselves this

6 morning, you smiled and nodded.”). The Court instructed her to address any such broader

7 concerns on the docket in written briefing so that the Court could focus on the evidentiary

8 issues at hand and proceed with the trial. See id. at 481:18–482:9.

9 Attorney Jeffery disobeyed this last order on at least two additional occasions by

10 responding to the Court’s trial-related evidentiary rulings with accusations of the Court’s

11 bias against Defendants. One of these instances occurred on the fifth day of trial during a

12 sidebar concerning whether Defendants had opened the door to certain testimony on cross-

13 examination. Attorney Jeffery responded to the Court’s ruling by again arguing that the

14 Court was “unfairly prejudicing the defense.” See Ex. 4, 1/27/2023 Tr. Transcript at

15 1108:15–19. The Court responded by cautioning her: “I’ve instructed you before and I’m

16 instructing you again that you can make those objections in writing. We’re not going to

17 take time at sidebar to address your concerns about the general prejudice of the Court.” Id.

18 at 1108:20–24. The second instance was triggered by the Court’s ruling under Federal

19 Rule of Evidence 403 that during closing arguments, the parties were not to refer to the

20 fact that Plaintiff had utilized homophobic slurs. Ex. 5, 2/1/2023 Tr. Transcript at 1932:12–

21 1933:21. Attorney Jeffery again responded to this ruling by accusing the Court of bias.

22 See id. at 1933:24–1937:25 (“throughout this litigation, you have been an advocate for the

23 Plaintiff the minute I’ve walked into the courtroom”). The Court again cautioned her about

24 responding to the Court’s rulings with uncontrolled and disrespectful accusations rather

25 than legal argument about the substantive matter at issue. See id. 1935:16–18 (“You are

26 able to make your record, but you’re not able to do that in a way that is disrespectful and

27 makes ad hominem attacks on the Court”; “If you have any other explanation for how this

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1 could be relevant and probative . . . I will hear you. You’re going to limit your argument

2 to that legal point . . . I’ve warned you about contempt”).

3 2. Attorney Jeffery’s Contemptuous Act in Front of the Jury

4 On February 2, 2023, the Court initiated summary criminal contempt proceedings

5 against Attorney Jeffery for her willful violation of the Court’s order not to refer to the fact

6 that Plaintiff had used certain homophobic slurs in front of the jury. The Court saw and

7 heard the below acts that led up to and constituted the contemptuous act.

8 As mentioned above, on February 1, 2023, the Court found that the probative value

9 of Plaintiff’s use of certain homophobic slurs was substantially outweighed by unfair

10 prejudice pursuant to Federal Rule of Evidence 403. The very next day, on February 2,

11 2023, Attorney Jeffery violated this order during her closing argument. First, Attorney

12 Jeffery argued to the jury that Plaintiff “used an extremely derogatory term toward gay

13 people during group, and that’s in the record. You’ve heard it.” See Ex. 6, 2/2/2023 Tr.

14 Transcript 2087:22–24. She then proceeded to display a document to the jury containing

15 the account of Plaintiff using a homophobic slur. See Trial Ex. 5. In the copy shown to

16 the jury, she had highlighted the sentence containing Plaintiff’s use of the slur. Attorney

17 Jeffery then proceeded to read the sentence out loud to the jury, up to the slur itself. See

18 Ex. 6 at 2088:4–6. When she got to the term “f______,” she pointed her finger at the term

19 on the projector while telling the jury, “I won’t repeat it.” See id. at 2088:6. The Court

20 then instructed Attorney Jeffery to take the document off of the screen and ordered a recess

21 so that the Court could consider what processes were necessary to enforce Attorney

22 Jeffery’s compliance with the Court’s orders for the remainder of trial. See id. at 2088:7–

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24 After the recess, the Court found that Attorney Jeffery had violated the Court’s order

25 instructing counsel not to refer to the fact that Plaintiff had used homophobic slurs. See id.

26 at 2090:7–2091:18. The Court found that––although Attorney Jeffery did not say the slur

27 outright––her acts of highlighting the slur, pointing to it, and verbally drawing the jury’s

28 attention to it were, together, a clear violation of the Court’s order not to refer to the fact

1 that Plaintiff used homophobic slurs. See id. The Court afforded Attorney Jeffrey an

2 opportunity to respond but did not find credible Attorney Jeffrey’s explanation that she

3 misunderstood the Court’s order and “did not intend to focus on [the issue of homophobic

4 slurs], but it’s a very significant issue, because it goes to the impeachment . . . . ” See id.

5 at 2091:19–2092:1. Instead, the Court found that the “order not to refer to that fact was

6 clear,” and she had intentionally “violated that order [the] same as if [she] had actually said

7 the word.” See id. at 2092:21–2093:2.

8 3. The Court’s Finding That a Summary Criminal Contempt Proceeding Was

9 Necessary

10 Based on the events above, the Court held Attorney Jeffery in contempt of Court and

11 imposed a $4,000 penalty. The Court did so via the summary criminal contempt procedure

12 outlined in Federal Rule of Criminal Procedure 42(b) because, (1) it found the need to

13 dispel an immediate threat to the court proceedings, and (2) the contempt was committed

14 in the Court’s presence before the conclusion of trial. See Glass, 361 F.3d at 586.

15 Attorney Jeffery’s conduct posed an immediate threat to the Court’s ability to control

16 the trial. First, Attorney Jeffery intentionally violated an order not to highlight certain

17 prejudicial information to the jury less than 24 hours after the Court had issued it. Pounders

18 v. Watson, 521 U.S. 982, 990–91 (1997) (summary contempt appropriate when lawyer

19 violated court order by making comments to the jury that he had been admonished not to

20 make). She did so in the presence of the jury, endangering the fairness of the proceedings.

21 As the Court had explained to the parties, prevention of unfair prejudice to Plaintiff was

22 the reason for the Court’s ruling in the first place.

23 Moreover, Attorney Jeffery’s repeated violations of Court orders throughout trial

24 demonstrated that lesser measures, such as warnings, likely would not have been effective

25 in enforcing compliance during the remainder of the trial.1 As recited above, Attorney

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1 The remainder of trial consisted of closing arguments and a possible punitive damages phase of

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1 Jeffery repeatedly violated the Court’s orders at least 5 times in the course of a 9-day trial.

2 She did so despite multiple explicit warnings from the Court that it viewed her conduct as

3 contemptuous violations of Court orders. See, e.g., Ex. 3 at 480:7–481:16; Ex. 5 at 1937:5.

4 In addition, Attorney Jeffery demonstrated a palpable contempt for the Court’s

5 authority, further indicating that she was unlikely to comply with its orders. For instance,

6 during the attorney conference at which the Court discussed its Rule 403 ruling regarding

7 homophobic slurs, Attorney Jeffery questioned the Court’s inherent authority to control the

8 trial proceedings in a mocking, derisive tone, stating, “what are you controlling, Your

9 Honor, other than Defense’s ability, again, to defend their clients.” See Ex. 5 at 1934:22–

10 24. She frequently spoke to the Court in an openly hostile, mocking, and sarcastic tone,

11 further displaying her contempt for the Court’s authority. See, e.g., id. at 1937:13–14

12 (“Counsel, you’re going to control your tone. That is very disrespectful.”). These

13 behaviors not only disrupted testimony, sidebar discussions, and the Court’s ability to

14 efficiently manage the trial, but also left the Court with no confidence that a further warning

15 would be effective in controlling Attorney Jeffery’s courtroom behavior. Based on the

16 Court’s first-hand perception of her misconduct throughout trial, it not only concluded that

17 Attorney Jeffery’s contemptuous conduct was intentional but also that immediate measures

18 were necessary to protect the fairness of the remainder of the proceedings. Accordingly,

19 to ensure compliance with the Court’s orders for the remainder of trial, the Court held

20 Attorney Jeffery in contempt via summary proceedings.

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1 III. CONCLUSION AND ORDER

2 The above recites the facts relevant to the contempt finding and certifies that the

3 undersigned saw and heard the contemptuous conduct in accordance with Rule 42(b).

4 Attorney Jeffery will submit her $4,000 sanction payment by March 31, 2023. The check

5 shall be made payable to “John Morrill, Clerk of Court” and mailed to the following

6 address:

7 John Morrill, Clerk of the Court

United States District Court

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Southern District of California

9 333 West Broadway, Suite 420

San Diego, CA 92101

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IT IS SO ORDERED.

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13 Dated: February 7, 2023

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15 Hon. Jinsook Ohta

United States District Court

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