Chief Judge of Ninth Circuit Appears Derelict in Her Duties

Friday, May 31, 2024

Page 8

EDITORIAL

Chief Judge of Ninth Circuit Appears Derelict in Her Duties

oday’s “End of the Month” feature recites—as it has in each report over the past year-and-a-quarter—lack of action in response to a lawyer’s account, under penalty of perjury, of barbarous treatment after U.S. District Court Judge Stephen V. Wilson of the Central District of California proclaimed her to be in contempt and ordered that she be taken into custody. And yet, on May 1, the Judicial Council of the Ninth U.S. Circuit Court of Appeals reprimanded a judge of the Southern District of California for conduct that pales in comparison to what Wilson is accused of having done.

Ninth Circuit Chief Judge Mary Murguia has some explaining to do. There is apparent dereliction on her part in failing to instigate an investigation, as a circuit’s chief judge is statutorily charged with doing, in response to a credible allegation of misconduct on the part of a judicial officer in the circuit. But nobody—not the Judicial Council, not Congress, not the metropolitan dailies or television news operations—is asking the relevant question:

Why has Murguia failed to move in the matter of Wilson?

estlake Village attorney Marina Lang mouthed off in Wilson’s courtroom on Nov. 17, 2021. Wilson told Lang: “You are in contempt” and instructed a deputy marshal:

“Take Ms. Lang in custody. She’s in contempt of court.”

If what that lawyer swears happened did, she was not only handcuffed, but her legs were manacled and she was forced to hobble down the courthouse corridor in view of other lawyers, then clad for hours in metal restraints in a malodorous basement cell, unable even to scratch her nose.

She 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.”

Though short of torture, those measures, if accurately portrayed, were extreme, indeed shocking.

Lang maintains that a deputy marshal told her early in her ordeal that what was being done was what the judge wanted done. A comment by Wilson in open court, later, reflects at least an awareness that she remained in custody; he told lawyers that Lang was in a “holding area” and related, “I’m going to order her released.”

The extent of his cognizance of what was transpiring is what needs to be probed.

By the time Lang was actually freed, her declaration says, it was dark and the lot where her car was parked was locked.

ilson is, if nothing else, a liar. On Jan. 26, 2022, in imposing a $3,510 civil contempt fine on Lang, he proclaimed that on Nov. 17, 2021, he had not “actually” found Lang in criminal contempt but merely had her removed from the courtroom. Nonsense. He said she was in contempt. He directed that she be taken into custody.

Wilson said in his written order in connection with the civil contempt:

“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.”

Lang’s declaration says she was taken into custody, booked, and imprisoned

Disingenuously and unpersuasively, Wilson said in a footnote that although he used the word “contempt” on Nov. 17, 2021, there was “not an actual summary contempt adjudication” because 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.

His having procedurally botched his effort is hardly exonerating.

his newspaper uncovered Lang’s allegations in the course of preparing a news story on a Jan. 24, 2022 Ninth Circuit memorandum opinion affirming the civil contempt adjudication. Lang’s account of the degrading treatment of her in 2021 was irrelevant to the propriety of the later-imposed fine, and the panel observed 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.”

The matter of the incarceration was reported here in a news story on Jan. 26, followed by a Feb. 1 editorial urging a probe. The following day, an email was sent to Murguia, with a hyperlink to the editorial, urging an investigation.

Although no written complaint about Wilson was filed with the clerk of the Ninth Circuit, pursuant to 28 U.S. Code §351(a), an alternative in subd. (b) provides:

“In the interests of the effective and expeditious administration of the business of the courts and on the basis of information available to the chief judge of the circuit, the chief judge may, by written order stating reasons therefor, identify a complaint for purposes of this chapter and thereby dispense with filing of a written complaint.”

urguia acted pursuant to subd. (b) after information was provided to her by District Court Judge Dana M. Sabraw of the Southern District of California concerning allegations of misconduct on the part of a colleague of his, Roger T. Benitez, reported in newspapers.

On Feb. 28, 2023, the Ninth Circuit issued a news release saying, simply:

“SAN FRANCISCO - All inquiries related to allegations of judicial misconduct concerning District Judge Roger T. Benitez from the Southern District of California should refer to the attached order regarding Judicial Conduct and Disability Complaint Number 23-90037.”

In an order bearing the same date, Murguia said that allegations against Benitez “were related to court proceedings that took place on February 13, 2023, including a revocation of supervised release proceeding during which Judge Benitez ordered the handcuffing of the thirteen-year-old daughter of a defendant.”

Murguia, after taking a preliminary look at the matter, appointed a committee to investigate, and that committee sent its findings to the Judicial Council. That body said May 1 that at a sentencing hearing for Mario Puente based on violating the terms of probation, the defendant expressed a concern that his daughter was following in his footsteps, smoking marijuana and associating with the wrong element. The Judicial Council’s order recites:

At that time, Judge Benitez asked a Deputy United States Marshal, “[y]ou got cuffs? Do you?” Judge Benitez then asked, “[w]hat’s that young lady’s name?” and requested that Mr. Puente’s daughter “com[e] up for just a second and stand next to that lawyer over there.” After Mr. Puente’s daughter approached, Judge Benitez told the Deputy Marshal “[d]o me a favor. Put cuffs on her.” The Deputy Marshal handcuffed Mr. Puente’s daughter.

Judge Benitez then instructed the Deputy Marshal, “[n]ow, would you mind escorting her and putting her over there in the jury box for me for just a minute.” Once Mr. Puente’s daughter was placed in the jury box, where her father sat, Judge Benitez stated, “[that’s good enough.”

After an uncertain length of time, ranging somewhere from a few seconds to four minutes, Judge Benitez told the Deputy Marshal, “Okay. You can take the cuffs off.” The Deputy Marshal removed the handcuffs.

The judge briefly questioned, then lectured the girl.

At most, she was handcuffed for four minutes. Lang tells of having been shackled, to the point of immobilization, for hours.

The extent of Wilson’s knowledge of what Lang says she was forced to endure at the hands of deputy marshals should not go unprobed. But it has been. The appearance is that, for whatever reason, Murguia is, through inaction, acting as Wilson’s protector.

That calls into question her fitness to serve as chief judge.