United States v. Marcellus Aaron Elder

309 F.3d 519 UNITED STATES of America, Plaintiff-Appellee, v. Marcellus Aaron ELDER, Defendant-Appellant. No. 00-10143. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 5, 2001. Filed June 7, 2002. Robert V. Vallandigham, Jr., San Francisco, CA, for the appellant. Patrick D. Robbins, Assistant U.S. Attorney, San Francisco, CA, for the appellee. Appeal from the United States District Court for the Northern District of California; William H. Orrick, Jr., District Judge, Presiding. Before: PREGERSON, FERGUSON and HAWKINS, Circuit Judges. AMENDED OPINION * MICHAEL DALY HAWKINS, Circuit Judge. 1 Appellant Maurice Elder ("Elder") seeks review of his conviction and sentence on cocaine possession and distribution charges. With respect to his conviction, Elder argues that he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal. A careful examination of the record, however, reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges. 1 Over much of the trial and immediately prior to her removal,…

AMENDED OPINION *

Appellant Maurice Elder (“Elder”) seeks review of his conviction and sentence on cocaine possession and distribution charges. With respect to his conviction, Elder argues that he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal. A careful examination of the record, however, reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges. 1 Over much of the trial and immediately prior to her- removal, counsel was repeatedly warned about yelling at the court and making sarcastic remarks.

Elder argues that the sight of his lawyer being led off in handcuffs must have prejudiced the jury against him. The record is clear, however, that the district court did not order the handcuffing. When co-counsel for Elder indicated an unwillingness to proceed and asked that the jury be excused, the court complied and granted a one-hour recess. Following the recess, lead counsel returned to the courtroom and the court effectively cleared the air by acknowledging that the objection she had made was factually…

dissenting:

This case is remarkable for at least three reasons, and for these reasons, I must dissent.

First, Elder’s trial counsel, Maureen Kallins (“Kallins”), was physically brutalized in front of the jury for correctly insisting that the District Judge had issued a prior evidentiary ruling in her client’s favor. However, the prosecutor who violated the prior ruling was not even reprimanded.

Second, in explaining the treatment of Kallins, the District Judge stated before the jury that she deserved what she got because she was “trashing the United States.” In other words, she was unpatriotic.

Third, the majority cites to a California state court decision as support that defense counsel is a bad person, with a history of “surly, disruptive, and contemptuous behavior.” Majority Op. at 520. In doing so, the majority ignores the fact that the criticism of defense counsel throughout her career may be caused in part by anti-feminism within the legal community. 1 In particular, some in the legal profession may be more offended by aggressive and combative litigation tactics from a female attorney than from her male counterparts. 2 Rather than recognizing this possibility or ignoring…