A plaintiff's civil rights lawyer upset over repeated trial delays is asking for the assigned federal judge to be removed from her case, citing harsh treatment that caused her to cry in court.

Describing his courtroom as a "rough military bootcamp," Narine Mkrtchyan wants U.S. District Judge David O. Carter to transfer her excessive-force lawsuit against the Orange County Sheriff's Department to another judge.

Since declaring a mistrial in September 2021 after a jury couldn't reach a verdict, Carter has delayed the retrial three times over the objection of Mkrtchyan.

Mkrtchyan filed the disqualification motion after the last delay on June 13 pushed trial to December, writing that the judge "has shown impermissible bias and prejudice" in favor of Orange County by dooming her case through lost witnesses and prohibitive expenses. She also cited pre-trial rulings and Carter's alleged behavior in trial, which she said included belittling her in front of the jury and prohibiting her from taking breaks. She also described poor treatment by courtroom staff that included repeated interruptions by court reporters and perceived favoritism toward defense counsel.

A solo practitioner who was up against several attorneys from two law firms, Mkrtchyan said Carter's grueling schedule harmed her case and affected her physical health by keeping her at the courthouse until 8 p.m., and forcing her to return by 7 a.m. or 8 a.m. 

"If this is the price my client and I had to pay for bringing suit against the Orange County Sheriff's Department, known for its corruption and brutality, it is too heavy of a price," Mkrtchyan said in a declaration.

But defense attorneys said in their opposition briefs that Mkrtchyan offers no legal basis for Carter's recusal, and they dispute key claims such as her assertion that Carter several times resumed trial before she'd returned to the courtroom.

They also offer a different take on the judge's approach to Mkrtchyan, saying Carter was too accommodating of her unprofessionalism by showing her "far more solicitude than she had any right to expect."

"Any fair reading of the transcript reflects a patient jurist who—like everyone one else in the courtroom—was left astounded by Ms. Mkrtchyan's needlessly combative, and frankly contemptuous tone," according to a brief filed last week, which said Mkrtchyan's "written and spoken words are frankly unacceptable—on any level." 

An Unusual Motion

U.S. law calls for federal judges to recuse themselves if they have personal knowledge or a connection to a case, or if their impartiality "might reasonably be questioned." Carter's done so before: In February 2020, he voluntarily recused from a civil rights lawsuit filed by a school district employee in Laguna Beach, where he's lived for 50 years, citing his "personal friendship with many of the named parties."

But motions to disqualify federal judges aren't common, and they aren't typically granted, either.

The last known to have succeeded in the Central District of California was against Carter in 2019, brought by Jones Day attorneys representing three Orange County cities sued over a lack of regional homeless shelter. The attorneys cited comments Carter made in a related case, which U.S. District Judge James V. Selna concluded could cause a reasonable observer to conclude Carter is "not unbiased."

Since then, the Central District changed its process for recusal motions so that the motion is decided by the judge targeted for recusal, instead of assigned to a colleague. A hearing on Mkrtchyan's motion is scheduled for July 18 in Carter's Santa Ana courtroom.

In her declaration, Mkrtchyan said her status as an Armenian immigrant who speaks with a Russian accent has subjected her to bias from lawyers and judges in other cases, "but in this case it was stark and affected my ability to represent my client effectively."

Defense attorneys, however, say Mkrtchyan's behavior is an affront to the legal profession, and it isn't specific to Carter's courtroom: In a pre-trial hearing, she "unloaded" on U.S. Magistrate Judge Douglas McCormick as "an anti-female sexist of some type," according to their brief.

Mkrtchyan also brought a recusal motion against McCormick based on rulings she said were biased after he admonished her over a videotaped deposition in which she began cursing and shouting. A four-page order from McCormick described the deposition as "to put it mildly, a train wreck." 

And though not mentioned in the defense briefs, U.S. District Judge Otis Wright II in January cut short a Zoom hearing in another lawsuit brought by Mkrtchyan, citing "several unnecessary interruptions from plaintiff's counsel, Ms. Mkrtchyan," according to a Jan. 4 docket entry.

'All of You Look Healthy'

In the case before Carter, both Mkrtchyan's recusal motion and the opposition have as an exhibit a transcript of the judge discussing his concerns that Mkrtchyan's confrontational attitude with him in front of the jury was hurting her client.

In what Mkrtchyan's motion calls an "admonishment" that brought her "to tears in open court," she claimed the judge repeatedly said she should apologize to him in front of the jury. But he eventually relented, saying he realized making her do so would give "some intonation that you've done something wrong," according to Mkrtchyan.

"I just, quite frankly, don't know how to control and am unwilling to control the argument that takes place when you direct a comment to the court," Carter said, according to the transcript. "You can be caustic if you want to. You can be confrontational with me. I don't mind that during the recess. I do mind that in front of the jury."

Mkrtchyan told Carter she agreed "wholeheartedly at this point that I might have crossed the line" and described herself as a "very, very aggressive attorney." She also said Carter is "a judge who has been fair to us, frankly" and said she never intends disrespect "especially, first of all, just fundamentally and morally speaking, a man of your age, you know."

Carter offered to declare a mistrial, but Mkrtchyan declined. Defense lawyers then asked for one, but Carter declined.

The judge addressed complaints about long days during the same discussion, telling the attorneys: "I understand everybody needs food, but all of you look healthy. I'm joking with you." He added, "The same hours that you're keeping, I'm keeping."

Carter ended the discussion about 5 p.m., saying he wanted the attorneys to "go home and get rest," but he then ordered them to return at 7 p.m. for an "informal" session to discuss "what happens next without me baby-sitting you."

There's no transcript of that discussion because a court reporter was not present.

Defense lawyers cited Carter's comment about the necessity of food when disputing Mkrtchyan's contention that she was denied food and rest, writing that "nothing like this happened—a point the court itself made when it stated an understanding that everyone needs food." They also said case law establishes that a judge's ordinary courtroom efforts—"even a stern and short-tempered judge's"—can't be evidence of bias.

"Therefore, even if Judge Carter was annoyed, angry, and raised his voice, that is insufficient to support a claim of bias," the attorneys wrote.

Reached by phone Wednesday, Mkrtchyan said Carter is "a very dignified, respectable judge, so my motion should not be considered anything personal against him."

"He has basically really hurt my client's case, and that's why I believe it's necessary for me to file this," Mkrtchyan said. She also said she doesn't believe Carter should decide the motion. 

"Any judge is going to deny that they are biased," Mkrtchyan said.

In an email, defense attorney S. Frank Harrell told Law.com that Mkrtchyan's motion is "unfortunate" and "a symptom of a larger problem in our profession."

"As attorneys, we need to do a better job of showing respect to each other—and to the judiciary," said Harrell, a partner with Lynberg & Watkins in Los Angeles who represents four defendant sheriff's deputies. A fifth deputy is represented by Collins + Collins in Orange.