“Knowingly and Willfully”: Judges Clash over Reopening Procedures in Orange County

By on October 19, 2020

More on last week’s remarkable opinion by former Chief Judge Cormac Carney of the US District Court for the Central District of California. So far, this story seems to have merited coverage by the Los Angeles Times and this blog, but nowhere else.

Judge Carney’s opinion is 20 pages, with exhibits documenting his facts. He begins with the old trial lawyer’s favorite Thomas Jefferson quote: “I consider the trial by jury as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” Then, after some history, he writes:

Sadly, the United States District Court for the Central District of California has denied Defendant Jeffery Olsen his Sixth Amendment right to a public and speedy trial on the criminal charges that were filed against him in this case. Specifically, the Chief Judge for the Central District refused to summon the jurors necessary to conduct Mr. Olsen’s trial that was scheduled for October 13th of this year, believing it was too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions were in place. Most troubling, the Chief Judge refused to summon jurors for Mr. Olsen’s trial even though grand juries have been convening for months in the same federal courthouse in Orange County where his trial would take place and state courts just across the street from that federal courthouse are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the Central District prevented the Court from even trying to do so for Mr. Olsen. Because the Central District denied Mr. Olsen a public and speedy trial under the Sixth Amendment, this Court now must dismiss the indictment against him.

Discussing the narrow nature of the Speedy Trial Act’s “ends of justice” exception, Judge Carney concluded that it is “under the current circumstances, it is simply not a physical or logistical impossibility to conduct a jury trial.” He continues:

Although some aspects of the practice of law may be less convenient during this time when many are practicing social distancing, no one contends that it is not possible to perform necessary trial preparations or to attend the trial. Nor does anyone argue that there is insufficient courthouse staff available to facilitate a trial.

 

Indeed, if one had any doubt about the possibility of conducting a jury trial during the pandemic, one need look no further than the very courthouse in which Mr. Olsen seeks to have his jury trial in Orange County. There, between June 24 and September 30, 2020, a grand jury convened and returned 41 indictments. That means that the grand jury, which has at least 16 people on it, gathered in person in the Orange County federal courthouse numerous times. While they were gathered, they heard testimony from witnesses and deliberated together. If a grand jury can perform these functions in the exact courthouse where Mr. Olsen seeks to be tried, the Court surely can hold a jury trial for Mr. Olsen in that courthouse.

 

Even more compelling is the fact that the state court across the street from the Orange County federal courthouse resumed jury trials with appropriate precautionary measures nearly four months ago. The Orange County Superior Court did not hold any criminal jury trials in April or May of this year because of the pandemic. However, from June to September, it held 82 criminal jury trials and 4 civil jury trials. Notably, in June, July, and September, over 60% of potential Orange County jurors reported to fulfill their civic duty. Obviously, the state court has accomplished this by taking numerous careful measures to ensure safety. It accommodates social distancing by staggering times for juror reporting, trial start, breaks, and concluding for the day, seating jurors during trial in both the jury box and the audience area, marking audience seats, and using dark courtrooms as deliberation rooms. It also regularly disinfects the jury assembly room and restrooms, provides facial coverings, uses plexiglass shields in courtrooms, and requires trial participants to use gloves to handle exhibits. Of course, similar safety precautions could have been in place for Mr. Olsen’s trial, had the Central District allowed this Court to hold one. …

 

Quite frankly, the Court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse. The Internal Revenue Service, the Social Security Administration, and other federal agencies in Orange County are open and their employees are showing up for work. Police, firefighters, and other first responders in Orange County are all showing up for work. Hospitals and medical offices in Orange County are open to patients and the medical professionals are showing up for work. Grocery stores, hardware stores, and all essential businesses in Orange County are open and their employees are showing up for work. State courts in Orange County are open and holding jury trials. Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining. Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors, and pet groomers in Orange County are open, even indoors, with protective modifications. Children in Orange County are returning to indoor classes at schools, with modifications. Even movie theaters, aquariums, yoga studios, and gyms in Orange County are open indoors with reduced capacity. Yet the federal courthouse in Orange County somehow remains closed for jury trials. The Central District’s refusal to resume jury trials in Orange County is indefensible.

Judge Carney then discusses the decisions of Chief Judge Phillip Gutierrez, who sits in Los Angeles:

Most important in this case are the facts and circumstances leading to dismissal. The Chief Judge of the Central District—supported by a majority vote of judges in the district—decided not to summon jurors for Mr. Olsen’s trial. He made that decision knowing that holding a jury trial in Orange County was possible. He made that decision knowing that a grand jury was convening in the Orange County federal courthouse. He made that decision knowing that Orange County state courts were open for jury trials. And he made that decision knowing that Orange County nonessential businesses were open with appropriate modifications for safety. His decision was knowingly and willfully made. The primary factor driving the Chief Judge’s decision was the risk that people might get sick from the coronavirus. But his decision was made with little or no regard for Mr. Olsen’s constitutional right to a public and speedy trial. Indeed, in his order denying the Court’s request to summon jurors for Mr. Olsen’s trial, the Chief Judge made no mention of the Constitution at all.

And Judge Carney, in dismissing the indictment with prejudice, wrote that he had chosen this sanction, in part, to deter the chief judge:

Finally, barring reprosecution in this case by dismissing with prejudice is the only sanction with enough teeth to create any hope of deterring additional delay in the resumption of jury trials and avoiding further dismissals of indictments for violations of defendants’ constitutional rights to a public and speedy trial.

Judge Carney closes with another Jefferson quote: “The wisdom of our ages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”

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McDermott’s litigation team monitors US courts as they reopen amid the ongoing COVID-19 public health crisis.

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