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“The Court Regrets the Present Circumstances.”

On Wednesday, Judge James Selna of the US District Court for the Central District of California issued an order continuing a jury trial that was set for June 1. The order is worth reading in its entirety:

Orange County is presently in the purple zone. The county would have to move two zones to the yellow zone before the court would begin conducting jury trials under the present General Order. That is unrealistic in light of the present trial date.


Several other factors compel a continuance. Criminal cases take priority under the Speedy Trial Act. This court has not tried a criminal case in over a year, and there is obviously a backlog which must be addressed once the court opens for jury trials. Moreover, there are many civil cases older than this case in the queue to be tried. There is no basis to advance this case ahead of other civil litigants who have also been waiting to go to trial.


Finally, there is a seven-week lead time to summon a jury.


The court grants the motion to continue the trial to October 12, 2021, and all other dates accordingly. The court must candidly advise the parties that there is no assurance that the trial will proceed on that date for the reasons outlined above.


The court regrets the present circumstances and ask for the parties’ patience.

Lawyers and Judges Battle over COVID-19

Requests for COVID-19-related trial delays can lead to strife between lawyers and judges—and crazy things can happen. We see this most recently in San Bernadino, California, where a civil jury trial has been interrupted in the middle of jury selection. The Sun has the story, which we paraphrase:

An attorney who allegedly tested positive for COVID-19 amid San Bernardino County’s largest civil trial since the start of the pandemic claims court personnel failed to inform dozens of potential jurors that he may have inadvertently exposed them to the virus.


The attorney, who represents the defendants, made the claim in a motion, prompting the judge to halt jury selection until Feb. 15.


“The court refused to inform potential jurors that they had been exposed to someone contagious with COVID-19,” the Nov. 10 motion states. “Far from contact tracing, the court actually withheld information from those who may have been exposed.”


Plaintiff’s counsel, however, says that no jurors have been diagnosed with COVID-19, said an attorney representing the plaintiff. According to plaintiff’s counsel, the judge has been meticulous in following Centers for Disease Control guidelines to guard against the virus, requiring those in the courtroom to practice social distancing and wear protective face covers.


Defendant’s in-house counsel said: “The risks are just too high right now, with the dramatic increases in cases, and the lack of intensive care unit space in hospitals. The numbers are astonishing, and the judge made the right call in pausing this trial.”


The defendant has made repeated legal attempts to delay the trial due to COVID-19 concerns.


Last month, after the judge ordered jury selection to proceed, the defendants filed a petition with the California Court of Appeals seeking an immediate stay, expressing fear the trial could result in a virus super-spreader event. That petition and a subsequent appeal to the California Supreme Court were both denied.


The defendants’ reiterated their concerns in a motion last week, argument that Southern California’s COVID-19 infection rate is even more dire than it was a month ago. “Now is not the time to bring together a roomful of strangers for a non-essential civil trial,” the motion asserts.


The motion also states that the court failed to adhere to COVID-19 protocols following his own virus diagnosis.


On Nov. 18, other defense attorneys informed the judge that lead counsel, who was not present, had a headache and was experiencing chills. They added that lead counsel had been in the courtroom with dozens of jurors, lawyers and court staff over the course of several days just before he became ill.


Lead counsel had sat a little more than 6 feet apart from 85 jurors who took turns speaking into a microphone, according to the motion.


Upon learning of lead counsel’s symptoms, the judge said she hoped he felt better and wasn’t infected with COVID-19 before moving on to other trial-related matters, says the motion.


“The court then immediately proceeded to discussion of deposition designations without any consideration of whether it was appropriate for lawyers who had been in close contact with [the allegedly infected lawyer] to continue to appear in the courtroom alongside jurors and court staff, or whether the jurors who had been exposed to [him] just days prior should be notified of their risk”, the motion states.


Defendants’ lead counsel informed the court during a telephonic hearing on Nov. 25 that he had tested positive for COVID-19. However, that revelation was met with skepticism from plaintiff’s attorneys, who suggested that [defendant’s lead counsel] was lying about his COVID-19 diagnosis to delay the trial and also pressed for a copy of his test results, the motion says.


Defendant’s in-house lawyer said it is her understanding that the judge didn’t tell jurors they were exposed because she thought a sufficient number of days had passed from when they were in the presence of her infected colleague.


Other possible COVID-19 issues also surfaced during the trial.


On December 3, a juror came in person to the jury assembly room to report she had been exposed to COVID-19 and could be a carrier, according to the motion. Then, on December 7, a potential juror reportedly was coughing, sneezing and wheezing in the courtroom where he spent about 4 1/2 hours during jury selection.


“Jurors who had shared the courtroom with the possibly infectious juror the preceding day were not informed of the potential risk, and attorneys and court staff—who now themselves might be carriers of COVID-19—sat alongside the new day’s fresh batch of jurors,” according to the motion. “The failure to adhere to basic COVID-19 safety protocols during the past several weeks raises serious public health concerns.”


It was unclear regarding whether the individuals in the two incidents were diagnosed with COVID-19.

Updates from the Several States

A vaccine is on the way, but jury trials are not—at least not in many places. Yesterday Indiana suspended all jury trials in the state until March. North Carolina froze nearly all in-person court proceedings through at least January 14, 2021. The Western District of New York halted all jury trials at least through February 24. (The Western District includes Buffalo and Rochester.)

The Western District’s order, like many closure orders, also applies to grand jury proceedings. But not all grand juries are shut down. Last week a grand jury in the Southern District of California returned an indictment of a physician for crimes arising from his business venture selling COVID-19 “treatment kits,” which he advertised to one potential customer as a “miracle cure.” The defendant is a licensed physician and the former operator of Skinny Beach Med Spas in and around San Diego. According to the DOJ press release, the defendant agreed with a Chinese supplier to smuggle hydroxychloroquine powder into the U.S., lying to U.S. Customs by mislabeling a shipment as “yam extract.” The defendant is also charged with stealing the name and identifying information of one of his employees in order to create and submit a bogus prescription for hydroxychloroquine on the employee’s behalf, in order to sell the drugs at a markup to his customers.

Why cover a grand jury indictment on a trial blog? It’s what’s happening. Trials are not.

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

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.”

Orange County Federal Court: When Judges Disagree

Meanwhile, an interesting story in the US District Court for the Central District of California. The Los Angeles Times reports on the dismissal of an indictment against an Orange County physician in a drug distribution case. The defendant had been indicted in 2017. He wanted his trial. But the chief judge, Philip Gutierrez, refused to lift the prohibition on jury trials. Therefore the trial judge, Cormac Comey, dismissed the case with prejudice. And he wrote with candor:

“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. 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. 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.”

Public criticisms by a federal judge of a chief judge’s administration are rare.

Trials Underway in San Francisco and Cleveland Courts

Most of the federal trials that have actually been held during the pandemic have been in rural locales. But yesterday, Judge William Orrick in San Francisco launched an in-person criminal jury trial in a mail-bombing case. Jury selection began with a SurveyMonkey questionnaire. The courtroom is closed to the public but the audio is being broadcast over Zoom to all interested observers.

Meanwhile, Cleveland saw its first pandemic jury trial end Friday after five days with the acquittal of an accused murderer. The state court trial was held in a large conference room in the county-owned Global Center for Health Innovation. Everyone was masked except for testifying witnesses. Jurors sat six feet apart behind a plexiglass shield and with shields between them.

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