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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...

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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...

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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...

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“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...

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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...

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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.

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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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