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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.




“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 [...]

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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 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.




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

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