Thread by @meghanncuniff

This could be a pandemic first: a federal judge here in Orange County is dismissing a criminal indictment because the Central District of California won’t hold a jury trial due to coronavirus concerns.

Federal prosecutors earlier dismissed on their own accord an immigration case to avoid this legal debate. But this case is different: It’s a major OxyContin distribution indictment against a Newport Beach physician linked to patient deaths.

.@TheJusticeDept touted his arrest back in 2017: dea.gov/press-releases…

Notable: this is being dismissed without prejudice (defense wanted w/ prejudice), which means prosecutors can re-file so long as statute of limitations requires. Defense trying to persuade judge (Cormac Carney) to change his mind.

“It’s a district-wide violation that’s been going on for several months,” defense says. She points to the fact that grand juries are currently meeting and returning indictments, but jury trials aren’t allowed.

Defense also points to @USAO_LosAngeles’ continued opposition to bond, despite no jury trials for foreseeable future. Calls it “offensive” and says it warrants a harsher sanction.

This ruling exposes a big fight within the Central District. Notably, it involves Judge Carney, who resigned as chief judge over the summer, and his replacement, Judge Philip Gutierrez. Carney earlier ordered Gutierrez to summon a jury for this trial, but Gutierrez refused.

Legal issue here is the “ends of justice” exclusion in the 1974 Speedy Trial Act’s enforcement officials the 6th Amendment. Carney says case law says it applies only if a jury trial is impossible, which he says is not the situation in the Central District.

“This district is relying on color-coded tiered systems that the governor has put together for nonessential businesses,” Carney says. Those don’t even apply to state courts, let alone federal. (OC Superior has been holding jury trials for a couple months now.)

“This virus is going to be with us for a while...when is the government going to take the position that we need to resume jury trials?” Judge Carney says. Prosecutor says that question “is really for the court at large...I’m not in the position to speak for my office on that.”

Also notable: this doesn’t take effect until Oct. 28, “when the time limit for commencing Mr. Olsen’s trial will have expired.” I wonder if something will happen between now and then. 🤔

While the Central District is not alone in its “no jury trial” stance, lots of other courts are holding trials, including the Southern District of California in San Diego. I’m working on a big article for @ABAJournal about the constitutional issues here.

Judge asks prosecutor if they’ll appeal to the 9th Circuit if he changes the dismissal to “with prejudice.” Prosecutor says no “finalized decision” has been made. This after prosecutor notes they can still re-indict on the same charges within six months.

“I strongly believe the circuit needs to weigh in on this immediately,” Carney says. Adds that issue “transcends this case.” He has other big cases coming up that could be affected here. “If we don’t get a change here, there’s going to be a lot of dismissals.”

That includes the re-trial of a federal inmate accused of soliciting the murder of the prosecutors on his original base and (now retired) Judge Andrew Guilford. (The wood chipper case. Convictions were overturned by the 9th: latimes.com/california/sto…)

Carney is wavering on his “without prejudice” decision based on government assertion that they can simply re-indict. Prosecutor is partly focused on fact that it’s not @USAO_LosAngeles that won’t hold jury trials: it’s the chief judge of the Central District.

Carney says if he dismissed the case without prejudice and prosecutors re-file, the consequences disappear and he’s basically granted the government’s continuance request. Prosecutor doesn’t disagree but says same charges from a new grand jury aren’t a sure thing.

Carney emphasizes he’s upset majority of Central District judges voted to halt jury trials and are essentially telling him what to do in his courtroom. Says fear of people getting sick “is blinding them to the constitution.” “It’s the judges that are engaging in the misconduct.”

Carney points to the fact that movie theaters are open in Orange County. “Gosh sake - a movie is going on in Orange County and I can’t get a jury trial for Mr. Olsen.”

That movie reference reminds me of a fun detail in my @LADailyJournal profile of Judge Carney the other year: he and his wife often go to movies with their friends OC Superior Court Judge Rick King and King’s wife. King has held a lot of jury trials in the last couple months.

I keep waiting for Judge Carney to point to the fact that the US Court’s official Twitter (@uscourts) touted the safety of jury trials in a series of Sept. 10 tweets. Hasn’t happened yet.

Judge Carney says he’s of course sticking with his dismissal decision regarding the Speedy Trial Act, but he needs to further consider the crucial detail of whether the dismissal is with prejudice or without prejudice.

Carney expects to issue his final ruling regarding prejudice or no prejudice on Oct. 28. Stay tuned!

(Because who needs the movies when you’ve got this? 🍿)

This is interesting: Carney’s tentative ruling (distributed at the hearing but not available in PACER) says the growing backlog of Central District trials is crowding the jails.

“People charged with crimes in California, and whose families and lawyers are in California, are being transported without notice to Arizona because there is simply no longer bed space in the Central District to house them.” (c.c.: @matthewferner, @theappeal)

The power of social media: 26,000 views and counting. More than the circulation of some newspapers. (And waaaaay more than the readership.)

Surprise! Judge Carney didn't wait for the 28th to finalize his order. It's out now, and he dismisses the 35-count indictment WITH prejudice. This is big. Prosecutors cannot seek another indictment now. Only options are appeal to the 9th or forget the case.

Judge Carney really goes after the Central District's chief judge here: "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."

On dismissing w/o prejudice, Carney writes: "In effect, there would be no adverse consequences from the Central District’s knowing and willful decision to violate Mr. Olsen’s constitutional right to a public and speedy trial."

A lot of interesting stuff to unpack here, but the bottom line is the same as yesterday: In a pandemic first, a judge has dismissed a criminal indictment because the court won't hold a jury trial due to coronavirus concerns. Read the full order here:
drive.google.com/file/d/1YKICMk…