Federal criminal case dismissed with prejudice for lack of jury

A federal judge, frustrated that the Central District of California refuses to resume jury trials, dismissed with prejudice a criminal indictment against a doctor accused of over prescribing prescription pills.

"Given the constitutional importance of a jury trial to our democracy, a court cannot deny an accused his right to a jury trial unless conducting one would be impossible," U.S. District Judge Cormac J. Carney wrote in an order Wednesday. "This is true whether the United States is suffering through a national disaster, a terrorist attack, civil unrest or the coronavirus pandemic that the country and the world are currently facing.

"Nowhere in the Constitution is there an exception for times of emergency or crisis," Carney continued. "There are no ifs or buts about it."

Dr. Jeffrey Olsen, who was accused of prescribing and distributing oxycodone, amphetamine salts and hydrocodone to patients, was scheduled to begin trial Oct. 13. U.S. v. Jeffrey Olsen, 17-CR-00076 (C.D. Cal., filed Jul. 6, 2017).

Ciaran McEvoy, a spokesman for the U.S. attorney, said the government is exploring options. Olsen's counsel, Deputy Federal Defender Elena R. Sadowsky, could not be reached for comment.

The dismissal highlights a growing dispute between Carney, who sits in Santa Ana, and some of his colleagues, including Chief Judge Philip S. Gutierrez, over their refusal to resume jury trials. Gutierrez denied Carney's request in August to call jurors to hear the criminal case of a man accused of illegally reentering the country, resulting in a dismissal. Gutierrez again last month denied Carney's request to call jurors for the doctor's trial. The chief judge said he was acting on a consensus of the judges that jury trials were unsafe at this point in the pandemic.

The dispute reached a dramatic point Tuesday when Carney took to the bench for 2 hours to denounce his colleagues and the federal prosecutors who he said continued to arrest, charge and indict people without the prospect of a jury trial.

Federal prosecutors had sought to continue Olsen's trial citing Gutierrez's orders. They also argued the 9th U.S. Circuit Court of Appeals has held that the Speedy Trial Act does allow an "ends of justice" continuance for catastrophic emergencies like a pandemic.

In Wednesday's order, Carney said the Speedy Trial Act requires a trial to start within 70 days of the filing of the indictment or a defendant's initial court appearance, and that Congress intended the "ends of justice" provision to be rarely used.

"Barring re-prosecution 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 the defendants' constitutional rights to a public and speedy trial," Carney wrote.

"In effect, there would be no adverse consequence from the Central District's knowing and willful decision to violate Mr. Olsen's constitutional right to a public and speedy trial," Carney wrote. Doing so would "send exactly the wrong signal, and foster in the future 'a cavalier regard, if not a concerted disregard' of the Constitution."

Carney also called out the government for "now offering favorable deals to defendants to incentivize them to plead guilty." He cited reports from the Central District U.S. attorney's office that he said shows "the office has nearly three times the number of cases in the pretrial phase and only about half the cases in the presentencing phase in 2020 as compared to a similar period in 2019."

Prosecutors have been authorized to offer two-level variances under the sentencing guidelines to many defendants, so long as they waive their right to in-person hearings, sign plea agreements quickly and enter their pleas at the first date ordered by the court, Carney wrote.

"In other words, the government is now offering very favorable plea deals based not on the defendant's individual circumstances, but rather, based on exigencies manufactured by the Central District's refusal to resume jury trials," the order states.

Carney voted with his fellow colleagues in July to pause jury trials through August. At that time, Carney had no case in which a defendant was unwilling to waive time due to the pandemic. But that has changed. The illegal reentry case appeared to be a turning point in the judge's thinking. U.S. v. Recinos, CR-19-724 (C.D. Cal., filed Nov. 26, 2019).

Judge David O. Carter, who also sits in Santa Ana, said Wednesday he agreed with Carney's sentiments.

"Let me be very clear. I do want jury trials to get going," Carter said in a phone interview. Carter said he, too, came close to running into a similar situation in a multi-defendant criminal case before the remaining defendant took a plea deal.

"I'm now getting my defendants going right after arraignment. I want to know if they are pleading, are they asking for a continuance, because I'll give it to them," Carter said. "But if they don't waive time, I say, 'Please tell me because I was told I can't get jurors for at least seven weeks.'"

Carter pointed out that 41 grand jury indictments have been issued in Santa Ana, where up to 19 jurors have been convening.

"Orange County cases are relatively low, cross your fingers, but even with all of that, the superior court has held trials. Yet we're the ones that are closed to trials," Carter said. "But these grand jurors are meeting in the same building."

Carter agreed that jury trials could be conducted safely in Orange County.

"Now, maybe Los Angeles has a different tier, I understand that, I'm not arguing that Los Angeles should be in the same position. That's up to the main courthouse. But down here, movie theaters are open, and kids are going back to school."

Senior U.S. District Judge Terry Hatter Jr., who sits in Los Angeles, said he understood the frustration of his colleagues who want to start trial but said the safety of potential litigants and jurors must be considered.

"I think it's sad we have to do this, but I see no other recourse," Hatter said. He is not part of the executive committee of judges that must approve the resumption of operations, but said he joined the majority of judges in voting to suspend jury trials.

"It would certainly be unfair to jurors, particularly those who are providing a service to the court by being jurors. We're following guidelines here and are still trying to perform as much service as we possibly can," Hatter said.

Hatter also said he believed it would be impossible to conduct a jury trial safely at this juncture, unless there is some change in the pandemic, or some medicine or vaccines are available to the public.

"I just think this matter is ripe for appeal," Hatter said when asked his view of the Olsen case. "It's a very sad situation."

In other parts of the state, courts have been conducting jury trials. The Southern District of California has completed five: three criminal and two civil. A criminal jury trial is ongoing and another is scheduled to begin next week, according to Clerk of Court John Morrill.

The Northern District of California has held two criminal jury trials since post-shutdown orders, U.S. v. Nikulin, 16-CR-00440 and U.S. v. Laverty, 18-CR-00061, but no civil trials.

The Eastern District of California hasn't had any jury trials, and there are none planned, according to Clerk of Court Keith Holland.