9th Circuit questions whether trial judge considered all factors when throwing out criminal indictment

A panel of federal circuit judges on Thursday considered a pair of criminal cases affected by the ongoing suspension of jury trials in the Central District of California during the COVID-19 pandemic.

The first was an appeal from a pretrial detention order for defendant Paul Torres, who remained incarcerated for nearly a year with no set trial date. If a jury trial ban is permissible, questions remain whether the Speedy Trial Act or due process clause prevents his ongoing detention. The second case considered by the 9th U.S. Circuit Court of Appeals was an appeal of a decision issued by U.S. District Judge Cormac J. Carney, who dismissed Dr. Jeffrey Olsen's criminal indictment with prejudice last year, citing trial delays. Olsen is accused of overprescribing opioids that resulted in the deaths of some of his patients. USA v. Olsen, 17-CR-00076 (C.D. Cal., July 6, 2017).

The panel questioned whether Carney considered all appropriate factors when he dismissed the case with prejudice, or if he did so to send a message to his fellow Central District bench colleagues.

The panel Thursday consisted of Circuit Judges Mary H. Murguia and Morgan B. Christen and visiting Chief U.S. District Judge Barbara Lynn of the Northern District of Texas.

Out of the gate in the Olsen arguments, Murguia pointed out that Central District Chief Judge Philip S. Gutierrez's general order does not specify an end date of current limited operations, including the pause on trials. The 9th Circuit's executive committee extended the judicial emergency for a year, expiring April 13, which could be considered a finite end date. But that decision was made by the chief judge after taking into account the state's color-coded Blueprint for a Safe Economy plan, Assistant U.S. Attorney Charles Fowler said.

"Even if there isn't a specific end date to the general order's suspension of jury trials, that suspension is nevertheless at any given time a factor that weighs heavily, I think, in favor of granting an ends of justice continuance out to a particular date," Fowler told the panel.

Christen pointed out that jury trials did commence in other courts, including Orange County Superior Court across the street from the Santa Ana federal courthouse, where Carney sits. There is no doubt the Central District judges, including Gutierrez, are exercising good faith and doing their best during a global pandemic, but constitutional rights are also of concern, said Christen, who cited the recent U.S. Supreme Court decisions that highlighted the constitutional right to worship in person.

"I'm curious about your best answer as to Judge Murguia's question, that this is another important constitutional right, but it's an all or nothing here," Christen told Fowler. "And we don't have an end in sight. Shouldn't we be concerned?"

The decision to suspend jury trials requires a continuance, not a dismissal, Fowler replied.

Murguia asked if Carney would have granted a continuance if he had considered all the factors. Christen also jumped in asking if Carney ever considered the miscarriage of justice factor in his decision to toss out Olsen's indictment.

Carney might have granted a continuance, Fowler said, but at the end of the day, the district judge did not consider the miscarriage of justice factor in his decision.

The panel also grilled Deputy Federal Defender James Locklin about the state's blueprint being tied to the Central District's general orders, with Christen pointing out, "There's no mention of industrial guidance in the blueprint, and there's no mention of how this blueprint has been built." The judge added that epidemiologists found that one venue cannot be equated to another, and proper ventilation inside buildings must always be evaluated.

"We don't have any information about what the ventilation system is in the courts where you want us to compare," Christen told Locklin. Locklin responded there was no evidence that federal courts, which generally have better resources and bigger courtrooms, are less equipped to deal with the pandemic than a state courthouse.

Christen asked if there was any evidence that state courts did, in fact, conduct jury trials safely during the pandemic, as the Central District's order doesn't take into account sector by sector industrial guidance within the market. While Locklin conceded there was evidence provided by the U.S. attorney based on news articles, "it depends on how much faith the court wants to give to its state court colleagues," he said, adding that the state courts would have changed plans if jurors did end up falling ill after serving.

What frustrated him and Carney, Locklin said, was that the state's blueprint was designed for nonessential businesses but the federal court has its own sets of circumstances and can enforce protocols and shouldn't follow the guidance of when a movie theater is allowed to reopen. The Central District hasn't been too forthcoming about its reasoning except for an interview Gutierrez gave about opening jury trials based on color-coded tier systems for California businesses, Locklin argued.

Both Christen and Murguia remained skeptical as to whether Carney ever made a distinct finding that a jury trial could, in fact, proceed safely other than pointing to Orange County Superior Court as an example.

"I thought his main reason was that it wasn't impossible," Murguia said. "But I'm trying to find where in the text supports that reading of the statute ... because I don't know if he said anything about proceeding safely, except for when he referred to state courts."

Lynn asked if it actually was impossible for a jury trial to happen. "Because my understanding is Judge Carney couldn't get a jury because of the order of the court, to which he was subject, prevented him from getting a jury," Lynn said. "I agree with Judge Murguia, but even if it is, wasn't it in fact impossible, given the order of the district court?"

"No, and that's the problematic point the government makes," Locklin contended. Carney did the balancing test the law required, considering all community circumstances and safety measures when deciding whether the right to a speedy trial outweighed those factors, Locklin argued.

But Christen and Murguia questioned whether Carney actually considered all the factors in his decision, and said it appeared to them he tried to send a message to his colleagues when he threw out Olsen's case with prejudice.

"You say the judge considered all the factors. Did he? I'm not quite sure. He focused a lot on trial impossibility, and then with that, primarily sending a message to his colleagues that he believed Mr. Olsen's rights were being violated," Murguia said. "I don't know if he did a wholesome review of all factors that other judges would do in applying the statute."

Christen added there was no allegation that the U.S. attorney was ever at fault or did anything wrong. Carney initially tossed out Olsen's case without prejudice in a tentative order, but then "flipped to send a message to the district court colleagues and the chief judge of the court," she added.

Locklin defended Carney, arguing that the trial judge determined it was necessary to dismiss the case with prejudice as he believed it was the only hope the Central District would resume normal practice. The panel also asked Locklin if there was a place in the record where Carney considered whether the denial of a trial continuance results in a miscarriage of justice.

Locklin replied the crux of Carney's decision was that depriving defendants of their right to a trial was a miscarriage of justice, while the government contends it is a miscarriage to dismiss the case with prejudice. Carney "begged repeatedly for the government to step up and support his position" while prosecutors continued to gather grand jurors to indict people, Locklin argued.

But the panel noted there was nothing the prosecutors could have done as they did not control the issuing of subpoenas to start trials, to which Locklin agreed. But he stood firm that prosecutors sat back during the situation and agreed with the districtwide ban, while having no problems intervening in the church ban challenges.

Prosecutor Fowler told the panel that Carney never made a finding that jury trials would be safe but if anything, he made the opposite finding when he acknowledged the general order relied on the premise that the pandemic made it unsafe to do so. Carney emphatically restated that trial would have to be impossible to conduct, but never specifically found that holding one would be safe, nor did he consider all of the factors under the ends of justice provision, Fowler said.

"We want a reversal of his order, and a finding that the ends of justice outweigh the interest in a speedy trial," Fowler concluded.