Circuit reinstates criminal case judge tossed over closed court

The 9th U.S. Circuit Court of Appeals reinstated an Orange County doctor's indictment, finding that a federal judge abused his discretion when he dismissed the case with prejudice during a districtwide pause on jury trials in light of the COVID-19 pandemic.

In a 24-page published per curiam order Friday, the circuit judges said U.S. District Judge Cormac J. Carney of the Central District of California erred in his reading of the federal statute when he concluded that continuing Jeffrey Olsen's trial on charges of overprescribing opioids leading to deaths under the "ends of justice" provision is appropriate only if conducting a jury trial would be impossible.

Carney's reading of the statute was "at best ... a strained reading of the Speedy Trial Act, and one without support from the text of the statute or our precedent," according to the panel comprised of circuit judges Mary H. Murguia and Morgan B. Christen and Chief Judge Barbara M.G. Lynn of the Northern District of Texas sitting by assignment.

In his rulings, Carney has pointed across the street to the Orange County Superior Court, which has been holding jury trials for months to bolster his position that jury trials are in fact possible.

Thom Mrozek, spokesman for the U.S. attorney, declined to comment on the 9th Circuit ruling. James Locklin of the Federal Defender's Office, who argued on Olsen's behalf before the 9th Circuit last month, could not be reached for comment Monday.

The Speedy Trial Act requires a criminal trial to start within 70 days from the date on which the indictment was filed, or the date when a defendant makes a first appearance, whichever is later.

Carny's reading of the act's ends of justice provision was incorrect, the 9th Circuit panel wrote, but acknowledged that the Sixth Amendment right to a speedy public jury trial "is among the most important protections guaranteed by our Constitution, and it is not one that may be cast aside in times of uncertainty."

The panel cited two cases where proceedings were halted, one when Mount St. Helens erupted two days before a trial was to proceed, and another when a severe snowstorm warranted an eight-day continuance of the act's charging deadlines because a grand jury was unable to meet. Furlow v. United States, 644 F. 2d 764 (9th Cir. 1981) and USA v. Paschall, 988 F. 2d 972, 973-75 (9th Cir. 1993)

"Contrary to Olsen's argument, nothing in Furlow or Paschall establishes a rule that an ends of justice continuance requires literal impossibility. In those cases, we simply affirmed ends of justice continuances because the eruption of a volcano and a major snowstorm temporarily impeded court operations," the panel wrote.

While Olsen's case was on appeal, Carney dismissed at least five other criminal cases whose trial deadlines expired. Mrozek declined to say what steps the U.S. attorney would take on those cases. "We are conferring with the Department of Justice as to potential further action," he said.

The Santa Ana division of the Central District of California, where Carney sits, is set to begin jury trials May 10. Carney, who waged a public battle with colleagues who voted to suspend jury trials last March, is scheduled to conduct the district's first civil jury trial in a year on that day.

Olsen, who was on pretrial release, was indicted in 2017 on 34 counts relating to alleged overprescribing of opioids, which the U.S. attorney said resulted in the deaths of at least two of his patients. USA v. Olsen, 17-CR-76 (C.D. Cal., filed July 6, 2017). According to the Medical Board of California's records, Olsen's license remains active and expires Dec. 31.

Olsen had his case continued several times over three years and only when jury trials were paused did he begin invoking his rights to go to trial, and by then, the U.S. attorney had been ready for trial for months, "and was wholly blameless for the Central District's suspension of jury trials," the panel wrote.

The circuit panel wrote, "The pandemic is an extraordinary circumstance and reasonable minds may differ in how best to respond to it. The district court here, however, simply misread the Speedy Trial Act's ends of justice provision in dismissing Olsen's indictment with prejudice."