Suspension of Speedy Trial Act may go to US Supreme Court

A criminal defendant asked the 9th U.S. Circuit Court of Appeals to stay his case while he petitions the U.S. Supreme Court to uphold his right to a speedy trial. The effort points at a larger question: at what point must federal courts start dismissing charges because the ongoing COVID-19 pandemic has put too many trials on hold?

Dr. Jeffrey Olsen of Newport Beach was charged in 2017 with 34 counts related to illegally prescribing opioids and giving false information to a federal agent. In 2020, U.S. Central District Judge Cormac J. Carney dismissed the charges against Olsen. Carney ruled the court violated the defendant's right to a speedy trial when it suspended jury trials for over a year; he has issued similar dismissals in several other cases.

Prosecutors appealed. The 9th Circuit reversed Carney's ruling in Olsen's case in April, then denied rehearing on Jan. 6. United States v. Olsen, 2021 DJDAR 3820 (9th Cir., 2021).

In response, on Tuesday Deputy Federal Public Defender James H. Locklin asked the 9th Circuit to stay Olsen's case for 90 days while he petitions the U.S. Supreme Court. He argued the fact the "two judges dissented" and a third "expressed concerns" illustrates the ruling shows the high court should weigh in. Locklin cited the Sixth Amendment, the federal Speedy Trial Act and Klopfer v. North Carolina, 386 U.S. 213, 226 (1967).

"The Court has written about 90 pages on the matter," Locklin wrote. "The lengthy opinions, the considerable time spent on them, and the disagreements among individual judges reflect the complexity and importance of whether the Central District's unprecented ban on jury trials -- one of the most fundamental rights guaranteed by the Constitution -- has violated defendants' speedy-trial rights. Indeed, this is an ongoing issue because the Central District recently banned jury trials again for at least three weeks due to the pandemic and indicated that the ban 'may be extended as necessary.'"

Locklin added, "Olsen will not file a petition for a writ of certiorari for purpose of delay. Rather, he wants the Supreme Court to vindicate the speedy-trial rights he has vigorously fought for in the district court and on appeal."

The request illustrates a problem that has plagued both state and federal courts: Even as they face a historic backlog of civil cases, they must address criminal matters within certain deadlines. On Jan. 3, U.S. Central District Court Executive Kiry K. Gray suspended jury trials citing "an alarming surge of COVID-19 cases nationwide and in the Central District," caused by the highly contagious omicron variant. The order currently runs through Jan. 24. Many other state and federal courts around the nation have issued similar orders.

The 9th Circuit's Jan. 6 order and amended opinion noted Olsen is on pretrial release and that he has "obtained eight continuances of his trial date." He only invoked his right to a speedy trial "after the Central District of California suspended jury trials due to the COVID-19 pandemic in March 2020."

"By that time, the prosecution had been ready for trial for months and was wholly blameless for the Central District's suspension of jury trials. ... Because the district court misapplied the standard for an ends-of-justice continuance, we stand behind our opinion and concur with the denial of rehearing en banc," stated the order by Chief Judge Mary H. Murguia and Judge Morgan B. Christen. The ruling cited a dissent by Judge Daniel P. Collins, joined by Judge Danielle J. Forrest: "He noted that the panel upheld the Central District's lengthy suspension of jury trials by invoking overall public health concerns without ever considering whether there was any way in which criminal jury trials could have been conducted during the pandemic -- as the California state courts managed to do."

Judge Patrick J. Bumatay concurred, but wrote his decision was swayed by the fact Olsen is free. His determination may have been "quite different" if Olsen were incarcerated pending trial during a pandemic, he wrote.

Bumatay and Collins are former federal prosecutors. President Donald Trump nominated both, along with Forrest, to the 9th Circuit.