An iconoclastic judge takes a bow

U.S. District Judge Cormac J. Carney has recently been under the microscope for repeatedly refusing to allow the U.S. attorney to prosecute an alleged white supremacist because "anarchists" and "anti-fascists" weren't similarly prosecuted for waging mayhem during the racial justice protests of 2020.

Yet he never appeared bothered by rebukes from the 9th U.S. Circuit Court of Appeals or newspaper writers. Indeed, Carney's 21-year tenure on the Central District of California court has been marked by maverick decisions. On Friday, he is making another unusual move for a federal judge by retiring, instead of taking senior status where he could continue to enjoy the perks of the position with a greatly reduced workload.

"Over 21 years ago, I made a solemn promise to support and defend the Constitution and the laws of the United States. My sincere thanks to all the wonderful people who helped keep that promise. In the words of Saint Paul, we fought the good fight, we finished the race, we kept the faith," Carney said in a statement that sounded like a mic drop.

Carney, who is 65, announced in April that he would leave the court. A former UCLA star wide receiver and Harvard Law School graduate, he was an Orange County Superior Court judge for two years before President George W. Bush put him on the federal bench in 2003.

Judicial colleagues and lawyers who practiced before Carney over the years said he has always been a straight talker bent toward making bold decisions that he believed rested within the framework of the U.S. Constitution.

"The oath that he took drove him and guided him every day in his judicial responsibilities. He showed the utmost compassion for victims and those accused of committing crimes and those convicted of committing them. He never lost sense of applying the Constitution in a practical, every day meaning ... but never at the expense of losing what that principle stood for," Orange County Superior Court Judge Rick M. King said.

U.S. District Judge David O. Carter called Carney "incredibly courageous."

"He always seems to be trying to make the right decision and to articulate that decision. That's important for the public because they have to understand why a judge is making a decision, whether they agree with the decision or not, that there's reasoning behind it," Carter said in a phone interview.

"I don't think you could have a better colleague in terms of representing the Constitution and the people he presided over," Carter added.

Carney's time as a federal judge was marked by a series of bold and sometimes controversial decisions.

In 2009, he shockingly dismissed all criminal charges related to stock options backdating against Broadcom Corp. executives William Ruehle and Henry Nicholas on grounds of prosecutorial misconduct involving witness intimidation.

In 2010, he became the first federal judge to convict someone under the Economic Espionage Act in a case related to a China-born space engineer. Carney sentenced Dongfan "Greg" Chung to nearly 16 years in federal prison for stealing secrets related to the U.S. Space Shuttle program.

And in 2011, he sanctioned the Federal Bureau of Investigation after finding an agent lied about the existence of documents in a civil case over government surveillance of an Islamic group, then dismissed a related lawsuit at the FBI's request to protect national security.

Carney drew a lot of heat from a 2014 order that vacated a California man's death row sentence that had been pending for more than two decades. The judge held the state's death penalty violated the Eighth Amendment's prohibition against cruel and unusual punishment. The state attorney general at the time, now-U.S. Vice President Kamala Harris, criticized Carney's decision as "flawed" and appealed to the 9th Circuit, which unanimously reversed him. Jones v. Chappell, 2:09-cv-02158 (C.D. Cal., filed Mar. 27, 2009).

Carney defended his decision in a 2018 interview with the Daily Journal and described the reversal as "disappointing and sad."

Justice Thomas M. Goethals of the 4th District Court of Appeal called Carney's death penalty opinion "courageous and ahead of its time."

In a phone interview, Goethals said he still admires Carney's courage to issue that decision and then stick by it. "I have found Cormac always to be one of the brightest, most intellectually honest judges I have ever known, and also one of the most courageous. If Cormac thinks something is correct and the right thing to do, it's pretty hard to dissuade Cormac... ."

In 2020, Carney was briefly chief judge of the Central District before voluntarily stepped down after using the term "street smart" to describe a Black clerk of court during a webinar. He apologized amid criticism that the comment was racially insensitive.

In 2021, a 9th Circuit panel reinstated drug and weapons charges against an Orange County doctor. The appeals court said Carney abused his discretion by dismissing the case with prejudice during the 2020 districtwide pause on jury trials. Carney believed the Central District remained closed too long for the pandemic impeding the swift imposition of justice.

U.S. District Judge John W. Holcomb met Carney in 1992 at O'Melveny & Myers LLP, and they now have chambers near one another in Santa Ana. In a phone interview, Holcomb said Carney's courageous character made him a strong colleague, mentor and friend that helped him be a better judge.

"I had a circumstance where I had a criminal defendant who was not being well served by his attorney," Holcomb said. "So, I talked at length with Judge Carney about how to deal with that situation and was impressed that his primary concern was that this criminal defendant receives adequate counsel ... to make sure that justice was done."

Carney's final controversial decision came in February when he dropped, for the second time, all incitement charges against an alleged white supremacist leader, Robert Rundo, and others in the group known as Rise Above Movement. The judge ruled the defendants were unfairly prosecuted on the grounds that the equal protection component of the due process clause of the Fifth Amendment does not allow the government to arrest members of one political group and not another, such as Antifa-related organizations.

His ruling was stayed by a 9th U.S. Circuit Court of Appeals panel in February and Rundo was rearrested pending a government appeal, which is scheduled to be heard by an appellate panel on June 18. United States v. Rundo et al., 24-932 (9th Circ., filed Feb. 21, 2024).

John N. McNicholas, a Palos Verdes attorney who represented one of the defendants in that case, said in an email Wednesday that out of his many years on the federal Criminal Justice Act panel, Carney always treated others with respect and fairness, which translated to his judicial decisions.

"His rulings were always fair and reasonable," McNicholas said. "Most importantly, if the judge encountered a law which was unfair, or unconstitutional, he was willing to boldly state that fact in an appropriate order. ... We will all miss Judge Carney in the courtroom."