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Defending trial ban, U.S. judge says O.C. state courts aren’t tracking coronavirus infections

The Plaza of the Flags stands near Orange County Superior Court.
(Don Bartletti / Los Angeles Times)

A federal judge defending the court’s pandemic-related prohibition on jury trials said her stateside counterparts in Orange County Superior Court aren’t tracking jurors after trials end, so it’s impossible to know how many people have been infected through them.

“How do you know it wasn’t spread throughout the community because of the trial? How do you know someone’s grandmother wasn’t hospitalized because she came into contact with the juror?” said U.S. District Judge Josephine Staton.

Speaking to attorneys during a recent Zoom hearing, Staton said the last few months of increasing coronavirus infections in Orange County means “someone is doing something wrong, not right” and justifies the decision to indefinitely halt jury trials.

Staton was responding to a defense attorney’s opposition to a trial delay, but she also was addressing her colleague U.S. District Judge Cormac Carney’s ongoing criticism of the ban. Carney has dismissed four criminal cases, including a robbery case and two gun indictments, because he believes the indefinite ban on trials violates the accused’s constitutional right to a speedy trial.

He’s accused his colleagues who support the ban of misconduct, and he’s repeatedly cited Orange County Superior Court’s ongoing trials as evidence trials can happen in the federal Central District of California.

“It’s me against all my colleagues. I just have such a problem with what they’re doing,” Carney said Jan. 21.

In her hearing a week later, Staton made clear she’s with the majority of judges who support the ban. She indicated that Carney was once, too, because she said the initial vote to end jury trials in March was unanimous.

“I think there’s still a majority of the court — a vast majority — that has that opinion,” Staton said.

Staton’s comments are the first public refutation of Carney’s stance on trials outside a 60-page brief from federal prosecutors who are appealing his dismissal of a 35-count indictment against a Newport Beach doctor accused of illegally supplying drugs to patients.

They’re also the first public acknowledgment that Orange County Superior Court, which has held at least 145 trials since June, isn’t tracking juror infections long term, and court officials only know of one because the juror voluntarily called to tell them of the diagnosis after trial.

“So in other words, all the measures that one can take to determine that the gatherings are safe — those measures being contact tracing and notification — those don’t happen,” Staton said. “The only people that they know about are employees.”

U.S. District Judge Cormac Carney is among a minority who believe trials in the Central District of California should continue despite the pandemic and is dismissing cases as a result.

Defense attorney Kate Corrigan told Staton the juror who reported a COVID-19 infection served in a trial with Orange County Superior Court Judge Rick King. King is, coincidentally, the judge Carney quoted in three dismissal hearings last month espousing the virtues of pandemic-era jury services. Carney said he wished he could have extended similar accolades to jurors in his trials, “but that is not going to happen because of the Central District’s indefinite suspension of jury trials.”

Asked about Staton’s comments, Orange County Superior Court spokesman Kostas Kalaitzidis said in an email the court traces contacts with jurors and employees “where there is evidence that contact between those who have tested positive and appropriate distancing was compromised.

“The investigations that have been conducted thus far have determined that there was no close contact with other jurors that would warrant follow-up,” Kalaitzidis wrote.

Kalaitzidis declined to elaborate, but his statement indicates Staton is correct and jurors are not monitored post-trial or asked to tell the court if they end up infected.

“Any instance in which the court is made aware that a juror has tested positive during or post trial, the court implements tracing protocols as set forth by local, state and federal guidelines,” according to the email.

Assistant U.S. Atty. Joseph McNally indicated his support for the continued ban, telling Staton infections among employees in the Central District’s four federal buildings, which include the Santa Ana courthouse, the Riverside courthouse and Los Angeles federal buildings on 1st Street and on Spring Street “have increased exponentially over the last three or four weeks.”

“I don’t think there’s a sufficient foundation that just because superior court is doing jury trials that that necessarily means it’s safe,” McNally said. “It’s not just Orange County in general. We’re seeing it in the places we work and we’re seeing it in the courthouse where the trial would be held.”

Defense attorney Kate Corrigan told Staton the infected Orange County Superior Court juror who notified the court served in a trial with Judge Rick King. King is, coincidentally, the judge Carney quoted in three dismissal hearings last month espousing the virtues of pandemic-era jury services. Carney said he wished he could have extended similar accolades to jurors in his trials, “but that is not going to happen because of the Central District’s indefinite suspension of jury trials.”

In Staton’s case, Corrigan represents neurosurgery specialist Lokesh Tantuwaya, one of 13 charged in an alleged kickback scheme involving Pacific Hospital in Long Beach. As the prosecutor, McNally asked to move the upcoming trial from Feb. 23 to August because of the current pandemic prohibition on jury trials, but Corrigan objected at Tantuwaya’s request, citing his speedy trial right. 

In the Jan. 28 hearing, Staton pressed Corrigan about whether she’ll be ready for a February trial, noting that “at least as recently as three weeks ago” Corrigan wanted an October trial date. Corrigan said her readiness depends on a possible outstanding issue that needs to be investigated, which Staton said warranted a trial delay as McNally requested. 

But even without that point, Staton said delaying the trial still would be necessary because of the Central District’s ongoing trial ban. Staton said she was ready to proceed with trials in August, but infections spiked and have continued to increase. She wants to resume as soon as possible, so she met with Orange County Superior Court judges a few months ago to discuss their trial protocols. She said she doesn’t “want to cast aspersions” on Orange County Superior Court, but she doesn’t see evidence that trials are safe. 

The judge also questioned the superior court’s mask policy, which allows witnesses to remove them during testimony, and its effectiveness against asymptomatic carriers.

“That witness will just be maskless testifying for several hours, and someone has decided that Plexiglas is sufficient?” Staton asked.

“That has been what I’ve seen,” Corrigan answered.

Staton scheduled Tantuwaya’s trial for May 11 and said there’s “at least a shadow of a possibility we could actually have a trial at that time, depending on vaccine roll-outs and other things like that.”

By that time, the U.S. 9th Circuit Court of Appeals may have ruled on Carney’s first dismissal over the trial ban, in the drug case against the Newport Beach physician. A three-judge panel is set to hear oral argument on March 18 via video. It’ll be the first time the 9th’s weighed in on pandemic-era jury trials, but Chief Justice Sidney Thomas already has said he supports halting them for COVID-19 safety reasons. In a Sept. 8, 2020, letter sent to all Central District judges, Thomas praised Central District Chief Judge Philip Gutierrez’s decision to keep jury trials off limits.

Thomas, who’s based in Billings, Mont., said resuming jury trials “prematurely” in other districts was “causing coronavirus spread.”

“So, as difficult as it is, I greatly appreciate you and your colleagues continuing to maintain safety in the courts,” according to Thomas’ letter, which was reviewed by TimesOC. “It is critical to the successful resumption of operations.”

Meghann M. Cuniff is a contributer to TimesOC.

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