9th Circuit reversal in pandemic jury trial dismissal could foreshadow 4 pending appeals

In an ominous sign for four other criminal defendants, a Newport Beach physician is due back in an Orange County federal courtroom after an appellate court reversed a judge’s dismissal of his charges.

The U.S. 9th Circuit Court of Appeals determined April 23 that U.S. District Judge Cormac Carney erred when he dismissed Jeffrey Olsen’s 34-count indictment because of the court’s pandemic-related ban on jury trials, sharply rebuking a constitutional stance that had become somewhat of a crusade for Carney.

The three-judge panel showed no sympathy to Carney’s steadfast belief that the Central District of California’s refusal to allow jury trials for 14 months violated defendants’ constitutional right to a speedy trial.

Instead, they called his reasoning “troubling” and said they had no difficulty determining that his dismissal of Olsen’s indictment was a “miscarriage of justice.” Carney was adamant that the right to a speedy trial can only be suspended if a trial is impossible, which judges called “an unnecessarily inflexible interpretation of a provision meant to provide necessary flexibility to district courts to manage their criminal cases.”

“We find no difficulty in concluding that the district court’s failure to grant the government’s motion and subsequent dismissal of Olsen’s indictment, under the unique facts of Olsen’s case and the Central District’s suspension of jury trials, resulted in a miscarriage of justice,” according to the 24-page opinion.

Olsen was the first of five men whose charges were dismissed by Carney because of the jury trial ban. 

Bank robbery suspect Justin Henning and gun suspect Steven Nicholson were, like Olsen, already out of jail on bond, but Ronald Bernard Ware, a felon accused of gun possession, was freed from custody upon Carney’s dismissal in January. Gun, drug and immigration suspect Jose Reyes, alias Martin Mendez-Ayala was also to be released under an order from Carney, but the 9th Circuit halted that and ordered Carney to reconsider. 

TimesOC

9th Circuit scrutiny leads to judge’s conflicting views on suspect’s release

Judge’s view of the Central District of California’s pandemic-related ban on jury trials, which ends May 10, lingers as the 9th Circuit considers five criminal cases he dismissed because of his opposition to it.

April 21, 2021

Meanwhile, jury trials are to resume in the Central District on May 10, and prosecutors have put their appeal on hold in Nicholson and Ware’s cases, pending the final outcome of the Olsen appeal or an order from Carney.

In an email to TimesOC on Tuesday, Carney said he expects “there will be more appellate filings, perhaps even to the Supreme Court, before the mandate in Olsen is issued.”

“I will not do anything in Olsen or in any other case until a mandate is issued,” Carney wrote.

Olsen’s attorneys at the federal defender’s office have not yet said if they’ll petition the U.S. Supreme Court to review the 9th’s decision. According to its website, the high court accepts just 1% of those requests annually.

Under investigation since January 2011, Olsen was indicted in July 2017 for allegedly distributing prescription drugs to addicted patients and for supplying false information to the U.S. Drug Enforcement Administration. Prosecutors allege he knew at least two patients fatally overdosed on his prescriptions, but he continued overprescribing anyway.

He’s been free on bond since shortly after his arrest, and for nearly four years he opposed any looming trial dates as too soon. That changed after the pandemic hit. With trial already continued eight times, Olsen suddenly opposed the U.S. Attorney’s Office’s next postponement request. Prosecutors argued the majority of Central District judges voted to indefinitely postpone jury trials as COVID-19 infections raged in Southern California, so the decision on whether to go to trial was essentially out of their hands.

Carney, however, was adamant the indefinite ban on trials violated the constitutional rights of defendants, and he pointed to ongoing jury trials in nearby Orange County Superior Court as evidence they weren’t impossible during the pandemic.

But the 9th said impossibility simply isn’t the proper legal standard, and that the Central District’s suspension of jury trials was done with obvious care.

“The pandemic is an extraordinary circumstance and reasonable minds may differ in how best to respond to it,” according to the opinion. “The District Court here, however, simply misread the Speedy Trial Act’s ends of justice provision in dismissing Olsen’s indictment with prejudice.”

Meghann M. Cuniff is a contributor to TimesOC.

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