9th Circuit considers O.C. federal judge’s first pandemic-related case dismissal

Outside the U.S. 9th Circuit Court of Appeals.

By Meghann M. Cuniff

March 24, 2021 3:30 PM PT

A U.S. 9th Circuit Court of Appeals panel appeared to endorse the Central District of California’s pandemic prohibition on jury trials during a recent hearing, with one justice saying an Orange County trial judge’s constitutional stance against the ban was his way of “sending a message to his colleagues.”

Judge Mary Murguia didn’t indicate how she and her two colleagues will rule, but their questions showed deep skepticism over U.S. District Judge Cormac Carney’s decision to dismiss a 35-count criminal indictment against a Newport Beach physician accused of illegally supplying his clients with prescription drugs.

“He repeatedly referred to his colleagues and sending a message to them. But I’m not sure he did a wholesome review of all the factors that other judges would do,” Murguia said during the March 18 hearing.

Still, justices also questioned how state guidelines for business during the pandemic can apply to federal courts, and Murguia wondered if indefinitely delaying trials violates the court’s directive that continuances “must be limited in time.”

Murguia, Judge Morgan Christen and Judge Barbara Lynn, a federal judge from Texas, must decide whether to reverse Carney’s decision and reinstate the charges against Jeffrey Olsen, who has been out on bail since his arrest in 2017.

Olsen is accused of prescribing opioids to drug-addicted patients, including four who died. His case is the first of five criminal cases Carney has dismissed because of the Central District of California’s indefinite suspension of jury trials, which the judge believes violates the Constitution’s guarantee of a speedy trial.

One day after the 9th Circuit panel heard oral arguments via video, the Central District announced all courthouses would reopen effective March 22. In-person hearings in criminal cases and emergency civil cases can proceed at the discretion of judges, but non-emergency civil cases must continue to proceed by video or phone.

Jury trials are set to return May 10, but the previous indefinite ban is the key issue the 9th Circuit is considering when deciding whether Carney is correct it violates criminal defendants’ right to a speedy trial.

“We don’t have an end in sight. Shouldn’t we be concerned?” Christen said.

Carney has repeatedly cited the ongoing jury trials in Orange County Superior Court as a reason the Central District should resume trials.

Christen said the difference between federal and state court approaches to trials is a “disturbing hole in the record, if you will.”

But she also questioned whether state court trials are safe.

“I’m not trying to disparage anybody, but it is a deadly virus — a very deadly virus — in California. Do we have any evidence the state courts have conducted jury trials safely?” Christen asked.

“There’s certainly no evidence to the contrary, despite the government’s citation of a few newspaper articles,” answered Olsen’s lawyer, Deputy Public Defender James Locklin.

The articles include a Feb. 3 TimesOC article in which Carney’s colleague at the federal courthouse in Santa Ana, U.S. District Judge Josephine Staton, defended the Central District’s trial ban and said Orange County Superior Court isn’t properly tracking possible COVID-19 infections after trials end. She questioned whether “grandmothers could have died as a result” of the trials, which Carney later criticized as irresponsible rhetoric.

Staton is among the majority of Central District judges who support the ongoing ban; U.S. District Judge David O. Carter has previously stated his support for Carney and the minority position of resuming trials immediately.

Meghann M. Cuniff is a contributor to TimesOC.

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9th Circuit considers O.C. federal judge’s first pandemic-related case dismissal

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