Will SCOTUS revise the Central District’s COVID ban on jury trials? 1st conference is Thursday

The United States Supreme Court will consider on Thursday whether to review the constitutionality of the 14-month ban on jury trials imposed by the Central District of California during the pandemic.

Bolstered by a split circuit decision on en banc review, the cert petition addresses not only new issues regarding COVID-19 restrictions, but long-standing issues regarding the right to a jury trial, with a brief caveat amicus on May 3 that the appeal ruling “allows district courts to use the ends of justice provision to suspend expeditious trial rights indefinitely.”

“Failing to consider the importance of a speedy trial not only exerts coercive pressure on defendants, whether guilty or innocent, but also contributes to the erasure of criminal jury trials from American courtrooms. “, according the brief by Jay R. Schweikert and Laura A. Bondank of the Cato Institute.

The filings cite other Supreme Court rulings related to COVID, and Schweikert told Law.com the issue is “not just about health and safety restrictions.”

“It’s more fundamentally about, ‘Can the courts circumvent a law that’s supposed to give concrete meaning to a constitutional guarantee?'” Schweikert said in a Monday telephone interview.

The dissent on Judge Daniel Collins’ en banc review also represents what one of Collins’ colleagues said was a big change with the appointment of so many new judges in recent years.

Dissent “has definitely increased” as more judges want to “express their displeasure that a case didn’t go to the bench,” Judge John B. Owens said during a March lunch with the section. of Orange County of the Federal Bar Association.

The dissenting justices “basically send an ad or brief to the Supreme Court saying, ‘Hey, Supreme Court, take a look at this,'” Owens said.

Case among 5 dismissals

Filed on April 5 by Stuart Banner, director of the UCLA Supreme Court Clinic, cert’s petition on banning jury trial cites Collins’ dissent throughout, beginning with the second paragraph. It is one of dozens of weekly court conferences and petitions are often discussed at several conferences before a review decision is announced.

Schweikert said the most likely outcome of Thursday’s conference is for the court to issue a call for response from the United States Solicitor General’s office which opens a new window for filing amicus briefs after the US Department of Justice withdrew its initial response.

“The fact that this came from an en banc decision is certainly much more significant than I think this issue has taken in any other case in recent history,” Schweikert said.

Collins’ dissent sparked a lengthy agreement from two of the panel’s justices – Mary H. Marguia and Morgan B. Christen – who indicated they were not bound by the order regarding further dismissals of criminal cases, as well as an agreement from former President Donald Trump. -appointed Judge Patrick Bumatay who distinguished between cases involving defendants who are not detained like the one before the court and cases involving defendants who are in prison awaiting trial.

The case underlying the CERT petition involves U.S. District Judge Cormac Carney’s dismissal of a 34-count indictment against physician Jeffrey Olsen, accused of illegally prescribing oxycodone and other drugs to addicted patients. Olsen was indicted in 2017 and decided to delay his trial several times, twice after the Central District halted trials in March 2020 due to COVID-19. But when prosecutors asked for a delay in August 2020, Carney denied it, then dropped the case at Olsen’s request two months later.

The judge, who is part of the Southern Division of the Central District in Santa Ana, lamented that nearly all workplaces in Orange County had reopened and the nearby Orange County Superior Court was holding trials before a jury for months, but the central district still wouldn’t allow them.

Carney dismissed Olsen’s indictment with prejudice, meaning the case could not be refiled, then issued similar dismissals in four other criminal cases while the trial ban persisted, all of which are on appeal awaiting the outcome of the Olsen case. The Ninth Circuit panel that overturned the dismissal called Carney’s motives “misguided,” saying he was motivated by his disagreement with his colleagues on the Central District bench over the trial ban and said that he should have at least dismissed the case without prejudice due to the prosecutor’s lack of misconduct.

Collins, a 2019 Trump appointee, disagreed with the support of fellow Trump appointee Danielle Forrest, but he agreed with the opinion of the panel on a fundamental aspect of the decision: that Carney erred in dismissing Olsen’s indictment with bias rather than without.

The United States Attorney’s Office pointed out in its opposition to Olsen’s request that the Ninth Circuit suspend the trial court’s mandate pending the Supreme Court’s motion, writing that “it does not there is no reasonable prospect that five Supreme Court justices would conclude otherwise.”

“Not a single other judge in the country has dismissed an indictment with prejudice due to the suspension of trials,” according to the brief by Bram Alden, Chief of the Criminal Appeals Section of the U.S. Attorney’s Office in Los Angeles. “There is therefore no precedent to support defendant’s claim, let alone a division of the circuit warranting review by the Supreme Court.”

Still, the panel — U.S. District Chief Judge Barbara Lynn of the Northern District of Texas joined Marguia and Christen — granted Olsen’s request for a stay in January, meaning Carney can no longer take up the case again. Olsen until the Supreme Court petition has been decided.

Debate on the burden of proof

Banner of 42-page petition argues that Carney had to dismiss with prejudice so prosecutors wouldn’t just refile the case.

“Dismissal with prejudice was the only way to obtain meaningful appellate consideration of this important issue, so the District Court did not abuse its discretion in choosing this remedy,” according to the motion.

Professor Stuart Banner of UCLA Law School.

He calls Collins’ dissent “quite fair” and warns that the panel’s decision “distorts the text of the Speedy Trial Act beyond recognition” by allowing courts to make trials “impossible” simply by prohibiting. It infuriates or creates circuit divisions, including over which part bears the burden of proof regarding a time exclusion under the Speedy Trial Act, which Congress enacted in 1974 to enforce the Sixth Amendment.

“All the other circuits to answer the question place the burden on the party seeking the extension – here, the government – but the Ninth Circuit has placed the burden on the defendant,” Banner wrote, adding, “Rarely so much of errors were packed into a single notice.

The petition went on to describe the Central District’s convening of grand juries during the trial ban as making the problem “even more Kafkaesque” – a reference to novelist Franz Kafka – and said it “required the imprisonment of more and more accused as the indictments went up”. .”

“For nearly a year, criminal justice in the Central District was an assembly line with an entrance but no exit,” Banner wrote.

Banner cited recent Supreme Court rulings that overturned COVID restrictions related to workplace safety, evictions and in-person worship. Including South Bay United Pentecostal Church v. Newsom, which overturned a Ninth Circuit decision in which Collins dissented. Collins’ dissent in the jury trial decision cited this dissent, along with the Supreme Court’s vacancy of another Ninth Circuit ruling on religious gathering restrictions, Tandon v. Newsom.

Schweikert said the Cato Institute was interested in the case because of its importance to its strategic priorities regarding “the virtual disappearance of criminal jury trial” and the erosion of the Speedy Trial Act by indefinite extensions.

“If this ruling stands, it will really infuriate what is truly a serious crisis,” Schweikert told Law.com.

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