A federal appeals court has removed a judge from a criminal case after he dismissed it twice due to a ban on jury trials during the COVID-19 pandemic.
Judge Carney, an appointee of former President George W. Bush, dismissed the case for a second time in 2022, even after the circuit court ordered him to schedule a trial.
“The central district explained its choice to continue to suspend jury trials indefinitely in just four sentences in the three-page general order, decreeing that the ‘ends of justice’ outweighed every individual’s right, the government’s right, and the public’s right to a speedy trial,” Judge Carney said.
“Troublingly, the decision was not based on a directive or recommendation from a local public health official. Nor was this decision based on a directive or recommendation from the Governor of California. In fact, the August general order provides no specific evidence, facts, or figures to justify the length of the delay it imposed,” he added.
The refusal by the officials to resume the trials, even when state courts were holding trials, violated the U.S. Constitution and federal law, the judge said, necessitating the dismissal of the case against Dr. Olsen.
The doctor was charged in 2017 with illegally prescribing drugs, including oxycodone.
Judge Carney, though, said that the order did not prevent him from considering Dr. Olsen’s supplemental motion to dismiss.
He said the appeals court did not apply a new standard it outlined in one of its opinions regarding how to deal with challenges to the lack of jury trials under the Speedy Trial Act, which is aimed at protecting the rights of defendants to go on trial in a timely manner. The court also wrongly found holding a trial would have been “unsafe” but not “impossible,” the judge said.
“Under no circumstance would this Court have conducted a jury trial for Mr. Olsen if it thought that doing so was unsafe. The Court therefore has no difficulty concluding that the scope of the remand allows this Court to consider and apply the Ninth Circuit’s new legal standard to Mr. Olsen’s supplemental motion to dismiss his indictment,” the judge said.
The panel, in its new order, disagreed.
“The district court improperly defied the ‘plain language’ of our previous decision,” it said.
The order “plainly instructed the district court to ’reinstate‘ the indictment, ’grant‘ a continuance, and ’set this case for a trial.’ The district court did not comply with any of those directives,” it added later.
Reassigning cases is unusual but was warranted because there are concerns over preserving the appearance of justice and that Judge Carney would have difficulty setting aside his views, according to the panel.
Judge Carney in one hearing, for instance, said that he was “disappointed and saddened” by the circuit court ruling and described the language used by the judges as “a little hostile.” The panel said, “These statements qualify as ‘unusual circumstances’ that justify reassignment.”
The panel ordered the case remanded again to the district level, with reassignment to a different judge.
