DOJ asks 9th Circuit to remove judge from doctor’s criminal case, citing broken mandate
A brief says U.S. District Judge Cormac Carney is "too personally invested" in a 2017 criminal case because of his opposition to the Central District's long-over trial ban.
A federal judge upset over his colleagues’ decision to prohibit jury trials during the COVID-19 pandemic has twice dismissed a criminal drug distribution case against a doctor because he believes indefinitely delaying trial was unconstitutional.
Now prosecutors are asking the 9th Circuit U.S. Court of Appeals to order U.S. District Judge Cormac Carney in Santa Ana, California, off the case, saying he “has become too personally invested in the outcome.”
The rare request from the U.S. Attorney’s Office cites a series of rare moves by Carney, including his refusal to obey an April 2021 order from the 9th Circuit that called for him reinstate the 35-count indictment against Newport Beach physician Jeffrey Olsen and set the case for trial. The order called Carney’s omission of key facts in his dismissal order “troubling.”
But instead of setting Olsen for trial, Carney dismissed his indictment again — and again did so with prejudice, which meant prosecutors couldn’t seek another set of charges. He did so after the U.S. Supreme Court rejected a cert petition from Olsen’s federal defenders in May 2022, and he made clear that he vehemently disagrees with the 9th’s order and feels he needed to respond.
The result was a new dismissal order finalized on Aug. 22, 2022, that prosecutors say “contravenes the spirit, if not the plain text, of this Court’s first directive to reinstate the indictment.”
“This Court clearly did not intend for the district court to reinstate the indictment for the sole purpose of dismissing it again,” according to the 48-page opening appellate brief signed Tuesday by Assistant U.S. Attorney David Friedman. It says Carney was “sharply critical of both his colleagues on the Central District and this Court” and quotes him calling the 9th’s order “insulting” and “hostile.”
“The judge’s decision to ignore this Court’s mandate shows that he cannot put these views out of mind,” the brief says. Prosecutors also imply Carney won’t change his ways if the 9th Circuit allows him to continue with the case: “Reassignment may prevent further waste by ensuring that the district court complies with this Court’s mandate—rather than forcing a third appeal.”
The brief also points out that Carney said the 9th wrongly said he’d concluded trials during the pandemic would have been unsafe but “that is wrong.”
In reality, the 9th’s order “acknowledged the district court’s comments about safety in the first dismissal order, but concluded that ‘just because state courts are holding jury trials does not mean that they are necessarily holding them safely.’”
“Therefore, this Court did not misconstrue the district court’s comments about safety—it just disagreed with them,” according to the brief.
Prosecutors also cited Carney’s inclusion of photos and measurements of the grand jury rooms at the Santa Ana courthouse where his chambers are located, and his inclusion of “a photo of himself sitting in his courtroom’s witness box.”
“These actions further establish that reassignment is appropriate because ‘the judge’s feelings . . . are both well-established and inappropriately strong,’” the brief says, quoting a 2015 9th Circuit decision that ordered reassigned U.S. District Judge Robert Clive Jones of the District of Nevada reassigned from a case.
The brief says Carney’s photography and inspections mean he “has improperly engaged in his own investigation of the facts,” which could require him to recuse himself from the case pursuant to U.S. code 455, title 28. That's the law that requires federal judges recuse themselves “in any proceeding in which his impartiality might reasonably be questioned.”
The 9th Circuit and other courts have “held that judges should not rely upon facts gleaned from personal investigation or experience to decide cases, especially where the fact-finding mission occurred outside the presence of the parties.”
Read the full brief here. Olsen’s brief is due March 23. Prosecutors will have 21 days to file an optional reply, then the case could be scheduled for oral argument.
Trial judge reassignments by the 9th Circuit are exceedingly rare. The late U.S. District Judge Manuel Real was widely known for how often he’d been ordered off cases, but it rarely happens with other judges.
Tuesday’s request reflects the U.S. Attorney’s Office’s frustrations with Carney’s handling of the nearly six-year-old case, which involves a practicing physician, described by prosecutors as a “drug dealer,” who prescribed opioids to addicted patients, four of whom died.
Currently a licensed medical doctor in California, Olsen agreed to continue his trial eight times, including on two occasions after the pandemic began in March 2020. He’s been out of jail on bond since his indictment in 2017.
But when prosecutors requested a continuance in August 2020, Carney denied it amid his disagreement with his bench colleagues in the Central District of California about their vote to indefinitely halt jury trials. The ban ended up lasting 14 months, even as state courts such as Orange County Superior Court held hundreds of trials.
Carney heavily criticized his colleagues who voted for the ban, saying they were disregarding the Constitution. Olsen’s case was one of five criminal cases he dismissed because he believes an indefinite delay in trial violates the 6th Amendment and the federal Speedy Trial Act.
In contrast, U.S. District Judge Josephine Staton defended the trial ban when declining to dismiss a separate case and said Orange County Superior Court isn’t properly tracking possible COVID infections after trials conclude.
The three-judge 9th Circuit panel that reversed Carney’s first dismissal called his motives “misguided” and said he was driven by his disagreement with his Central District bench colleagues over the trial ban. The 9th agreed to en banc review, meaning all judges looked at the case, but the court ultimately sided with prosecutors again and agreed Olsen’s indictment should be reinstated. Two dissents from Trump appointees Judge Danielle Forrest and Judge Daniel Collins gave a flicker of hope to a U.S. Supreme Court cert petition that pointed out how the Central District’s willingness to convene grand juries during the trial ban “required the jailing of ever more defendants as the indictments mounted.”
“For nearly a year, criminal justice in the Central District was an assembly line with an entrance but no exit,” according to the petition. But any hope of SCOTUS intervention was dashed when the petition was rejected in May 2022.
I have covered this saga since the beginning, starting with the October 2020 hearing in which Carney first dismissed Olsen’s indictment.
I wrote about the general issue of pandemic-era trials for the ABA Journal, but most of my coverage about Carney’s dismissals published in the Los Angeles Times’ Times OC, including this initial article in January 2021, then ALM/Law.com. (I am proud to say this Times OC article I wrote about Judge Staton’s defense of the trial ban placed 1st for Best Pandemic News Story in the 2020 Orange County Press Club awards.)
The articles discuss the other cases Carney dismissed, including gun, drug and immigration charges against Jose Reyes, alias Martin Mendez-Ayala. Another defendant, Ronald Bernard Ware, was released from jail after Carney dismissed a felon in possession of a firearm charge. Two other defendants, bank robbery suspect Justin Henning and gun suspect Steven Nicholson, already were out of jail on bond when Carney dropped their cases.
The 9th has had a motion for summary reversal from prosecutors in Henning’s case fully briefed since Aug. 26 but has not yet ruled.
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