Wow. Just wow. A shot, or make that a judicial ruling, was just fired that should be heard in every courtroom and courthouse in the nation. United States District Judge Cormac Carney did the right, but unthinkable – he dismissed a prosecution brought by the United States Government for failure to bring the defendant to trial in a timely fashion.
He did this by squarely addressing the imperatives of the Corona-virus pandemic.
The Sixth Amendment to the United States Constitution guarantees an accused person the right to a speedy and public trial. Under federal law, a defendant must be brought to trial within 70 days of his first court appearance, typically his indictment. If he is not brought to trial, then the case against him is dismissed.
Such dismissals almost never occur. That is because for every rule there are many, many exceptions. In the speedy trial context, courts count as “excludable” time requests for a delay sought by a defendant. You can waive your speedy trial rights.
But even if you don’t waive your rights, a judge can make a finding in the “interests of justice” to toll, or stop, the speedy trial clock from running. It happens all the time, especially now when fear grips the land.
In the case of United States of American v. Jeffrey Olsen, the defendant, a physician, was charged with illegal distribution of oxycodone and other powerful narcotics. He was charged in 2017. If convicted, he would serve a long period of imprisonment.
Mr. Olsen’s case is pending in the United States District Court for the Central District of California, Southern Division. The federal courthouse is located in Orange County. Across the street from the federal court is a state courthouse.
Once the pandemic hit, the chief administrative judge in the California court tolled the speedy trial clock in “the interest of justice,” citing concerns about Covid-19, and pegging court reopening to Gov. Gavin Newsome’s arcane reopening protocol. Dr. Olsen did not consent to the tolling of the clock. He wanted his trial, pandemic or not.
The judge sided with Dr. Olsen. Read what the judge had to say, and think about it for a moment. See if you can possibly avoid the conclusion that he is indisputably right:
“The Central District denied Mr. Olsen his constitutional right to a public and speedy trial. It did so not because it was impossible to conduct the jury trial as is required by the Sixth Amendment. It did so because it was fearful people would get sick from the coronavirus. But no emergency or crisis, not even the coronavirus pandemic, should suspend the Sixth Amendment or any of our constitutional rights. The Constitution guarantees these rights to us during all times, good or bad. Because Mr. Olsen was denied his Sixth Amendment right to a public and speedy trial, this Court now must dismiss the charges against him, and that dismissal must be with prejudice.”
Put briefly, if the pandemic is the new normal, then the old Constitution requires that we adjust. There is no public health exception to the Bill of Rights.
Judge Carney’s decision will no doubt be appealed by federal prosecutors to the United States Court of Appeals for the Ninth Circuit. But, at least for the time being, it stands as a high-water mark in Sixth Amendment jurisprudence. The Constitution is alive and well, and so, too, are the rights of the accused.
I’ll be curious to see what Connecticut does.
In the Olsen case, the judge’s decision was made easier by the fact that the state courthouse across the street, drawing largely from the same jury pool, had conducted 80 or so criminal jury trials this summer and fall. Presumably what’s safe enough for jurors in state court across the street ought to be safe enough in the more august setting of a federal court.
But in Connecticut, there hasn’t been a criminal jury trial since at least early March. As near as I can tell, there has been but one jury trial in the state since then, a civil case in the Bridgeport federal court last month. Only two of 34 potential jurors questioned expressed serious concerns about viral infection.
So long as we are able to find jurors ready, willing and able to serve, the Constitution requires that criminal defendants be given speedy trials.
This appears to fall on deaf ears in both the state and federal courts of Connecticut, the Constitution State.
Last month, Chief Justice Richard Robinson wrote an oped piece that appeared in The Hartford Courant. He announced that jury trials would resume in Connecticut in November. Apparently, plenty of prosecutors didn’t get the memo. I spoke to a few last week who had no idea when they would resume trials. The State’s Judicial Branch remains a deep sea of indecision and communicates little, if at all, to stakeholders about its plans.
The pandemic is the new normal. Crime is a constant. We must adjust.
Judge Carney noted that when Mount St. Helen blew its stack in Washington, speedy trials were suspended for two days. In New York City, speedy trials were suspended for 20 days in the wake of the 9/1l terror attack. Are we to believe that our pandemic should result in an indefinite suspension of our fundamental law?
I’m 65. My doctor counsels against a return to court in the foreseeable future. That is a call my wife and will make when the calendar call comes in. But if some of us are unprepared to answer the bell when the Constitution rings, then others will come forward. Covid-19 will only end the republic if we let it.