Right to Speedy Trial Under 6th Amendment May Be Suspended Indefinitely During Covid, Holds 9th Circuit in Denying En Banc Review

Timothy Kowal, Esq.
February 2, 2022

What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again.

At least as it concerns criminal jury trials, you can get a good sampling of judges’ disparate feelings in United States v. Olsen, 21 F.4th 1036 (9th Cir. Jan. 6, 2022), where the Ninth Circuit recently denied en banc review of a panel decision reversing a dismissal for failing to comply with the Speedy Trial Act.

The criminal defendant, Olsen, was a doctor accused of illegally prescribing opioids. The prosecution spent six years amassing evidence before indicting Olsen, and Olsen sought several continuances to review the tens of thousands of pages the prosecution had amassed against him. When the pandemic hit, Olsen obtained another continuance. But but late 2020 when local federal grand jury and county jury trials were resuming, Olsen wanted to get on with it. The district court denied the prosecution’s continuance motion, and because the district court refused to provide a jury, dismissed the case with prejudice.

Tensions run high in each of the four opinions: the majority per curiam decision reversing the district court and reinstating the case, two concurrences by Judges Murguia and Bumatay, and a dissent by Judge Collins. There is too much going on to fairly summarize all of it. So I will only cover a few things that jumped off the page at me:

  • The majority did not analyze the Sixth Amendment. At all. I was taken aback by this. This is a Constitutional issue. Yes, the Sixth Amendment right to a speedy trial primarily is enforced by the Speedy Trial Act, which is what the majority addresses. Fortunately, Judge Bumatay does address the Sixth Amendment in his concurrence. And quite impressively at that, providing a detailed historical analysis of the right to a speedy trial dating back before Magna Carta. Bookmark Judge Bumatay’s concurrence.
  • Still, I am alarmed the majority simply skipped any attempt at the Constitutional analysis. Judge Bumatay is, too: “The panel neglected to analyze Olsen's Speedy Trial Clause claim even though the district court's dismissal also hinged on a constitutional violation. See United States v. Olsen, 995 F.3d 683, 691 n.8 (9th Cir. 2021). That was a mistake. What satisfies the Speedy Trial Act may still violate the Sixth Amendment, and vice versa. See United States v. Thirion, 813 F.2d 146, 154 (8th Cir. 1987) (“Sixth amendment challenges receive separate review distinct from the Speedy Trial Act.”); United States v. Gonzalez, 671 F.2d 441, 442 (11th Cir. 1982) (“The rights of criminal defendants under the Speedy Trial Act and the sixth amendment are distinct[.]”); United States v. Bilsky, 664 F.2d 613, 617 (6th Cir. 1981) (There is a “critical difference ... between the dismissals available under the Speedy Trial Act and the Supreme Court interpretations [of the Sixth Amendment right].”).”
  • On the Sixth Amendment analysis on the right to a speedy trial, Judge Bumatay reasons that “At its core, the Speedy Trial Clause ensures that defendants are not locked up in jail indefinitely pending trial. This enforces the guarantee against arbitrary detention. But since Olsen wasn't detained pretrial and the delay here was not long enough to justify dismissal according to our precedent, no violation occurred. That said, this case would be much different if Olsen had been incarcerated during the COVID-19 pandemic and did not receive the trial he was entitled to under the Constitution. In that situation, the constitutional analysis would be significantly different in my view.” I remain skeptical that a criminal defendant may be deprived of a speedy trial so long as the defendant is not detained. But Judge Bumatay calls this a close question, and I agree with that at least.
  • The bulk of the analysis in the various opinions has to do with whether the “impossibility” exception is met under the Speedy Trial Act. That is, whether it would be “impossible” to hold a trial without a continuance. The district judge, Judge Cormac Carney, interpreted “impossibility” literally, and concluded a jury trial certainly was not impossible if other local courts are holding them. The panel here rejected the actual-impossibility standard in favor of a more flexible standard.
  • Interestingly, Bumatay agrees with Judge Collins’s dissent about impossibility: “it was “[c]learly ... possible” to hold jury trials.” Footnote 27: “Perhaps Judge Collins is correct that we should have called this case en banc to fix the erroneous interpretation of the “impossib[ility]” exception. Ultimately, I opted against that route because I conclude that the “miscarriage of justice” exception justifies the delay here.” Judge Bumatay reasoned that “given the lack of government culpability and the relatively short two-month continuance at issue, an ends-of-justice continuance would have been appropriate here.”
  • What kicked off the high tension was the fact that Judge Carney appeared to be using this case to make a point to his colleagues. With the support of a majority of its judges, Central District had issued General Orders suspending jury trials at the outset of the pandemic. By late 2020, however, Judge Carney had come to the conclusion it was time to resume criminal jury trials. But his colleagues had not. Here is what happened after Judge Carney denied the prosecution’s continuance motion: “The district court therefore requested the Chief Judge of the Central District to summon jurors for Olsen's trial. The Chief Judge promptly rejected this request and explained that the majority of the Central District judges had approved a general order to suspend jury trials....” The Ninth Circuit majority and Judge Murguia did not like these optics at all.
  • The judges in the majority and concurring opinions all point to the fact that Olsen requested or agreed to several continuances as support for denying his request for a speedy trial by late 2020. Precedent supports using this as a factor. But as the dissent notes, Olsen those continuances related to Olsen’s attempt to process the large volume of documentary evidence the prosecution had amassed. The prosecution had enjoyed six years and all the resources of the federal government to compile and analyze this. I am troubled by the notion that a criminal defendant should have to risk his constitutional rights in seeking additional time to review that evidence. Besides, procedural rights in the Constitution are designed to protect the defendant against government abuse. Not the other way round. To that end, defendants must be allowed to apply them at their prerogative.
  • Judge Collins’ dissent raises a number of strong challenges to the majority:
  • The “impossibility” analysis was “bootstrapped” on the flawed General Order: There was no showing that holding a trial was “impossible” except that the Central District had issued a General Order suspending all jury trials. Judge Collins says of this: “The panel's opinion thus treated the General Order itself as an externality that rendered a trial “impossible,” thereby satisfying the statutory standard,” and in so doing, “the panel's analysis rests on a bootstrap argument that permits a wholesale evasion of the impossibility standard.” Judge Collins points to a number of problems with this “bootstrapping”:
  • First, Judge Collins says: “the “suspending” of jury trials in the General Order was entirely open-ended, even though, under long-settled Ninth Circuit precedent, the Act requires than any “ ‘ends of justice’ continuance be specifically limited in time and that there be findings supported by the record to justify each ‘ends of justice’ continuance.” United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) (emphasis added).
  • Second, Judge Collins says: “because the General Order is just that—a general order—it does not, and cannot, substitute for the case-specific findings that are required to be made under § 3161 of the the Act. Zedner v. United States, 547 U.S. 489, 509, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (noting that § 3161(h)(7) “demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings”).
  • Judge Collins also notes that, while the General Order certainly sufficed in early 2020, by late 2020 more justification was needed, given many businesses and government functions had resumed operations.
  • Judge Collins also notes that the majority reversed the burden of proof by looking to the criminal defendant to prove holding trials was safe, rather than to the government to prove they were not: “Because the Government was the one moving for a continuance, it had the burden to establish that the continuance was justified under the Act.”

These are very interesting perspectives about one of the core principles of our justice system. While I agree with Judge Bumatay that this is a close call, I am persuaded by Judge Collins’ dissent. At a minimum, the Ninth Circuit should have granted en banc review here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.