A federal judge in Santa Ana Wednesday dismissed an indictment against a Newport Beach physician accused in a drug distribution case, ruling that his constitutional rights to a jury trial were denied due to an order barring trials in the federal courthouse in the Central District of California during the COVID-19 pandemic.
U.S. District Judge Cormac Carney dismissed the indictment against Jeffrey Dove Olsen with prejudice, so prosecutors could not just file another case against him or seek another indictment from a grand jury. Prosecutors could appeal the ruling with the U.S. 9th Circuit Court of Appeals.
“We are reviewing the court’s order and will review our options, including the possibility of filing an appeal,” said Thom Mrozek, a spokesman for the U.S. Attorney’s Office.
Olsen was indicted in July 2017 on 35 counts alleging he prescribed and distributed “large amounts of oxycodone, amphetamine salts, alprazolam and hydrocodone to confidential sources, an undercover agent and numerous addicts without a legitimate medical purpose over the course of three years,” according to federal prosecutors who said two of the doctor’s patients died from overdoses of pain medication.
The issue came to a head this week when Olsen refused to waive any more time for his trial, but U.S. District Judge Philip S. Gutierrez, the chief judge of the Central District, refused to budge on the prohibition of jury trials at this time.
“Quite frankly, the court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse,” Carney wrote in his ruling as he noted various other federal agencies have offices that are open and that first responders still report to work, as well as employees in essential businesses.
“Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining,” Carney added. “Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors and pet groomers in Orange County are open, even indoors, with protective modifications.”
Carney also pointed out that children have returned to in-class instruction and wrote, “Even movie theaters, aquariums, yoga studios and gyms in Orange County are open indoors with reduced capacity. Yet the federal courthouse in Orange County somehow remains closed for jury trials. The Central District’s refusal to resume jury trials in Orange County is indefensible.”
Carney was also skeptical of arguments that the coronavirus poses too much of a risk to jurors, pointing out that the grand jury has used an extra-large room to continue to meet in the federal courthouse and hand down indictments. Carney also noted how the nearby Orange County Superior Courthouse resumed jury trials in June, and that other types of hearings have resumed in the federal courthouse.
Gutierrez said in an interview in the Daily Journal last month that jury trials may resume when Orange County makes it up from the red tier to the less-restrictive orange tier, Carney wrote in his ruling.
Orange County is close to making it to the orange tier, which allows for more businesses to open and to expand capacity.
“It is not a question of if the court should have held Mr. Olsen’s criminal jury trial during this stage of the coronavirus pandemic, but a question of how the court should have held it,” Carney wrote. “If it is not impossible to hold grand juries in the state court across the street from that courthouse, it was clearly not impossible to hold a criminal jury trial for Mr. Olsen.”
Carney acknowledged that the “seriousness” of the charges against Olsen tilted toward dismissing the indictment without prejudice, which would allow prosecutors to refile charges or seek another indictment.
“Indeed, the government contends that Mr. Olsen knew that two of his patients died from overdose(s) on the same pain medications he had previously prescribed, yet continued to prescribe dangerous combinations and unnecessary amounts of pain medication to his patients,” Carney wrote.
But the judge ruled that doing so would not push a change in the policy prohibiting jury trials.
“The primary factor driving the chief judge’s decision was the risk that people might get sick from the coronavirus,” Carney wrote. “But his decision was made with little or no regard for Mr. Olsen’s constitutional right to a public and speedy trial. Indeed, in his order denying the court’s request to summon jurors for Mr. Olsen’s trial, the chief judge made no mention of the constitution at all.”
Carney concluded that “barring re-prosecution in this case by dismissing with prejudice is the only sanction with enough teeth to create any hope of deterring additional delay in the resumption of jury trials and avoiding further dismissals of indictments for violations of defendants’ constitutional rights to a public and speedy trial.”
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