US judge again criticizes his colleagues for suspending jury trials

Once again frustrated by his colleagues' refusal to resume jury trials in the Central District of California, U.S. Judge Cormac J. Carney on Tuesday dismissed with prejudice another criminal case, citing the violations of the 6th Amendment and the Speedy Trial Act.

Defendant Justin Henning's criminal case, which was remanded to the district court for a retrial, is one of several Carney has tossed out in the last five months amid closures brought on by the pandemic. The Central District of California put an indefinite pause on jury trials last spring.

Not only were Henning and his defense attorney James R. Tedford II denied a jury trial, they were denied their request to have Tuesday's hearing conducted in person by Chief Judge Philip S. Gutierrez, Carney said during the Zoom conference, expressing his disappointment. United States v. Howard, et al., 8:16-CR-00029 (C.D. Cal., filed March 16, 2016)

"Mr. Tedford, Mr. Henning, I know you felt strongly about having the hearing in person," Carney told the parties. "I made a request to the chief judge a while ago to have the hearing in person, and he denied that request. He said that after consulting with the executive committee, he determined that nothing in the existing Continuity of Operations Plan allows an exception to be made for in person hearings for non-criminal duty matters such as the one requested."

It was the chief judge's understanding that the court staff wouldn't provide personnel support for in-person hearings not permitted under the current restrictions, Carney said.

"Needless to say, I believe the chief judge's decision is wrong. We should never close courthouses to people," Carney said. "Prohibiting in-person hearings compromises the constitutional and legal rights of litigants, and sends a terrible message to the public that what we do in federal court is really not essential.

"That is not true. What we do is essential, and our federal constitutional laws say so," Carney said.

Gutierrez could not be reached for comment late Tuesday.

Before giving the defense and Assistant U.S. Attorney Scott D. Tenley a chance to speak, Carney read aloud a statement made by Orange County Superior Court Judge Richard King when he discharged jurors that completed a trial to verdict earlier this month. King told the jury sacrifices must be made to keep the Constitution alive, and that it is the jury, "not the police, not the victims' family, not the defendant, not the defendants' family" that makes such decisions.

"I, too, wish I could have thanked 12 fine citizens of Orange County to serve on Mr. Henning's retrial, but that's not going to happen, because of the Central District's indefinite suspension of jury trials," Carney remarked.

The federal government opposed dismissal, saying the court should continue trial to May 10. If the case were to be tossed out, it should be without prejudice, prosecutors said.

During Tuesday's videoconference, Tenley told Carney the government will respectfully appeal the dismissal to the 9th U.S. Circuit Court of Appeals. He also asked Carney to post conditions on Henning or at least, stay the dismissal until appeal was completed.

"You know how much I respect you and like you," Carney told Tenley. "But as my order reflects, I believe that we denied Mr. Henning's constitutional rights to a speedy public trial, and I do not feel comfortable staying any order, or posing any types of conditions on him. The charges are dismissed, and when this hearing is over, I'll exonerate bond."

Tedford and Henning both thanked Carney for his fight to resume jury trials and in-person hearings. Tedford contended he's had cases pending in Santa Barbara, Riverside, San Bernardino and San Diego counties that were all done in person. Santa Clara County designated several courtrooms to be set aside for jury trials, Tedford pointed out.

"So for any judge or court to say it can't be done or it's impracticable, is really just, it's not true," he said.

Tedford recalled a sentencing that was held in person before Carney last summer, "and it went fine, nobody had problems, and nobody got sick."

"I don't have any malice toward the government attorneys, but I do think the U.S. attorney has been complicit with the Central District and with the presiding judge in not trying to implement any, any protocols that can be put in place to have jury trials," Tedford argued.

Henning also thanked Carney for his fairness and giving him a chance to move on now that the case was dismissed.

"This has been difficult for me, especially at this point in my career, it's kind of in the twilight of my career, and I feel like I'm on an island here," Carney responded. "It's me against all of my colleagues, and I just have such a problem with what they're doing. I took an oath to support and defend the Constitution of the United States, and I took an oath to this country to do this job. And I will, until I die or retire, I'll do everything I can to support and defend it."

Henning got disconnected for a few minutes from the videoconference, prompting more frustration from Carney, who noted he couldn't exonerate bond, absent Henning's presence.

"I was just saying that's why I felt strongly this hearing should be in person," Carney told Henning when he reconnected. "I'm having these kinds of technical problems almost every hearing. But I wanted to tell you that your bond is exonerated."