Citing suspect’s right to a speedy trial, U.S. judge drops charges in fifth criminal case as jury ban lingers

A federal judge on Tuesday dropped a fifth criminal case over the court’s pandemic-related ban on jury trials, dismissing drug, gun and immigration charges against a man jailed for nearly 15 months while defending the neighboring Orange County Superior Court’s ongoing trial procedures.

U.S. District Judge Cormac Carney, whose offices are in Santa Ana, agreed with Jose Reyes’ lawyer that the Central District of California’s indefinite halting of jury trials violates Reyes’ constitutional right to a speedy trial.

“I don’t feel reasonable people can disagree about the unconstitutionality of the indefinite suspension,” Carney said during a hearing Tuesday.

The U.S. Attorney’s Office objected to Reyes’ release and the dismissal of his criminal charges, including Carney’s decision to dismiss the charges in a way that legally prohibits prosecutors from seeking another indictment. Appearing via Zoom, Assistant U.S. Atty. Ashley Fillmore said her office is not intentionally harming Reyes and is instead simply obeying the Central District judges’ majority vote to halt trials during the pandemic.

Carney said he isn’t blaming prosecutors, but from Reyes’ standpoint, “Does it matter whether it’s the government committing the violation of his constitutional right or the court?”

“I could make an argument candidly it hurts more when judges given lifetime appointments are the ones violating his constitutional right than when it’s the government prosecutors,” Carney said. “I’m not saying that they’re acting in bad faith; they’re convinced that it’s unsafe.”

Reyes, 35, alias Martin Mendez-Ayala, was arrested in Los Angeles in November 2019 after he sold an FBI informant an AR-15 assault rifle and arranged to trade 5 pounds of marijuana and a handgun for oxycodone, according to an affidavit filed in U.S. District Court.

Investigators say he had a loaded 9 mm Glock pistol, and they found a semiautomatic handgun in his car. Reyes met the informant through “an unknown individual in Mexico who law enforcement suspects is part of a drug trafficking organization,” the affidavit said.

Reyes has previous felony convictions for drug possession and unlawful reentry into the United States, which means he’s not legally allowed to possess firearms. A federal grand jury indicted him on gun, marijuana and illegal immigration charges in December 2019.

TimesOC

Orange County federal judge dismisses criminal cases over lack of jury trials

U.S. District Judge Cormac Carney is among a minority who believe trials in the Central District of California should continue despite the pandemic and is dismissing cases as a result.

Jan. 27, 2021

Appearing before Carney in person on Tuesday, Reyes thanked the judge “for having mercy for my rights.”

He’s the second inmate in the last five weeks to have his charges dropped after Carney decided holding them any longer without allowing trials would be illegal.

Ronald Bernard Ware, a felon accused of gun possession, was released in January, about the same time Carney dismissed other criminal cases against bank robbery suspect Justin Henning and gun suspect Steven Nicholson, who were out of jail on bond.

However, as an immigrant accused of living in the country illegally, Reyes likely will remain in jail under orders from U.S. Immigration and Customs Enforcement, though federal authorities couldn’t immediately confirm that Wednesday.

Carney’s first dismissal occurred in October in a 35-count drug case against Newport Beach physician Jeffrey Olsen, who also was out of jail. Prosecutors are scheduled to argue their appeal of the dismissal to the 9th U.S. Circuit Court of Appeals on March 18.

On Tuesday, Fillmore asked Carney to stay his dismissal of Reyes’ charges until after appellate justice decides whether to reverse his dismissal of Olsen’s case, but Carney declined. He asked if her office believes Orange County Superior Court trials currently being conducted are safe, and Fillmore replied she’s aware of news articles questioning the safety of superior court trials and “whether there have been residual safety concerns or illnesses or even deaths as a result of the proceedings taking place there.”

Carney said she was referring to a TimesOC article in which his colleague U.S. District Judge Josephine Staton said “grandmothers could have died as a result” of the trials.

“Just so it’s clear, to my knowledge, no one in Orange County Superior Court has — no juror has — contracted the virus from being in court,” Carney said.

He said the single juror infection referenced by Staton involved a juror who “got the virus at home” and was ordered to leave the courthouse when he showed up for service and said he’d been infected. The other jurors all said they’d worn masks and maintained at least 6 feet of distance, and the trial resumed with no further issues, Carney said.

The judge asked if emergency first responders “interview and follow up with everybody who’s been at the scene to see whether they have the virus or not.”

“With all due respect, I think she misunderstands the purpose and practicability of contact tracing,” Carney said, calling the criticism “quite frankly, unfair.”

He said Staton’s question about a grandmother dying may have been rhetorical, “but it’s a serious point, someone dying and then holding the Orange County Superior Court responsible for someone dying.”

“What grandma are we talking about?” Carney said. “I don’t think it’s appropriate to use that type of rhetoric when you’re talking about the constitutional rights of people.”

While she criticized the court’s “contact tracing and notification,” Staton’s main point was that Orange County Superior Court can’t definitively say jurors haven’t been infected in court because of the incubation period of the coronavirus, its asymptotic spread and the court’s lack of follow up with jurors after they’ve served to see if they’ve been infected.

Superior Court spokesman Kostas Kalaitzidis confirmed in a Feb. 2 email to TimesOC that the court traces the contacts of infected jurors only when there’s evidence of too-close contact between them and other jurors.

The superior court has conducted 162 trials since June, Carney said Tuesday, and the Central District recently resumed grand jury operations in the Santa Ana federal courthouse where his chambers are located. Other federal court districts have resumed trials too, including the Southern District of California in San Diego, though in-person proceedings were again postponed on Feb. 2, until March 8.

Reyes’s lawyer, deputy federal public defender Elena Sadowsky, called it “very troubling” that the Central District won’t attempt trials.

“They’re just saying ‘pandemic’ and that’s the end of the discussion,” Sadowsky said during Tuesday’s hearing. “I understand the government’s concern, but I think we can put protocols in place to mitigate those concerns as the Orange County Superior Court has done.”

Meghann M. Cuniff is a contributor to Times OC.

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