The constitutionality of federal courts halting jury trials during the pandemic could soon be before the U.S. Supreme Court.

Federal defenders in the Central District of California say they plan to petition the high court after the U.S. Court of Appeals for the Ninth Circuit rejected a request to review en banc its overturning of a trial judge's criminal case dismissal. A stay request filed Tuesday with the Ninth Circuit says the propriety of halting trials "cannot be disregarded as a frivolous matter." 

"On the contrary, this is a nationwide issue that will affect a multitude of cases pending during the pandemic, not to mention how courts will deal with inevitable future crises," according to the 11-page request, signed by Deputy Federal Defender James Locklin.

The request follows two lengthy concurrences and dissent over the en banc review denial that pitted two Ninth Circuit judges appointed by President Barack Obama against two appointed by President Donald Trump.

Judges Daniel Collins and Danielle Forrest, who both joined the court in 2019, likened jury trial bans to prohibitions on in-person worship, private school instruction, home Bible studies and stay-at-home orders, and cited recent cases involving each. 

"We should not have let the Speedy Trial Act be counted among Covid's latest casualties. I respectfully dissent from our refusal to rehear this case en banc," according to the dissent by Collins, which Forrest joined.

In their concurrence, Judges Mary H. Marguia and Morgan B. Christen, who both joined the court in 2011, said Collins and Forrest's dissent was legally incorrect, misinterpreting the Speedy Trial Act and misstating case law. They reiterated their original decision reversing the lower court's dismissal, which was issued in April in agreement with U.S. District Judge Barbara M.G. Lynn, sitting by designation from the Northern District of Texas.

The dismissed case involves a Newport Beach physician, Jeffrey Olsen, accused in a 34-count indictment of illegally supplying his patients with opioids. The Ninth Circuit panel said U.S. District Judge Cormac J. Carney in Santa Ana wrongly said the Speedy Trial Act can only be halted if trials are impossible, and that he dismissed the case to express his discontent with his colleagues for halting jury trials. 

"The record memorializes that the district court's misguided motive for dismissing Olsen's indictment with prejudice was to force resolution of the trial judge's ongoing disagreement with the Central District's decision to suspend criminal jury trials due to the COVID-19 pandemic," according to the concurrence. It quoted Carney: "I think we have to use this case to try to expedite this issue for everybody's sake." 

However, Marguia and Christen also indicated that they aren't tied to the order regarding other criminal case dismissals, three of which are pending appeal before the circuit, all from Carney's court. 

"Nothing in our opinion minimizes the importance of the constitutionally guaranteed right to a speedy trial, and we will surely be presented with future cases in which the balancing required by the Speedy Trial Act will present different results," according to the concurrence. 

Judge Patrick J. Bumatay, a Trump appointee, sided with Marguia and Christen but wrote his own concurrence that said Olsen's 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," Bumatay said.

One of the four cases dismissed by Carney under the Speedy Trial Act involved an in-custody inmate, Ronald Bernard Ware. Ware was freed from custody after Carney dismissed his case in January 2021. The judge denied prosecutors' request to impose a bond as they appeal the dismissal. 

Olsen's request this week to stay the circuit's mandate cites the differing concurrences and dissent as well as the length of time the circuit took to issue them—nearly six months. It also cites the Central District's recent three-week trial suspension, announced Jan. 3, and says those factors "reflect the complexity and importance of whether the Central District's [unprecedented] ban on jury trials—one of the most fundament rights guaranteed by the Constitution—has violated defendants' speedy-trial rights."

"There is good reason to believe that the Supreme Court will both grant certiorari in this case and ultimately disagree with all or part of this Court's opinion," according to the request, which cites the injunction the Supreme Court issued against California' stay-at-home orders in April 2021 as well as the expedited arguments heard last week over vaccine mandates.

According to the request, "Given the Supreme Court's significant and understandable interest in ensuring that individuals' rights are not infringed by executive-branch actions during the pandemic, it should have even more of an interest in ensuring that its own branch of government is not violating the fundamental rights of criminal defendants to jury trials."