Olsen/individualization Flashcards
You don’t even claim that the ends of justice favored denying an exclusion, do you? You didn’t even respond to the government’s merits arguments. You’re just challenging the procedure.
Yes, your honor. Some of the Olsen factors do weigh clearly in our favor, like length of detention and health status. But we did not engage the government on the merits because it is so very clear under the case law that the Chief Judges did not evaluate these factors on the merits when entering the CJOs, and thus, they cannot be considered on appeal. [Go to Zedner and Engstrom]
To win reversal, though, you have to show that the exclusion was clearly erroneous.
Yes, your honor, this Court reviews the district court’s underlying factual findings for clear error. As Olsen shows, however, a district court commits reversible error if those factual findings do not encompass relevant, non-statutory factors, and as lloyd illustrates, the court commits clear error by failing to investigate the factual basis for an exclusion. Both problems require reversal here. Additionally, contrary to the government’s suggestion in the answering brief, the standard of review does not allow this Court to go beyond the factors on which the original exclusion was based and make additional findings for the first time on appeal. As laid out extensively in the reply brief, cases like Zedner, Engstrom, Jordan, and Ramirez-Cortez hold that this Court can only affirm ends of justice exclusions based on the real reasons they were entered at the time of the exclusion.
Judges need not tick off every reason that they excluded time, must they? We’ve said that in countless contexts, including 3553(a).
A couple points on that. As an initial matter, 3161(h)(7)(a)–unlike 3553(a)–expressly requires courts to make on-the-record findings. So, though the court need not use magic words, it must say something to indicate its findings. And here, not only is there no indication in the record that the Chief Judges ever considered individualized factors, it is highly implausible that any such individualized assessment took place. The CJOs purport to exclude time in hundreds of cases simultaneously. It’s just not plausible that the Chief Judges reviewed each individual case each month to distill the strength of individual defendants’ speedy trial interests. In Mr. Orozco-Barron’s case, for instance, the government has to rely on CJOs entered on August 14, September 14, and October 14. But Judge Burns didn’t even meet Mr. Orozco-Barron until October 20, and he had no reason to learn about Mr. Orozco-Barron before then.
It’s a little silly for you to insist that the court consider the Olsen factors, when the Olsen factors had not yet been announced.
This is an important point, your honor. As the Olsen concurrence to the denial of rehearing en banc explained, the error lies not in failing to predict and apply with specificity the exact list that Olsen came up with. The problem is that the court failed to consider any relevant nonstatutory factor. And it should have been obvious to the court that at least some of those nonstatutory factors were relevant. That said, Olsen’s 7-factor test is still enlightening here, because it belies any suggestion that when assessing an ends-of-justice exclusion, the pandemic is dipositive. The list shows that, even during a pandemic, facts bearing on a defendant’s individual interests in a speedy trial—like detention and health—must still be assessed and weighed.
Finally, it is significant that many CJOs were issued after Olsen, and none of them apply the Olsen factors. That’s because it is functionally impossible to apply them to hundreds of cases simultaneously. It’s hard to see how a mode of excluding time that makes it functionally impossible to assess relevant non-statutory factors is not lawful.
• But surely the Chief Judge knew how some of the factors fell. Like, he was aware that people in his district were detained and that some of them had high-risk comorbidities. Why couldn’t he just decide that, under the particular facts and circumstances in the district at that point in time, no defendant’s speedy trial interests could trump the pandemic?
Because Olsen makes clear that the pandemic, and its effects are trials, are not dispositive. That was one of the grounds for reversal in Olsen: The court had only considered whether trial was impossible. It had not reviewed a series of case-specific factors bearing on defendants’ and the government’s particularized speedy trial interests. If the pandemic were dispositive, as the CJOs treat the pandemic, then that part of Olsen would make no sense. It would not matter whether Dr. Olsen were detained, or what he was accused of. And here, the CJOs treat the pandemic as dispositive, not as an exercise of discretion after engaging the facts of individual cases, but as a matter of course in every case.
Cases that actually went to trial in Fall 2020 starkly illustrate this. In those cases, trial clearly was not impossible, and the district had determined that trying those cases was safe. Yet the CJOs still purport to exclude time in those cases.
But what I’m saying is, it seems plausible to me that the district court did consider factors like detention or health risks. He just determined that the pandemic would necessarily outweigh those factors.
A couple of responses to that, your honor. First of all, there is really no evidence in the record that the Chief Judge was thinking about things like detention and health risks in entering these orders, but there is strong evidence that the Chief Judge thought the pandemic was dipositive. there is no indication that the Chief Judge considered those kinds of factors in entering the CJOs. The CJOs include NO findings about defendants’ interests, e.g., detention or health risks. And at the motion to dismiss hearing, Chief Judge Burns said that the pandemic “suspended the ordinary operation [of] the Speedy Trial Act” ER-22, and that “the bottom line was that it was impossible, a fact that the Ninth Circuit recognized in Olson, for the Court to convene Mr. Orozco’s jury trial any time before tomorrow,” ER-26. This violates Torres, which—at a minimum—says that courts can essentially never conduct a proper ends-of-justice analysis without considering detention.
Additionally, it is not within a court’s discretion to decide that the pandemic outweighs a defendant’s speedy trial interests, without knowing any of the facts relevant to a defendant’s speedy trial interests. This is true under Lloyd, which requires courts to investigate the factual basis of their exclusions, and under general abuse of discretion principles, whereby it is an abuse of discretion not to know the facts on which a discretionary determination is based and not to actually exercise discretion.
Well, maybe the pandemic was more severe in fall 2020 in S.D. Cal than the circumstances we encountered in Olsen.
I don’t think that could explain the difference here, your honor. In Olsen, the district’s judges had unanimously determined that the pandemics risks were so severe that trials had to be suspended. Here, during the fall of 2020, our district’s judges unanimously agreed that the pandemic’s risks had abated to the point where trials could be resumed.
Olsen was different because, there, the court was attempting to deny an exclusion and dismiss the case–a truly exceptional situation. But by my lights, time almost always should be excluded when it comes to the pandemic. I don’t see why we would apply the same, exacting standards to a decision to exclude time.
Olsen drew no such distinction, your honor. To the contrary, Olsen provided that list of factors to give general guidance whenever a court assesses an ends of justice exclusion. Specifically, Olsen explained that these factors are “relevant” “in the context of the pandemic,” and that courts should “generally consider” them. And maybe, when judged on an individualized basis, the pandemic will normally win out. But the statute requires courts at least to ask the question. And that’s where the CJOs go wrong here.
But can’t we see in the record that the Chief Judge was considering detention when he wrote those orders? I mean, he apologizes specifically to your client about how long it’s taking and says, “I know it’s hard to be detained right now.” The court just found that the pandemic’s health hazards weighed heavier. How is that clear error?
I believe your honor is referring to a transcript from December. The comments were made after the relevant period. They do not reference the STA or purport to supplement any of the CJOs’ findings. Nor could they. Engstrom squarely holds that “the reasons stated must be the actual reasons that motivated the court at the time the continuance was granted.” Engstrom, 7 F.3d at 1426. And it is implausible that, in entering simultaneous exclusions in hundreds of cases, Judge Burns considered Mr. Orozco-Barron’s individual speedy trial interests. This is particularly clear because, when the court issued the August 14, September 14, and October 14 CJOs, the court had never even met Mr. Orozco-Barron and had no reason to learn about his case. And those three CJOs cover over 70-days of non-excludable time.
But can’t we infer from those comments–comments of the Chief Judge in your case, in your record–that the judge was not callous to the needs of detained defendants? That he at least considered detention in weighing the defendants’ interests?
Your honor, we certainly are not saying that Judge Burns was unaware of or didn’t care about the hardships defendants’ faced during the pandemic. But the question here is whether Judge Burns incorporated those concerns into individualized, on-the-record findings to support time exclusions in Fall 2020. And it’s clear from the record that he did not. These comments come from December. But to prevail, the government has to defend CJOs issued on August 14, September 14, and October 14. At those times, Judge Burns had not even met Mr. Orozco-Barron.
Plus, individualization matters when it comes to detention because detention means more to some defendants than to others. A healthy, vaccinated 20-year-old is not in the same position as an unvaccinated, 55-year-old diabetic. And the CJOs don’t account for those nuanced distinctions, let alone facts like the seriousness of the offense or the length of detention, etc.
But none of these are pandemic cases. Can’t one, overriding factor like a once-in-a-lifetime emergency be enough?
This Court’s pandemic era cases in Olsen and Torres make clear that that is not the case.
But the court is permitted to supplement the record at the motion to dismiss stage, right? And didn’t the court’s remarks make clear that the reason why the court continued the case and excluded time was because of the pandemic’s effects?
Yes, your honor, the court did make clear that it was relying on CJOs. But that doesn’t fix the individualization problem, for two reasons. First, at the motion to dismiss stage, the court had the opportunity to say that it was also relying on individualized factors, but it didn’t. And second, regardless of what the court said at the hearing, it is clear under the circumstances that the court did not enter the CJOs for any reason individualized to Mr. Orozco-Barron’s case. Over 70 days’ worth of exclusions had already passed before Judge Burns even met Mr. Orozco-Barron, let alone learned anything about his case. And under Engstrom, a court may not supplement ends-of-justice findings with post-hoc rationalizations that did not actually motivate the original exclusion.
But isn’t the pandemic a case-specific factor that applies in every case?
In a sense, your honor, but the problem is not that the Chief Judges did consider the pandemic as one individualized factor. It’s that it didn’t consider any other factors. And they didn’t even have the information to know whether other factors might be relevant in any given case. Olsen makes clear that the pandemic can’t be the only factor. And Lloyd tells us that courts must make the necessary appropriate inquiry to assess competing interests.
Shouldn’t defense counsel have raised hardships to defendants or the Olsen factors at the motion to dismiss stage?
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This case is indistinguishable from Pashall, where the government sought a general order from a chief judge and a district court later adopted it.
(1) Whatever else is controls, can’t control on continuances.
(2) Olsen squarely addresses this factual scenario—the pandemic—and it holds that whether trial is possible is not the only factor. It’s not hard to see how one would distinguish the pandemic from the snowstorm in Pashall.
