A recent surprise ruling throwing out criminal charges against the purported founder of a Southern California-based white supremacist group over concerns that prosecutors didn’t pursue similar cases against left-wing Antifa members has brought widespread attention to a veteran federal judge with a reputation for never shying away from tough decisions.
After U.S. District Judge Cormac J Carney threw out his case, the fate of Robert Paul Rundo — a Huntington Beach man alleged to have founded the Rise Above Movement and accused of recruiting and training others to attack political rivals at rallies in Orange County, San Bernardino County and Northern California — is currently in the hands of the 9th Circuit Court of Appeals, which has ordered him to remain in custody pending an appeal of the dismissal of the criminal charges.
Carney’s decision to dismiss Rundo’s case and immediately order his release drew widespread attention. In his ruling, Carney acknowledged that Rundo and other Rise Above Movement members likely promoted “reprehensible” ideas and “likely committed violence,” but said far-left members of Antifa “engaged in worse conduct” but were not targeted for prosecution.
It amounted, Carney determined, to selective prosecution and a violation of Rundo’s constitutional rights.
“I’m a big believer in the rule of court, so I would like to be in a position to release him right now, let him walk out that door, but I can’t do that because the 9th Circuit told me I can’t,” Carney said after Rundo was re-arrested. “It bothers me. It doesn’t matter whether Mr. Rundo is a good man, a bad man, whether he did something wrong here or not. We’re all entitled to our Constitution and no one’s following the rules and I’m at a loss to understand it.”
Carney’s willingness to take such a stand came as no surprise to those familiar with his long judicial career.
Veteran defense attorney Kate Corrigan described Carney as a humble but intellectually gifted judge who is willing to hold the government to account if he believes any shortcuts were taken or misconduct occurred.
“He is somebody who is courageous in terms of being willing to take positions that he believes are grounded in the law, whether they may be viewed as popular or not,” Corrigan said.
Carney labors over sentencing decisions, reads over everything presented to him and sharply questions the attorneys involved in his cases, Corrigan said.
“I always tell clients, ‘Win, lose or draw, we are in a fair courtroom,’” the defense attorney added regarding her cases before Carney.
Carney first came to prominence as a college athlete, playing receiver at UCLA where he led the team over a three year period beginning in 1980 with 108 catches while also winning two academic All-America awards.
After graduating from Harvard Law School and spending time as a business litigation attorney, Carney began his judicial career in Orange County Superior Court, before being nominated to the federal bench in 2003 by then-President George W Bush.
In an interview with a Register reporter at the time, Carney described football as “the foundation for everything…
“There are so many things I learned playing football at UCLA that helped get me here,” Carney said. “It reinforced the principle that you can achieve great things if you work hard and are in the right place at the right time.”
In 2009, Carney shocked the legal community by tossing the government’s high-profile and closely watched options-backdating prosecutions of two Broadcom executives. The judge found that misconduct by a prosecutor had intimidated witnesses who could have refuted the government’s case.
“You are charged with serious crimes and, if convicted on them, you will spend the rest of your life in prison,” Carney explained at the time. “You only have three witnesses to prove your innocence and the government has intimidated and improperly influenced each of them. Is that fair? Is that justice? I say absolutely not.”
Five years later, Carney waded directly into the capital punishment debate, issuing a scathing ruling attacking California’s death penalty system.
In sparing a murderer who had spent two decades on death row, Carney described California’s capital punishment system as “arbitrary and dysfunctional.”
The ruling was reversed on appeal, but in the years since Carney’s concerns have been echoed by many, including Gov. Gavin Newsom when he issued a moratorium on executions.
A willingness to hold prosecutors and investigators to account has been a unifying theme through many of Carney’s most high-profile rulings.
In 2017, Carney presided over a case that drew national attention when it came to light that FBI agents were notified of alleged images of child pornography on the computer of a Newport Beach doctor by Best Buy computer-repair technicians.
Carney ended up throwing out much of the evidence in the case after determining that an FBI agent had made “false and misleading statements” while seeking a search warrant of the defendant’s home.
“A person’s home is sacred to me,” the judge said at the time. “And I’m not trying to get on my high horse, but, you know, close is not good enough for me when you’re asking to search someone’s home.”
A year later, a frustrated Carney dismissed drug charges against a defendant who claimed he was unfairly targeted by Orange County Sheriff’s Deputies, after attempted murder allegations against him in state court were dismissed in the midst of the jailhouse informant scandal.
Carney questioned why federal prosecutors were filing charges involving such a small amount of drugs — 37.7 grams of methamphetamine — particularly in the midst of a then-active federal investigation into the use of snitches in Orange County.
“I am absolutely baffled the government charged this case and pursued it, particularly with the baggage of the witnesses,” he told prosecutors at the time.
In recent years, concerns over a potentially racially insensitive comment and disagreements with colleagues over jury trials during the pandemic led to scrutiny of Carney.
In 2020, Carney briefly served as the chief judge of the Central District of California — the top-ranking federal judicial position in an area spanning both Orange and Los Angeles counties — but ended up voluntarily stepping down over comments that some considered racially insensitive.
Carney had described a Black woman who was serving as the court’s top administrative official as “street smart,” according to the Associated Press, then while speaking to the clerk compared the people criticizing his language to “the reprehensible conduct of a police officer putting his knee on someone’s neck.”
After apologizing to the clerk and returning to his previous judicial duties, Carney became embroiled in the debate over how quickly to re-start normal court operations in the midst of the Coronavirus pandemic.
Frustrated that other court systems — like the Orange County Superior Court — were already back to holding jury trials, Carney in 2021 began dismissing criminal cases on the request of defense attorneys who were alleging speedy trial violations.
Prosecutors argued that Carney had “weaponized” the cases he dismissed in order to “combat his colleagues” on the bench who were taking a more cautious approach.
The 9th Circuit Court of Appeals ultimately agreed, finding the defendants hadn’t been robbed of their rights since the court closures were “unique circumstances” that happened “in the interest of public health.”
The appellate judges described Carney’s dismissal of the cases as “troubling.”
In the Rundo case, Carney has made clear that he is not concerned about the 9th Circuit judges potentially disagreeing with him.
A previous attempt by Carney in 2019 to toss the case by arguing the Anti-Riot act, which it was charged under, is too broad in regulating free speech was overruled by the 9th Circuit.
Following Carney’s recent ruling, federal prosecutors scrambled to re-arrest Rundo — who allegedly has a history of fleeing the country — and after getting an arrest warrant late from a magistrate judge once again took Rundo into custody. The 9th Circuit Court of Appeals has since issued an order blocking a lower court from releasing him again for the time being.
Prosecutors have argued that unlike Rise Above Movement members, the left-wing protestors did not train together before the rallies, did not use social media to recruit “soldiers” and did not travel to multiple protests “to assault people.”
But even as the appellate judges have become involved in the case, Judge Carney has continued to raise concerns about the treatment of Rundo and the actions of prosecutors.
Carney is ethically barred from discussing ongoing cases and was unavailable for comment, but in a hearing late last week the judge made his feelings about the case clear.
He questioned whether, having dismissed the indictment against Rundo, the government had a right to once again arrest him, and to hold him without the normal court appearance and opportunity for a bail review hearing that other people taken into federal custody receive.
Federal prosecutors defended the arrest warrant, explaining that they believed the charges against Rundo were still “operative” since the criminal case is under appeal.
Should the appellate court once again ultimately decide that the criminal case against Rundo will proceed, it will likely be in the courtroom of another judge.
Carney’s current caseload is being reassigned to other judges, Corrigan noted, ahead of Carney’s expected upcoming retirement.
But that hasn’t stopped the judge from keeping a close eye on the Rundo case and making it clear that if it weren’t for the 9th Circuit Court of Appeals order, he would immediately release Rundo from custody.
“People can disagree with my decision,” Carney said. “I respect that. You can take me up (to the appellate court). The 9th Circuit can criticize me. God knows they have done it enough. But throwing out fundamental rules of criminal procedure and going out to arrest someone without pending charges, that’s frightening to me.”
