The Daily Pilot (Costa Mesa)

http://www.dailypilot.com/articles/2007/10/02/publicsafety/dpt-acosta02.txt

Updated: Oct 01, 2007 - 22:06:19 PDT

Acosta case dismissed

Judge throws out case because Costa Mesa’s city
attorney never took an oath as a public prosecutor;
civil rights case still pending.

By Alicia Robinson

The city of Costa Mesa’s only hope of reviving a
case against student activist Benito Acosta is in
appellate court, after Orange County Superior Court
Judge Kelly MacEachern on Monday threw the case out
because of the city prosecutor’s failure to get
sworn in before filing the charges in 2006.

In a trial that began Thursday, the city was pursuing
three misdemeanor charges, alleging Acosta violated
city code at a Jan. 3, 2006, City Council meeting.

Acosta, 26, who also goes by the name Coyotl
Tezcatlipoca, was speaking against a city plan to
enforce immigration law. Mayor Allan Mansoor cut him
off when he urged people, over the mayor’s
objections, to show their support by standing up.
Police then escorted Acosta from the chambers and,
after a brief struggle, arrested him.

City Prosecutor Dan Peelman is a private attorney with
Jones & Mayer, the firm that provides Costa Mesa’s
city attorney. The fact that he never took an oath as
a public prosecutor came to light Friday in the
judge’s chambers, when MacEachern asked him if
he’d been sworn in. Peelman said he hadn’t,
according to attorneys.

Peelman was sworn in as a prosecutor at 8:15 a.m.
Monday by the Costa Mesa city clerk, but that didn’t
satisfy MacEachern. She told him the state
constitution required him to take an oath as a public
prosecutor in order to file and argue the case. The
fact that he got sworn in Monday was “somewhat of a
tacit admission that the oath was in fact
necessary,” she said. “This isn’t a harmless
error. This is a constitutional issue.”

Outside the courtroom, Acosta smiled but made few
comments, other than to say he looks forward to
returning to school and getting on with his life.

His attorneys said the fact that the case was
prosecuted has made people less likely to speak out to
the City Council, and they don’t believe the point
was to seek justice. A civil rights case against the
city, filed for Acosta by the ACLU, is pending.

“I think the [city’s] primary motivation was the
federal lawsuit and to try to convict him of something
to cut their losses,” attorney B. Kwaku Duren said.

The Orange County District Attorney in 2006 declined
to file charges alleging penal code violations,
including interfering with a police officer and
battery of a police officer.

Peelman said he’s prosecuted cases for other cities
and never had to take an oath before. He got sworn in
Monday simply to satisfy the court, he said — not
because he agreed that the oath was required.

The city can’t bring the same charges against Acosta
again, Peelman said, but before the judge’s ruling
Monday he asked an appellate court for an injunction
to prevent the case from being dismissed. If the
appellate court finds the dismissal was in error, the
case could be revived, but whether the city will want
to go forward is unclear.

City Councilwoman Katrina Foley declined to comment
because litigation is still pending.

Attempts to reach Mansoor Monday were unsuccessful.

The ACLU’s civil case is now in the discovery phase.
ACLU attorney Belinda Escobosa Helzer, who was
co-counsel for Acosta, said it will likely move faster
now that the criminal case has been resolved.

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TIMELINE

It took almost two years for student activist Benito
Acosta to be tried on charges stemming from his arrest
at a Jan. 3, 2006, Costa Mesa City Council meeting.
The case was thrown out by a judge Monday.

Dec. 6, 2005

Costa Mesa City Council considers and approves a
proposal to have city police trained to enforce
federal immigration law.

Jan 3, 2006

The community responds to the proposal vehemently,
both for and against it. student Benito Acosta, using
the name Coyotl Tezcatlipoca, protests the plan at a
council meeting, disobeys the mayor’s orders,
scuffles with police and is arrested.

February 2006

Orange County District Attorney spokeswoman Susan
Schroeder says the D.A. will not file charges against
Acosta for resisting arrest and battery of an officer,
but the city can pursue a remaining alleged municipal
code violation.

March 2006

The ACLU files a lawsuit against the city, alleging
Acosta’s civil rights were violated.

May 2006

City Prosecutor Dan Peelman files charges against
Acosta for three municipal code violations stemming
from the January meeting.
 
Sept. 27, 2007

The People vs. Benito Acosta comes to trial, after a
one-month delay because Peelman was on medical leave.

Oct. 1, 2007

The trial is thrown out by a judge because Peelman
failed to be sworn in as a public prosecutor prior to
filing the case. The case filed by the ACLU is still pending.

The paper misses a few key issues.

First, Coyotl was encouraging people to stand up several minutes after his political opponents had done the exact same thing. So, he was being told he didn't have the right to do exactly as "the other side" had done.

Second, his time to speak was cut short by Mayor Mansoor, and he was asked to leave the podium before his time to speak had expired.

Third, there was no significant "struggle" to arrest him. It was more like a planned assault on him by the police.

Fourth, the article didn't mention the political alignments of the mayor, and that there was an adversarial situation there. It was a naked abuse of power, by Mansoor, against his political opponent.