Amid protests, new prosecutors defend 'post-trial' civil rights plea with ex-deputy
A federal judge questioned whether he has the authority to strike a jury's felony finding in a civil rights case against a former Los Angeles County sheriff's deputy.
A subordinate for the new Trump-appointed U.S. attorney in Los Angeles says a judge can’t refuse to vacate a jury verdict if he only believes prosecutors are acting against public interest.
A seven-page brief from Assistant U.S. Attorney Robert Kennan argues the misdemeanor “post-trial agreement” reached with a former sheriff’s deputy convicted by a jury of a felony civil rights crime “is fair and just.” It says U.S. District Judge Stephen V. Wilson should strike the jury’s findings that Trevor Kirk used a “dangerous weapon” and caused “bodily injury,” which is what elevated Kirk’s excessive force conviction to a felony.
“The Government attempted to resolve this case as a misdemeanor before trial, but the defendant needed a third-party (i.e., the jury) to get him to reconsider his conduct in a new light,” Kennan wrote.
Kennan wrote the brief at the order of Judge Wilson, a 1985 Ronald Reagan appointee who on May 6 questioned his authority to strike the jury’s finding.
Keenan cited a 9th Circuit U.S. Court of Appeals decision in 2000 that said the only standard “recognized as possibly being appropriate to such cases is ‘whether the motion was clearly contrary to manifest public interest.’”
But he also said the 2003 ruling from the 7th Circuit rejected the public-interest exception “on separation-of-powers grounds, holding that a court may not ‘properly refuse to dismiss a prosecution merely because [the court] was convinced that the prosecutor was acting … contrary to the public interest.’”
“The Government objects to any ‘manifest public interest’ limitation of the type that [the 2000 ruling] suggests could ‘possibly’ exist,” Keenan wrote.
The 2000 9th Circuit case said a federal judge in San Diego erred when he refused prosecutors’ request to dismiss four charges in a five-count indictment. Keenan also cited a 2003 7th Circuit decision that directed a judge to dismiss two of three counts against a police officer in an excessive force case as prosecutors requested.
Neither case involved defendants already convicted by a jury. On Thursday, however, Keenan filed a five-page supplemental brief that cited a 1983 9th Circuit case in which prosecutors sought to dismiss an indictment after a jury conviction.
Kennan also cited a drug case in the Central District in which prosecutors moved to strike a jury’s finding that the crime involved more than 400 grams of fentanyl. U.S. District Judge Stanley Blumenfeld Jr., granted the request on Feb. 28, 2023, and the 9th Circuit upheld the judgment and sentencing on July 31.
Keenan said prosecutors in that case requested dismissal after the U.S. Attorney General at the time, Merrick Garland, issued a memorandum “that established a new set of policies regarding charging, pleas, and sentencing,” and directed prosecutors to review unresolved cases.
In Kirk’s case, a jury convicted him of misdemeanor deprivation of rights under color of law on Feb. 6 after a three-day trial. Jurors agreed he injured his victim or used a dangerous weapon, which made his crime a felony.
Bill Essayli, the new interim U.S. attorney for the Central District of California in Los Angeles, authorized a rare “post-trial agreement” last month that allows Kirk to plead guilty to a misdemeanor, serve a year on probation and return to policing.
Four prosecutors assigned to Kirk’s case did not sign the document, and three joined at least a dozen other colleagues who’ve submitted their resignations since Essayli took over.
Kennan’s new brief has only his name and Essayli’s name. They also are the only prosecutors named on a 31-page sentencing memorandum that uses still images from surveillance video and police body-worn camera to highlight the victim’s conduct and explain why they believe the felony case the former prosecutors pursued at trial was wrong.
They also argue against the U.S. Probation Office’s Pre-Sentence Report recommendation that Judge Wilson sentence Kirk to 87 months in prison. The recommendation is based on Kirk’s aggravated assault conviction, which stems from his use of pepper spray, but Keenan wrote in his 31-page memo that “the evidence in this case does not show that defendant sprayed J.H. in the face ‘with intent to cause bodily injury.’”
“He used the pepper spray after verbal commands and physical control efforts failed,” Keenan wrote. “While placing J.H. in the back of a patrol car, defendant responded to J.H.’s continued protests by saying, ‘All you had to do was listen.’ When J.H. opined that defendant was ‘mad’ because she was videoing him, defendant explained that, ‘No, I’m mad because you’re not listening.’”
Kennan also questioned whether Kirk seriously injured the woman, who according to a physician “sustained bruising (i.e., contusions) and abrasions to her scalp, right wrist, and right arm” as well as “chemical conjunctivitis and contact dermatitis as a result of the pepper spray to her face and head.”
“Although these injuries may have involved some pain and discomfort, they are temporary in nature and did not involve ‘extreme’ pain or ‘protracted impairment’ of a odil organ.” Kennan wrote.
“There was also an allegation and evidence relating to a reported “blunt head injury,” but that remained vague and ill-defined even at trial,” Keenan continued. “The only evidence of any head injury was J.H.’s self-report and a bruise/contusion observed on the scalp.”
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The victim said she struck her head on the ground after Kirk threw her, but Keenan said video “does not show J.H.’s head hitting the ground when he forcibly threw her to the ground (it was cushioned by landing on her left shoulder and upper arm), and she fell on her left side, not her right.”
Kennan also said while “there was evidence at trial” of a wrist injury, “Oddly, the Government did not allege a wrist injury in the indictment (opting instead to vaguely allege ‘other physical injuries’), and we hedged at trial when describing it in our opening statement only as a ‘potential fracture of her wrist.’”
Probation’s 87-month prison sentence recommendation includes punishment for an obstruction of justice of finding that Keenan said is “improper.” Kirk wasn’t “clearly false or misleading” when he said the victim “attempted to hit him and that she turned and took a ‘blading’ or ‘fighting stance.’”
“The video recordings show that as defendant approached her, J.H. brought her right hand out from behind her back and swatted away defendant’s left arm as he reached out to grab her left hand, and J.H. stepped back in a ‘bladed’ stance. Oddly enough, both the indictment and PSR both say that J.H. turned away from defendant at that time. So, the PSR is internally inconsistent in saying defendant’s report on that point is false.”
Protestors gathered outside the U.S. Attorney’s Office in downtown Los Angeles on Tuesday and urged Judge Wilson to reject Kirk’s plea deal and sentence him for the felony conviction.
“We’re pleading again for the judge to stand by his oath and do what's right,” said Pastor Brian Johnson of True Life Community Church.
“We’re not giving up, and we will be at that sentencing hearing on Monday,” Raycine Ector of the anti-police group Cancel the Contract said.
Cancel the Contract founder Waunette Cullors asked “how can you get a plea bargain after you've been found guilty?”
“How are they doing that for all the Black and brown people locked up here for every other thing? No, they’re not doing that,” Cullors said. “We want him to be prosecuted. We want him to serve time like every other felon does, and that's just exactly who he is.”
Protestors noted that Kirk is white and the victim is Black.
“When it comes to the policing in this country, apparently if it’s done to Black people, it’s OK,” Ayinde Love of Gifted Arts and Activism said.
Love called for Judge Wilson to sentence Kirk for a felony and for the Commission on Peace Officer Standards and Training to decertify Kirk as a law enforcement officer.
“Even if Judge Wilson does not choose to do the right thing, you guys still have the authority to act,” Love said.
Nick Wilson, spokesman for the Los Angeles Sheriff’s Professional Association, said the woman Kirk arrested “wasn’t an innocent bystander filming an arrest, but the suspect in an ongoing robbery who resisted.”
“The act of holding up a camera phone does not absolve you of your crimes or create a magic force field that protects you from arrest. Deputy Kirk’s restrained use of appropriate force should never have been prosecuted in the first place (see long-held legal standard on the application of force found in Graham v. Connor),” Wilson said in a press release. “Ironically, many of the same people trying to stoke outrage over the plea deal are the same radical activists who would applaud a sentence reduction for a gang member or murderer – the public shouldn’t fall for it.”
Kirk is due in Judge Wilson’s courtroom at 11 a.m. on Monday.
Court documents:
Jan. 29 prosecutors’ trial memorandum
March 17 prosecutors’ opposition
April 10 stipulation to continue sentencing
April 13 victim’s objection to sentencing delay
May 1 post-trial plea agreement
May 13 response to Judge Wilson’s order
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