Judge guts deputy's felony conviction but warns of likely prison sentence
The order doesn't strike a jury's felony finding against a former sheriff's deputy, but it essentially guts the verdict by dismissing the felony allegation in the indictment.
A federal judge has agreed to dismiss a felony civil rights charge against a former sheriff’s deputy at the request of the new Trump-appointed U.S. attorney in Los Angeles.
The order from U.S. District Judge Stephen V. Wilson doesn’t strike the jury’s felony verdict, but it dismisses the felony allegation in the indictment against Trevor Kirk.
The judge, however, warned that the probation-only sentence recommended by the new prosecutor “does not match the facts of this case,” which stem from Kirk taking down and pepper-spraying a woman who was filming him arresting her friend outside a grocery store in 2023.
“Defendant committed the offense—the willful use of unreasonable force—while acting under color of law as a police officer. Police officers are entrusted with protecting the public, not harming them. By willfully using unreasonable force against J.H., Defendant broke that trust,” according to the order. “A straight probation does not sufficiently reflect Defendant’s breach of duty and the manner in which he breached that duty.”
A jury convicted Kirk of felony deprivation of rights under color of law after a three-day trial, and trial prosecutors successfully defended the verdict against a dismissal motion that Wilson rejected last month.
But after Bill Essayli took over as interim U.S. attorney in Los Angeles in April, he struck a rare “post-verdict” plea agreement that moved to dismiss the felony under Rule 48 of the Federal Rules of Criminal Procedure. Four prosecutors assigned to the case refused to sign the agreement, and three resigned their jobs completely.
Judge Wilson was skeptical of the request during a hearing last week, but the order issued on Tuesday said district courts “have limited discretion to deny Rule 48 motions.”
“Yes, there is certainly a public interest in upholding jury verdicts. But that public interest alone is not enough to justify denying a Rule 48(a) motion,” Wilson wrote.
Legal Affairs and Trials with Meghann Cuniff was the first to report the post-verdict plea agreement in Trevor Kirk’s case, and the coverage influenced mainstream outlets such as the Los Angeles Times and Daily Mail.
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The judge rejected prosecutors’ request to strike the jury’s finding that Kirk injured his victim or used a dangerous weapon, which made his crime a felony and is what initiated the judge’s skepticism. He said Rule 48 doesn’t apply to jury verdict, and prosecutors cited no other authority for him to strike a jury verdict in a criminal case.
However, Wilson also said “it is unclear why it is necessary to strike that portion of the verdict in order to eliminate the felony conviction.”
“This, of course, does not mean that Defendant is convicted of a felony,” Wilson wrote. By dismissing the felony allegation in the indictment, “all that remains in the indictment is a misdemeanor charge, which the Court will include in its judgment, per the jury’s verdict.”
Wilson cited a decision by the 9th Circuit U.S. Court of Appeals in 1983, United States v. Weber, that said a trial judge errored by not dismissing an indictment following a jury verdict at the request of prosecutors who developed “a serious and substantial doubt as to [the defendant’s] guilt.”
“This case presents the same question as Weber: whether the Government’s Rule 48(a) motion is ‘prompted by considerations clearly contrary to the public interest,’” wrote Wilson, a 1985 Ronald Reagan appointee. “If not, then the Court must grant the motion.”
A footnote in the seven-page order distinguishes “some aspects” of the Weber case from Kirk’s case, including the fact that the U.S. Attorney’s Office does not currently doubt Kirk is guilty of a civil rights crime, “It just doubts that a felony conviction is appropriate given that the case falls on the less severe end of the excessive force spectrum.”
“This is distinction is not dispositive,” Wilson wrote. “Weber is not limited to its specific facts. The Ninth Circuit in Weber granted the Rule 48(a) motion because of the Government’s duty ‘to do justice’ and the ‘wide latitude’ that prosecutors must have in deciding whether to continue with a prosecution, even after a jury verdict. Both considerations apply equally to this case.”
Wilson cited arguments he heard on May 19 from Assistant U.S. Attorney Robert Keenan, who took over Kirk’s prosecution after the trial prosecutors resigned. Keenan, a 24-year prosecutor assigned to the Santa Ana office, told the judge he disagreed with the trial prosecutors’ approach and believes they “emphasized potentially misleading evidence and made arguments not fully supported by evidence.”
The victim urged Wilson to keep Kirk’s felony conviction, and her lawyer opposed the misdemeanor reduction in a 13-page filing that said Keenan didn’t consider the victim’s opposition.
“For whatever political reasons the Government acted to change its position, it is clear that the Government is no longer making best efforts to accord J.H. her right to be treated with fairness and with respect for her dignity,” wrote attorney Caree Harper. “The government is also not acting in the best interest of the community because this deal puts Kirk back on patrol in another neighborhood soon.”
Wilson’s order said prosecutors’ position that Kirk should be convicted of a misdemeanor “is not entirely a new position” because they offered him a misdemeanor plea deal before trial that he didn’t accept. The order doesn’t mention that the offer prohibited Kirk from returning to law enforcement, which the new post-verdict plea agreement allows.
Wilson said Kirk’s case “confronts the same premise” as Weber: “the Government doubts whether the jury’s verdict is appropriate given the case’s circumstances.”
“Developing and acting on such doubts is not “clearly contrary to the manifest public interest. Quite the contrary, it is consistent with the public interest for prosecutors to dismiss cases (or, as is the case here, portions of cases) that they do not believe are worthy of prosecution,” Wilson wrote.
Wilson said the public’s interest in jury verdicts “existed in Weber, and yet the Ninth Circuit still held that the district court abused its discretion by denying the Rule 48(a) motion.”
“Rather, while the appellate courts have not defined the fine contours of what exactly counts as a consideration ‘clearly contrary to the manifest public interest,’ the available case law suggests that overturning a jury verdict is not, by itself, sufficient,” the judge wrote. “In fact, when a defendant agrees to a Rule 48(a) motion, it is not clear that there are any circumstances in which the dismissal would be contrary to the public interest.”
Kirk is to be sentenced in Judge Wilson’s courtroom on June 2.
While prosecutors are recommending probation only, the U.S. Probation Office is recommending Kirk be sentenced to 87 months in prison.
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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