Judge rejects DOJ's post-sentencing dismissal request in police civil rights case
Ex-Deputy Trevor Kirk is to report to prison in Aug. 28 after U.S. District Judge Stephen V. Wilson said dismissing his criminal case is "contrary to the public interest."
Calling the U.S. Department of Justice’s request “contrary to the public interest,” a judge has declined to dismiss a criminal case against a former Los Angeles County sheriff’s deputy already convicted and sentenced to prison for violating a woman’s civil rights through excessive force.
Prosecutors want the indictment dismissed not because they reconsidered it or found new evidence, but because of “disagreement with the Court’s decision to sentence Defendant to four months in prison,” U.S. District Judge Stephen V. Wilson said in an 11-page order signed Friday and filed Monday.
Wilson called the dismissal motion “a direct attempt to override the Court’s decision to sentence Defendant to four months in prison.”
“Using Rule 48(a) in this way is contrary to the public interest,” the judge wrote, referring to the Federal Rules of Criminal Procedure governing dismissal motions.
“Put simply, the Government disagrees with the Court’s sentencing decision and is using Rule 48(a) to erase it. It has even acknowledged that this is its reason for seeking dismissal,” he continued.
Wilson quoted Assistant U.S. Attorney Robert Keenan’s argument that the public interest is “what the government says is the public interest in this courtroom.”
“The Government is wrong—at this stage, it does not have unbounded discretion to dismiss cases. The history of Rule 48(a) makes that clear,” Wilson said.
Kirk is to surrender to the Federal Bureau of Prisons on Aug. 28 to begin his sentence.
Wilson’s decision is the first significant courtroom loss for the U.S. Attorney’s Office in Los Angeles under Bill Essayli, a President Donald Trump loyalist whose appointment in April has led to resignations and complaints about unorthodox and politically motivated decisions that conflict with DOJ policy.
Ciaran McEvoy, spokesman for the U.S. Attorney’s Office in the L.A.-based Central District of California, told me in an email that the office has no comment.
A jury on Feb. 6 convicted Kirk of deprivation of rights under the color of law for a confrontation with Jacey Houseton on June 24, 2023, outside a Winco grocery store in Lancaster, about 70 miles northeast of Los Angeles.
Wilson, a 1985 Ronald Reagan appointee, previously questioned a rare post-verdict plea deal Essayli reached with Kirk that called for the felony jury conviction to be reduced to a misdemeanor, but he gave Essayli a way to secure a misdemeanor by keeping the jury verdict but dismissing the underlying felony charge.
The judge’s order this time, however, flatly rejects dismissal and essentially says prosecutors want the case dismissed even though they believe Kirk is guilty.
The order quotes Keenan calling Kirk’s conduct “minimal, though excessive” and the use of force “just barely excessive.”
“There is no reason to believe the Government’s position on this point has changed. The Government has uncovered no new evidence and presents no new arguments,” Wilson wrote.
Keenan, a longtime Santa Ana-based prosecutor now working in the DOJ’s Civil Rights Division in Washington D.C., cited “misgivings” and “discomfort” with Kirk’s conviction as a reason for dismissal, which Wilson said “is inconsistent with the record.”
“If the Government truly thought that Defendant’s conviction was not supported by adequate evidence, it could have moved to dismiss the entire case back in May. It did not do so. Since then, nothing has changed,” Wilson wrote.
Wilson cited three cases in which judges rejected Rule 48 dismissal motions.
One is United States v. Thorpe, a kidnapping case in which Washington, D.C-based U.S. District Judge Richard J. Leon in February 2023 denied a motion “because its purpose was to reduce the defendant’s sentence.”
Another is United States v. Olvero-Hernandez, an illegal immigration case in which the late San Diego-based U.S. District Judge Gordon Thompson Jr., said in 2012 that prosecutors were using the motion to “circumvent” his denial of a motion to withdraw a guilty plea, which he said was “clearly contrary to the manifest public interest” because it “undermine[d] the authority of the Court.”
The third is United States v. Freedberg, a pornography publishing case in the District of Utah in which the late U.S. District Judge J. Thomas Greene in 1989 denied a motion made after a guilty plea but before sentencing because he said dismissal “would constitute violation of principles of separation of powers,” as it would “interfere[e] with judicial discretion.”
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In his new order, Wilson said the justification for deferring to prosecutorial discretion “wanes” after a defendant is sentenced because “there is simply not much prosecutorial discretion left to exercise.”
He said case law establishes that the discretion “may outweigh” the judiciary’s interest in enforcing sentence if prosecutors have new information doubting guilt, but prosecutors made clear they have no such doubt, including by stating so at the May 19 hearing on the request to reduce the felony conviction to a misdemeanor.
“Instead, the record shows that the Government brings this motion to overrule the Court’s sentencing decision,” Wilson wrote. “This is not speculation or inference—it is the Government’s stated position. It explicitly argued that prison time for Defendant would be ‘unreasonable’ and ‘intolerable,’ and that if it had known that prison time was on the table, it never would have moved to dismiss only the felony charges.”
Wilson said Keenan argued “the magic words” at the Aug. 4 dismissal hearing when he said the trial evidence was insufficient to support the verdict, but he offered no explanation for the claim and “did not identify any gaps in the evidence or any reason why the evidence was insufficient.”
Wilson also took issue with Keenan’s argument that his now-former colleagues who prosecuted Kirk through trial misled the jury.
The judge said he “heard those arguments” and “[t]hey were not so misleading as to retroactively render the trial evidence insufficient to support the verdict.”
”Tellingly, this was the Government’s position just four months earlier, when it opposed Defendant’s motion for acquittal,” Wilson wrote, citing the March 17 opposition brief “vigorously arguing that the Government’s trial arguments were not misleading.”
Wilson did not mention that the prosecutors who wrote the brief and argued it in court left the case after Essayli and Keenan filed the motion seeking to reduce the felony verdict to a misdemeanor. Three later resigned their jobs completely.
Keenan argued in court last week that denying a Rule 48 dismissal is permitted only in cases involving prosecutorial harassment, but Wilson’s order said the U.S. Supreme Court’s finding in 1977 in Rinaldi v. United States said protecting a defendant against prosecutorial harassment was a reason to deny in addition to “if the motion is prompted by considerations clearly contrary to the public interest.”
“That the Court separated the ‘public interest’ limitation from the ‘prosecutorial harassment’ limitation shows that the latter is not the only basis for denying a Rule 48(a) motion,” Wilson wrote.
The judge also said Keenan “is not correct that the ‘public interest’ is defined in the eyes of the Executive branch.”
“Nothing in Rinaldi or United States v. Ammidown—the case Rinaldi cited when reaffirming the public interest limitation to Rule 48(a)—demonstrates an intent for the Executive to define ‘public interest’ by its own terms,” Wilson wrote. “To the contrary, Ammidown expressly provides: ‘we do not think Rule 48(a) intends the trial court to serve merely as a rubber stamp for the prosecutor’s decision.’”
“Instead, ‘the judge should be satisfied that the agreement adequately protects the public interest,’ not just the interest of the Executive,” Wilson wrote, bolding and italicizing “public interest” himself for emphasis.
Kirk has appealed his judgment and conviction to the 9th Circuit U.S. Court of Appeals, but he has not asked for bail pending appeal since Wilson rejected his request in the trial court on July 21.
Meanwhile, attorney Caree Harper, who represents Kirk’s victim, joined with former U.S. District Judge Paul G. Cassell, a law professor at the University of Utah, in asking the 9th Circuit to appoint them as special counsel to defend Kirk’s convictions because the DOJ won’t.
Cassell, a George W. Bush appointee who was a judge from 2002 to 2007, joined Harper in a 26-page brief to Wilson that opposed the dismissal motion. He’s also opposing the DOJ’s dismissal request in the criminal fraud case against Boeing, Inc., in the Northern District of Texas.
Court documents:
Aug. 8 Judge Wilson’s order rejecting dismissal
Aug. 5 motion to intervene in 9th Circuit appeal
Aug. 3 opposition supplement
Aug. 1 prosecutors’ supplement
July 30 victim’s opposition to dismissal with photo of victim
July 29 prosecutors’ motion to dismiss
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