I've previously blogged about the Justice Department's effort to vacate a LA County sheriff's deputy's federal civil rights conviction for using excessive force. After District Judge Wilson of the Central District of California rejected that effort to vacate, both the officer and the Justice Department appealed. And yesterday, the Ninth Circuit appointed UC Berkeley Law Dean Erwin Chemerinsky to defend the judgment below—while also allowing me and co-counsel Caree Harper to file an amicus brief on behalf of the victim supporting the judgment below. The Ninth Circuit's order sets up judicial review of the important issue of whether federal prosecutors have unconstrained power to dismiss federal charges at any time for any reason.
I've previously described the facts of the case, involving a police officer's take-down of bystander, J.H. When she began recording the officer making an arrest on her phone, the officer responded by slamming her to the ground and pepper spraying her. You can see for yourself: the relevant events were captured on video. The Justice Department filed a civil rights charge against the officer and, following a jury trial in February, he was convicted. But later Judge Wilson rejected the Department's request for a probationary sentence as too lenient. Instead, he imposed a four-month prison sentence, in light of the officer's clear betrayal of the public trust. Unhappy with that sentence, the Department then moved to dismiss the entire case under Fed. R. Crim. P. 48(a). On behalf of J.H., Ms. Harper and I objected. And Judge Wilson agreed with our position, denying the the motion to dismiss:
The motion is a direct attempt to override the Court's decision to sentence Defendant to four months in prison. Indeed, after the Court rejected its request for probation and imposed a custodial sentence, the Government responded by seeking to dismiss all charges—ensuring Defendant serves no time at all. 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.
