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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.

October 02, 2007|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.

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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.

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