Acosta lawyers say city waffles

Lawyers for Benito Acosta, the Costa Mesa man accused of disrupting a city council meeting nearly two years ago, said city attorneys are contradicting themselves as they appeal the dismissal of the case against him. In the coming weeks, a panel of three superior court judges will decide whether to grant the city’s appeal to reinstate the case that was tossed out last year.

Acosta, who was arrested at the meeting after refusing to leave the speaker’s podium, had the criminal charges against him dismissed last year when it surfaced that prosecutor Dan Peelman had not sworn an oath that Judge Kelly MacEachern considered vital. Because he was not sworn in as a prosecutor the judge ruled that Acosta’s due process rights were violated. The defense contested the oath was designed to hold city prosecutors to a higher ethical standard than a private lawyer.

At the time, Peelman called his failure to say the oath a “technicality.” In its recent written argument for an appeal, the city states there is no required oath and Peelman was acting on behalf of Kimberley Hall Barlow, the Costa Mesa city attorney.

But Belinda Helzer, Acosta’s ACLU defense lawyer, sees a major problem with this argument, which she said runs completely contrary to the city’s previous position.

Barlow is defending the city against a civil lawsuit brought by Acosta, who goes by the name Coyotl Tezcatlipoca, that alleges the city council denied him his right to free speech and wrongfully arrested him. Helzer suspects the city’s criminal case is in retaliation for the civil suit.

“We made a motion to dismiss the criminal case a while ago because attorneys from the same firm were defending the city in its civil case against Acosta and at the same time prosecuting Acosta on criminal charges, and the motion was denied because they said that Peelman and Barlow were completely separate from one another,” Helzer said. “Now they’re saying that Peelman doesn’t have to be sworn in as a city prosecutor because he works for Barlow.”

Barlow said that although Peelman works for her, there is no collaboration on the case.

“There’s no conflict of interest. I don’t direct [Peelman], I just delegate to him,” Barlow said.

Helzer considers the prosecutors’ relationship unethical. “There’s a lack of transparency in what the prosecution is about. Is the city prosecuting Acosta, or is one private attorney vindictively prosecuting him,” Helzer said.

She said the fact that the criminal charges weren’t filed by the city until months after the civil case was filed is suspicious. The city has a week to file a response to Helzer’s claims. Then both sides’ written and oral testimonies will be given to the judges.

ALAN BLANK may be reached at (714) 966-4623 or at alan.blank@latimes.com.