In two separate courtrooms in a federal courthouse in downtown Los Angeles, prosecutors were having a rough day.
On the seventh floor, on Wednesday afternoon, in courtroom 7B, U.S. District Judge André Birotte Jr. berated prosecutors with the U.S. attorney’s office for failing to disclose additional discovery to the defense until they were in trial for two defendants charged with assault on a federal officer.
“You’ve got to be ready for prime time and you’re not,” said Birotte, a former U.S. attorney himself.
In making his argument to dismiss the case, Samuel Cross, a deputy federal public defender, said he was quoting the judge in calling it “amateur hour at the U.S. attorney’s office.”
“This trial is probably not going to happen,” Birotte said.
Three floors up, around 20 minutes later, in courtroom 10A, prosecutors sat expressionless awaiting the verdict for Luis Hipolito, who was also on trial for assault on a federal officer after punching an ICE officer in the face during an operation last summer.
Hipolito did not deny striking the officer. Unlike in past trials where jurors acquitted due to a lack of video footage, there were videos posted on social media that captured the punch. He said he believed the officers, who did not identify themselves, were bounty hunters trying to kidnap a woman and he acted in self-defense after he was pepper sprayed and elbowed.
Acting U.S. Atty. Bill Essayli speaks during a news conference in October.
(Christina House / Los Angeles Times)
In his closing argument, Asst. U.S. Atty. Jason Pang questioned Hipolito’s belief of an attempted kidnapping. He told jurors that Hipolito signed an agreement saying he knew the man he punched was a federal officer or employee. He displayed a slide titled “defendant’s lies under oath.”
“He lied over and over again,” Pang said. “He knew that they were law enforcement officers.”
Despite their arguments, and the admission of the punch, the prosecutors had reason to worry. Their office has aggressively pursued charges against anti-immigration enforcement protesters under the direction of Bill Essayli, a Trump acolyte and the office’s top prosecutor. His office has charged more than 100 people since June, alleging assaults on agents or interference with immigration enforcement.
At least 28 of them have taken plea deals. But of the five assault on a federal officer cases the office had taken to trial, prosecutors had not won a single one.
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Hipolito’s trial began on Tuesday and was centered around a high-profile immigration operation in downtown L.A. on June 24. In the process of detaining street vendors, ICE officers also took a young woman, Andrea Velez, into custody, accusing her of assault. (The case against her was later dismissed).
Hipolito testified that he was dropping his sister off at work when he heard a girl screaming “I’m a U.S. citizen.” He thought she was 17 or 18 because she was so short. He said unidentified men twice her size and wearing masks were picking her up. He said he saw on social media that bounty hunters were getting people and said he believed Velez was possibly getting kidnapped.
Carey Crook, an ICE officer and supervisor on the scene, testified that after Hipolito and two others ignored multiple commands to stop blocking officer vehicles, Crook pepper sprayed them. That’s when, Crook said, Hipolito punched him in the face, popping a lens out of his glasses and leaving a bruise.
Masked, plainclothes agents take Luis Hipolito into custody after wrestling him to the pavement.
(Handout)
Crook said Hipolito later lied to ICE officers that Velez was his aunt. Hipolito said he lied because he couldn’t get information on her condition unless he was a relative.
Hipolito, who at times grew emotional when he took the stand on Tuesday, said he felt the pepper spray first and then an elbow to his face. He described throwing out his fist as an “instant reaction.”
“I didn’t see where I landed the punch, I just took a swing,” he said. “I just wanted to defend myself.”
Jurors were not shown the aftermath of Hipolito’s arrest, which went viral on social media. Videos captured four agents pushing Hipolito to the pavement, piling on top of him against a curb. One hinged his arm around Hipolito’s neck. Soon after, Hipolito’s legs shuddered and buckled and his body began to shake violently.
During cross examination, Asst. U.S. Atty. JohnPaul LeCedre pressed Hipolito on his belief that the officers were bounty hunters even as they wore vests with the word “Police” on them. Hipolito responded that anyone could buy a vest and put police on it.
LeCedre also questioned Hipolito about being “willing to lie to the officers,” and asked whether he’d be willing to lie on the stand.
“Today, I’m talking just the truth,” Hipolito responded.
Both sides delivered their closing arguments on Wednesday morning. The prosecution dropped the potential bombshell: that Hipolito signed a stipulation saying he knew Crook was a federal officer or employee.
The defense put the onus for the violence on Crook.
“It was Agent Crook who escalated,” Ricardo A. Nicol, a defense attorney who represented Hipolito pro bono, told the jury. “Hipolito reacted out of fear … this was a reflex response to a sudden and violent attack.”
Around 11 a.m., the jury withdrew to deliberate.
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People push against Department of Homeland Security police as they protest against immigration enforcement in front of the Federal Detention Center on July 17 in Los Angeles.
(Luke Johnson / Los Angeles Times)
In courtroom 7B, the case against Erin Petra Escobar and Nick Gutierrez — charged with assaulting a federal officer during a protest outside the Roybal Federal Building on July 17 — had already gone off the rails.
During the trial, prosecutors turned over additional discovery to the defense that should have been disclosed prior. There were several new documents that included use of force reports revealing the identities of federal officers previously unknown to the defense team.
Now, during a 1:30 p.m. hearing on a defense motion to dismiss the case Wednesday, Birotte demanded to know who was responsible. Asst. U.S. Atty. William Kanellis said a former assistant U.S. attorney was supposed to have turned over the discovery to the defense. Prosecutors currently on the case, he said, also had not been aware of the reports.
“A mistake was made,” Kanellis said. But he and another prosecutor argued the reports were similar to what had already been turned over to the defense. Kanellis suggested pushing out the trial until defense attorneys had a chance to review the new material.
“I’ve got 12 people here, are you going to tell them to come back in a month?” Birotte said.
“I don’t think it’s going to take a month,” Kanellis responded.
“How do you know how much time they need to prepare?” Birotte snapped, questioning if he’d ever been a defense attorney.
Cross, the deputy public defender representing Escobar, said the new evidence changed the view of the case and how they would have prepared for trial. He said the reports showed that a federal officer placed his knee in Escobar’s back twice.
“Excessive force in self-defense is one of the key aspects of this case,” he said. “This is a very large use of force against our client.”
Cross said the defense attorneys had been placed in a worse position “by the government’s misconduct.”
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Around 3:30 p.m., the jury shuffled back into courtroom 10A to deliver Hipolito’s fate.
They had deliberated around four hours, a good spell on a case that had only two witnesses and a video of the alleged assault that prosecutors played repeatedly. Hipolito faced up to 20 years in prison if convicted.
The verdict: not guilty.
Diane Bass, one of Hipolito’s attorneys, jumped up and clasped her hands in gratitude toward the jury. Hipolito leaned forward in his chair, his face falling into his palms. His sister, seated in the front row, wiped her eyes.
Bass embraced Hipolito, who asked his attorneys if he was actually free. They said yes.
“Thank God justice was served,” Hipolito said outside the courtroom.
Soon after, he spoke by phone with Velez, who said she’d been praying for him every day.
“I’m really grateful to you,” Velez said.
The jury declined to comment on what prompted them to acquit.
The U.S. attorney’s office in L.A. also declined to comment.
Luis Hipolito, second from left, poses outside the downtown federal courthouse with his sister, Iris, left, and his attorneys Diane Bass and Ricardo A. Nicol on Wednesday in Los Angeles.
(Brittny Mejia / Los Angeles Times)
“You would think that, at some point, they might start to realize that history and the public are not on their side, that the will of the people is not on their side,” Nicol said. “But they’re so determined to get convictions on these cases, they don’t stop.”
“The government and the people they’re supposed to be representing are not in sync right now, obviously,” he added.
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The following morning things got worse for prosecutors in room 7B.
Birotte said he agreed with the defense attorneys that the failure to turn over discovery constituted a Brady violation, in which suppression of evidence favorable to the defense violates due process.
“The government has tried numerous cases like this, I’m just surprised that there wouldn’t be a check to see ‘Has everything been turned over?’” Birotte said. “The notion that they inadvertently failed to add reports to this case is just not compelling to this court. This is something that should have been looked at and it wasn’t.”
“The court’s left with this dilemma that I have not faced in my entire time on the bench and I don’t take it lightly,” Birotte said. He dismissed the case with prejudice, meaning prosecutors cannot refile the charges.
He called the dismissal “the only fair and just option.”
After Birotte dismissed the jurors, several of them spoke with waiting defense attorneys. The jurors appeared to signal which way they were leaning. A government witness, jurors said, had contradicted himself a few times.
This story originally appeared on LA Times
