In two separate courtrooms at a federal courthouse in downtown Los Angeles, prosecutors were having a tough day.
On the seventh floor, Wednesday afternoon, in courtroom 7B, U.S. District Judge Andre Birotte Jr. rebuked prosecutors from the U.S. attorney’s office for failing to disclose additional discovery to the defense in the trial of two defendants charged with assault on a federal officer.
“You have to be ready for prime time and you’re not,” said Birotte, a former U.S. attorney.
In making his argument for dismissing the case, Samuel Cross, the deputy federal public defender, said he was quoting the judge by calling it “amateur time in the U.S. attorney’s office.”
“This test probably isn’t going to happen,” Birotte said.
Three floors up, about 20 minutes later, in Courtroom 10A., Prosecutors were anxiously awaiting the verdict of Luis Hipolito, who was 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 assaulting the officer. Unlike previous trials, where jurors were acquitted due to lack of video footage, videos were 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 that they acted in self-defense after being pepper sprayed and elbowed.
Acting US Atty. Bill Essaly speaks during a press conference in October.
(Christina House/Los Angeles Times)
In his closing argument, Asst. US Atty. Jason Pang questions Hipolito’s conviction for the attempted kidnapping. He told jurors that Hipolito had signed an agreement stating that he knew that the person he punched was a federal officer or employee. He displayed a slide show titled “Defendant’s Lies Under Oath.”
“He lied again and again,” Pang said. “He knew they were law enforcement officers.”
Despite their arguments and Punch’s confession, prosecutors had cause for concern. His office has aggressively brought charges against anti-immigration enforcement protesters under the direction of Bill Essay, a Trump acolyte and the office’s top prosecutor. His office has charged more than 100 people with assault on agents or interference with immigration enforcement since June.
At least 28 of them have taken plea deals. But of the five cases of assault on a federal officer the office tried, prosecutors did not win any.
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Hipolito’s trial began on Tuesday and centers around a high-profile immigration operation in Downtown LA on June 24. In the process of detaining the street vendors, ICE officers also took into custody a young woman, Andrea Velez, charging her with assault. (The case against him was later dismissed).
Hipolito testified that he was dropping his sister off at work when he heard a girl yell “I’m an American citizen.” He thought she must have been 17 or 18 because she was so young. She said she was being picked up by unidentified men twice her size and wearing masks. He said he saw on social media that bounty hunters were capturing people and believed Velez was possibly being kidnapped.
ICE officer and supervisor Carrie Crook, who was at the scene, testified that after Hipolito and two others ignored multiple orders to stop the officer vehicles, Crook pepper sprayed them. Crook said that’s when Hipolito punched him in the face, knocking out the lenses of his glasses and causing a concussion.
Masked, plainclothes agents take Luis Hipolito into custody after he wrestles him on the sidewalk.
(handout)
Crook said Hipolito later lied to ICE officials that Velez was her aunt. Hipolito said he lied because he could not get information about her condition unless he was a relative.
Hipolito, who became emotional at times while taking the stand Tuesday, said he first felt pepper spray and then an elbow in the face. He described throwing his fist out as an “immediate reaction”.
He said, “I didn’t look where I punched, I just took a swing.” “I just wanted to defend myself.”
Hipolito’s arrest, which was not shown to jurors, went viral on social media. Video captured four agents pushing Hipolito onto the sidewalk, pinning him against a curb. One put his arm around Hipolito’s neck. Soon after, Hipolito’s legs began to tremble and stiffen and his body began to tremble violently.
During cross-examination, Asst. US Atty. Johnpaul Lesedre pressed Hipolito on his belief that the officers were bounty hunters, even though they wore jackets with the word “Police”. Hipolito responded that anyone could buy a vest and put a police on it.
Lesedre also questioned Hipolito about being “willing to lie to the authorities” and asked if he would be willing to lie on the stand.
Hipolito responded, “Today, I am speaking the absolute truth.”
Both sides gave their final arguments on Wednesday morning. Prosecutors dropped a potential bomb: Hipolito signed a condition stating that he knew Crook was a federal officer or employee.
The defense placed responsibility for the violence on Crook.
Defense attorney Ricardo A. Hipolito, who represented Hipolito pro bono. “It was Agent Crook who took the case forward,” Nicholl told the jury. “Hippolito reacted out of fear…it was a reaction to a sudden and violent attack.”
At about 11 p.m., the jury went back to deliberate.
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People push back against Department of Homeland Security police protesting against immigration enforcement in front of the Federal Detention Center in Los Angeles on July 17.
(Luke Johnson/Los Angeles Times)
In courtroom 7B, the case against Erin Petra Escobar and Nick Gutierrez — who were accused of assaulting a federal officer during a protest outside the Roybal Federal Building on July 17 — had already been derailed.
During the trial, prosecutors submitted additional discovery to the defense that should have been disclosed earlier. There were several new documents including access to force reports revealing the identities of federal officers previously unknown to the defense team.
Now, during a 1:30 p.m. hearing Wednesday on a defense motion to dismiss the case, Birotte demanded to know who was responsible. Endure. US Atty. William Kanellis said a former assistant U.S. attorney was believed to have turned the discovery over to the defense. Current prosecutors on the case were also not aware of the reports, he said.
“A mistake was made,” Kanellis said. But he and another prosecutor argued that the reports were similar to those that had already been turned over to the defense. Kanellis suggested moving the trial forward until defense attorneys had a chance to review the new material.
“I’ve got 12 people here, will you ask them to come back in a month?” Birote 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?” Birote questioned whether he had ever been a defense attorney.
Cross, the deputy public defender representing Escobar, said the new evidence changed his approach to the case and how he would have prepared for trial. He said 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 an egregious use of force against our customer.”
Cross said defense attorneys have been put in a worse position “because of the government’s misconduct.”
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At about 3:30 p.m., the jury went back to Courtroom 10A to decide Hipolito’s fate.
They deliberated for nearly four hours, a good spell on a case that had only two witnesses and a video of the alleged assault that prosecutors played repeatedly. If convicted, Hipolito faced up to 20 years in prison.
Verdict: Not guilty.
Dianne Bass, one of Hipolito’s attorneys, jumped up and folded her hands in gratitude to the jury. Hipolito leaned forward in his chair, his face in his palms. His sister, sitting in the front row, wiped her eyes.
Bass embraced Hipolito, who asked his lawyers if he was really free. He said yes.
“Thank God justice was served,” Hipolito said outside the courtroom.
Shortly thereafter, he spoke on the phone with Velez, who said she was praying for him every day.
“I’m really grateful to you,” Velez said.
The jury declined to comment on what led to their acquittal.
The US attorney’s office in LA also declined to comment.
Luis Hipolito, second from left, with his sister Iris and his attorneys Dianne Bass and Ricardo A. Posing with Nicole outside the downtown federal courthouse.
(Brittany Mejia/Los Angeles Times)
“You would think that, at some point, they would start to realize that history and the public are not on their side, that the will of the people is not on their side,” Nicholl said. “But they are so determined to get punishment in these cases that they don’t stop.”
He further said, “Clearly, there is a lack of coordination between the government and the people it is supposed to represent.”
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The next morning, things got even worse for the prosecutors in Room 7B.
Birotte said he agreed with defense attorneys that the failure to complete discovery is a Brady violation, in that the suppression of evidence favorable to the defense is a violation of due process.
“The government has tried so many cases like this, I wonder ‘is it all over?’ There will be no investigation to look into this” Birotte said. “The notion that they inadvertently failed to add reports to this case is not binding on this court. This is something that should have been addressed and was not.”
“The court has put me in a dilemma that I have not faced in my entire time on the bench, and I do not take it lightly,” Birotte said. He dismissed the case with prejudice, meaning prosecutors can’t file charges again.
He described dismissal as “the only fair and reasonable option”.
After Birotte dismissed the jurors, several of them spoke to waiting defense attorneys. Jurors seemed to indicate which way they were leaning. Jurors said a government witness had contradicted himself several times.
