SOUNDING OFF:

I do not normally involve myself in political discussions or debates that appear in the local newspaper.

I hope you will understand my reluctance then to engage in the debate that has unfairly targeted city prosecutor Dan Peelman and, even more unfairly, the Costa Mesa City Council, in connection with the prosecution of Benito Acosta.

Though I have already explained to reporters and columnists for the Daily Pilot the structure and decision-making process for pursuing municipal code violations through the city attorney’s office, I continue to read in the paper statements that are wholly untrue.

The City Council does not determine who gets prosecuted, nor does it direct what charges may be pursued, when and under what circumstances charges will be filed, whether a case should be dismissed at some point in time during its course, or whether to appeal a decision adverse to the people.

The Acosta case is no different. The City Council had no say in whether criminal charges were filed against him. Each case brought to the city attorney’s office for consideration of filing charges or seeking some other resolution is handled the same way. Potential charges are brought forward by police, investigators or code enforcement offices for consideration. The prosecutor independently evaluates whether he or she believes a crime has been committed and whether there is sufficient evidence to prove that crime in court. Criminal charges are never filed lightly, and council approval is not sought.

The prosecutor’s obligation is to represent the people and to do justice. For more than 15 years, Peelman has fulfilled that obligation for communities as an independent contractor.

He has done so diligently for the past three years on behalf of the people of Costa Mesa. Regardless of one judge’s viewpoint about the need to take an oath as either a city or a county officer, it is inappropriate to take Peelman to task for failing to take an oath that in most cases does not apply to independent contractors, which is essentially identical to the oath he took when he was sworn into the California Bar, and when he was previously sworn in as a peace officer and into the military.

He swore to protect and defend the Constitution and California. I have seen no evidence that he failed to meet those obligations. He has never renounced the oath he took on those three occasions and continues to abide by those oaths.

It is always unfortunate when public funds are spent and yet no resolution on the merits of questions of importance to the community are reached.

Acosta’s legal counsel chose to seek dismissal many days after the trial of his case began, thereby intentionally preventing a resolution on the merits of the allegations. Much prosecution’s cost up to the trial’s beginning was incurred in successfully defeating several motions from the defense challenging the validity of municipal code.

Not only were those motions unsuccessful, but they were essentially a repeat of an unsuccessful constitutional challenge to the same code sections previously launched in federal court by Acosta’s counsel.

Peelman’s decision to pursue prosecution against Acosta had nothing whatever to do with the civil case brought by Acosta against the city.

The charges filed against Acosta were not the same charges the Orange County District Attorney declined to file. Whether you agree with the decision to prosecute Acosta or with the judge’s order dismissing the case, the guiding principle for every prosecutor remains the same. Swearing one more oath does not and cannot change that.

KIMBERLY HALL BARLOW is an attorney for Jones & Mayer.