This should be a rather boring legal story regarding a routine motion by the DOJ to dismiss without prejudice a case in Federal District Court, and instead move it to D.C. Superior Court, where new charges based on D.C. criminal code (not federal criminal code) would be filed.
On September 7th the DOJ, in federal district court, charged Omari Beidleman with a single misdemeanor count of “Assaulting, Resisting, or Impeding Certain Officers or Employees,” alleging Beidleman assaulted two National Guardsmen. Beidleman asserted his right to speedy trial (the Speedy Trial Act generally mandates trial with 70 days of charging) and trial was set for November 17th. On September 19th Beidleman timely motioned for dismissal arguing the National Guardsmen “were not federal officers lawfully engaged in official duties.”
Competent prosecutors should have anticipated this argument and prepared for it, These prosecutors, led by Fox News Host and on air drunk, Jeanine Pirro, did not. Caught flat-footed prosecutors first sought to delay responding to the motion. In the request for delay they failed to inform the court (as is required) that defense counsel had been contacted and opposed the delay. The court would later say that had it been so informed no delay would have been granted. The prosecutors apologized for what they claimed was an oversight. In any event, the judge granted a three day delay to respond.
The additional three days were not enough for the prosecutors to come up with an answer. So, prosecutors sought to delay things more, by essentially restarting the process. Prosecutors motioned to dismiss the charges in D.C. District Court, so they could refile in the D.C. Municipal Court. The prosecutors asked the dismissal in the District Court to be “without prejudice,” in the event they changed their minds, yet again, and wanted to go back where they started.
It is for that the court balked.
“While the Government may attempt to prosecute Mr. Beidleman in Superior Court, it cannot do so while keeping its foot in the federal courthouse door. Dismissing the Information without prejudice would subject Mr. Beidleman to prosecutorial harassment.”
Under Federal Rule of Criminal Procedure 48(a) the court has the discretion to grant dismissal with prejudice, or without it. The court chose without. The court acknowledged there is a strong presumption favoring dismissal without prejudice (see discussion of the Presumption of Regularity below). The court noted that presumption can be overcome where dismissal with prejudice risked harassment of the defendant, and the court found that risk present in this case.
Judge Sparkle Sooknanan, fresh off her heroic dark of the night saving of scores Guatemalan children from our government’s child trafficking schemes, saw the government’s efforts as nothing short of stalling to gain “tactical advantage.” The government hoped that by stalling for a period in Municipal Court it might find arguments against the defendant’s motion to dismiss to return to Federal Court.
Accordingly, Judge Sooknanan dismissed the case with prejudice. Under this ruling the DOJ can still start over and prosecute Beidleman in the local D.C. Court, under D.C. Municipal criminal statutes, but the door is barred for prosecutors to return the case to federal court. You can read the decision HERE.
What makes this decision remarkable is how Judge Sooknanan started the decision, reeling off a list of irregular conduct by prosecutors in Federal District Courts for the District of Columbia. In the interest of brevity I will omit the citations, but each use of the word “cites” reflects multiple, often numerous citations, to specific cases associated with such prosecutorial abuses.
For the last several weeks, judges in this District have seen case after case involving unprecedented prosecutorial action. In some cases, prosecutors have elected to pursue charges even after federal grand juries have refused to return an indictment. [cites] In others, the Government has been charging cases notwithstanding apparent constitutional violations. [cites] Most troubling, prosecutors have rushed to charge cases before properly investigating them, resulting in individuals being detained for days only to have the Government voluntarily dismiss the charges against them at early hearings. [Cite] (noting “an unprecedented number of cases that the U.S. Attorney dismissed in the past ten days, all of whom were detained for some period of time”). Prosecutors have also seemingly disregarded the requirement in Rule 5 of the Federal Rules of Criminal Procedure that the Government bring a defendant before a Magistrate Judge without unnecessary delay. As a result, individuals have been detained for days despite the Government having no reason to detain them and in fact not seeking to detain them when it finally brought them to court. [cites] And just this week, prosecutors attempted to return a grand jury indictment from the Superior Court of the District of Columbia in this court after a federal grand jury refused to return an indictment. [cite]
The judge then states the current case, involving Beidleman, “is another example of apparent prosecutorial machinations.”
A recurring theme in many of my recent articles here is how Trump’s Department of Justice is destroying “The Presumption of Regularity” that normally assumes good faith and adherence to regular processes in governmental acts, to include DOJ prosecutions. Less than a week ago I cited the Comey indictment as yet another deviance from such regularity and I listed a series of article by me touching on the decline the Presumption of Regularity.
If the Presumption of Regularity were strong Judge Sooknanan would have deferred to the strong presumption favoring dismissal without prejudice. However, with the pattern of government misconduct evidenced in the Beidleman’s case, and in the long list cited Judge Sooknanan, the Presumption of Regularity is clearly getting less weight. At this stage it may not even rise to a sneaking supposition of regularity.
