The Retrial of Lee Baca

Could Lee Baca Get a New Trial? 9th Circuit Appeal Hearing Finally Set on Nov. 6

Celeste Fremon
Written by Celeste Fremon

This fall, Lee Baca’s lawyers will ask a three judge panel to overturn the former LA County Sheriff’s conviction, and to grant him a new trial with a different judge presiding.

After much delay, this week the date for the appeal hearing was finally scheduled for Tuesday, November 6, at 9 a.m. at the Pasadena-located court for the 9th Circuit Court of Appeals.

In preparation for the hearing, Baca’s lawyers have filed another legal brief filled with newly aggressive arguments.

As readers will remember, on March 15, 2017, after deliberating for approximately fourteen hours, an eight-man four-woman jury found Baca guilty of one count each of conspiracy to obstruct justice, obstruction of justice and making false statement to federal investigators.

Two months later, on May 12, U.S. District Court Judge Percy Anderson sentenced Baca to three years in a federal prison.

“Alzheimer’s disease is not a get out of jail card,” Anderson said just before he announced that he was sentencing Baca to 36 months in federal prison, with a year of supervised release.

Baca’s lawyers appealed the conviction to the Ninth Circuit right away.

On October 18, 2017, the Ninth found that the appeal had enough possible merit that it agreed to grant the former sheriff’s motion for bail pending his appeal.

The appeals court based its decision to grant bail on three principles.

First, wrote the court, Mr. Baca had “clearly and convincingly shown that he is not likely to flee or to pose a danger to the safety of any other person or the community if released,.”

(No one really disputed this part of Baca’s claim.)


The Alzheimer’s issue

The most interesting of the Ninth’s reasons was the conclusion that “Baca has raised in his appeal a ‘substantial question’ of law or fact.”

In other words, there was at least one point in Baca’s pitch for an appeal that the Ninth believed could have merit, namely his attorneys’ claim that the district court, in the person of U.S. District Judge Percy Anderson, “erred by excluding expert evidence” of Baca’s Alzheimer’s disease.

This claim, according to the Ninth, “is at least ‘fairly debatable,’” given that “the exclusion of the expert’s testimony was ‘directly relevant and material’ with respect to Baca’s claim that he lacked the requisite mens rea for the false statements charge.”

(“Mens rea” means criminal intent or guilty mind, in other words an individual’s awareness of the fact that his or her conduct is criminal.)

Moreover, wrote the appeals court, “if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.”

Finally, according to the Ninth, Baca had shown, through “a preponderance of the evidence” that he filed the appeal “for a purpose other than delay.”

(Judge Anderson, who thought otherwise,  originally declined to order bail for Baca because, he wrote, “..the Court concludes that Defendant has failed to raise a substantial question likely to result in reversal or new trial.”)


Anonymous jurors and new jobs

In May of this year, Baca’s lead appellate lawyer, San Diego-based, Benjamin Coleman, filed a new 54-page brief in which he and his team attempted to strengthen its case for reversal. The mistakes made by the judge and the prosecution, according Coleman, included “the exclusion of critical defense evidence,” namely the testimony of the Alzheimer’s expert.

In another argument, Coleman wrote that Judge Anderson “erroneously empaneled an anonymous jury,” which limited the defense team in jury selection, since they had no way of researching the potential jurors, he said. At least the lawyers could have been given the names, according to Coleman.

Among the precedents on the lawyer cited was a case involving purported Mexican Mafia figures, in which jurors’ identities were disclosed to the attorneys “in advance to do background checks, without divulging those names to their clients…”

But, not so in Baca’s case. Moreover, in the previous related trials of sheriff’s department members for similar charges, argued Baca’s attorneys, “…there was not a hint of juror intimidation” and the juries were not anonymous.

Another of Baca’s lawyers’ claims is that Judge Anderson made a crucial error in the former sheriff’s first trial by wrongly declared a mistrial too quickly. (The former sheriff was tried twice after the jurors hung in the first trial in late December 2016 with eleven jurors voting to acquit and only one juror holding out for a conviction.)

Judge Anderson, Coleman and company wrote, erred when he refused “Mr. Baca’s request for an Allen charge,” but instead went ahead and declared the mistrial when the jury announced itself hopelessly deadlocked.

(The Allen charge, often called the “dynamite charge,” is a special instruction given to encourage deadlocked juries to reach agreement. The charge is named for an 1896 decision,Allen v. United States, in which the U.S. Supreme Court sanctioned the method of judicial shoving.)

All of these and more are interesting arguments.  But will they convince the Ninth?

It will also be interesting to see if Mr. Baca’s new teaching job will be included in any way in the government’s counterargument regarding the exclusion of the Alzheimer’s expert.

Aside from that side issue, the strategy of Lee Baca’s lawyers is very interesting and persuasive—irrespective of the former sheriff’s guilt or innocence.

And so the beat goes on.

WLA will be at the hearing.

Editor’s note: If you’d like to read Baca’s most recent trial brief for yourself, we’ve embedded it below.


Photo above by WitnessLA

Former LA County Sheriff Lee Baca Trial brief for appeal with 9th Circuit by Celeste Fremon on Scribd

17 Comments

  • Couldn’t help wondering, what if Percy Anderson was a white southerner, and Leroy Baca was a black panther leader on trial for the murder of a white cop. Would witness la be so sanguine about ol’ Percy’s denial of Baca’s Defense claims?

    The recent scrutiny of the feds, espically the FBI is well founded and overdue. But don’t expect social justice types like Witness la to care. They see a powerful FBI as being on their side, as long as the “right” people are being raked over the coals, no problem.

  • Personally, I could care less if Leroy spends five minutes in Federal prison or not. The real culprit, one Paul Tanaka, is doing time right here in Rocky Mountain High, Colorado. He is the one that created carnage within LASD. May your remaining time be done in slow motion, you earned it.

      • “The vehicle of change is not the provable past exclusively,” he told the commissioners. “The vehicle of change is the vision of human behavior and where it can change.”

        Asked why he hadn’t done something sooner about the jail situation, Baca replied: “A way of seeing is also a way of not seeing. And I’m one who tries to see more than is able to be seen.”

        Those comments are all you need to know about Looney Leroy. Paul Tanaka played Baca like a Stradivarius violin. Yet in the end, it all rained down on Paul like a hurricane and Karma shouted, “Tanaka, you called down the thunder, well now you got it!” I truly hope Leroy walks.

        • Calling It a Spade:

          In the link I provided is another link about Leroy’s Ph.D dissertation; that link validates your characterization of Leroy as “Looney Leroy.”

    • Calling it a Spade, while I agree that Paul Tanaka deserves the multilevels of purgatory, let’s not forget that Lee Baca was a critical part of the obstruction of justice. He does not deserve a pass regardless of the corruption of Tanaka. Lee Baca was compromised in his effort to become Sheriff & Tanaka was part of that to be sure. Many can cite years of ethical & organizational lapses by Baca prior to him becoming Sheriff, a trajectory that ended very badly for LASD.
      As to whether the 9th Circuit finds fault with the conviction doesn’t counter the obvious fact that Lee Baca was a very flawed & profoundly unfortunate choice for Sheriff. The former LASD brass that that worked to that end deserve special recognition. Messieurs Myron, Stonich, Waldie, Tanaka & Campbell deserve metals of valor for that effort. It’s hard not to notice how some of those esteemed leaders have reappeared to attach themselves to the leg of Sheriff McDonnell. I would only hope he will shake his leg to shed the parasites.
      As to the many that think the subordinate staff was unfairly prosecuted, I wish the prosecution had been limited to the real decision makers, Lieutants & above. Lee Baca could have saved them if only early on, he’d owned up. But alas he was compromised in so many other matters he had to ride the Tanaka train over the River Kwai

  • I agree with too.

    The entertaining thing would be a new trial for Baca and watching the Prosecution call the President of that 2 Bit University to the stand.

  • Sheriff Baca gave us Sheriff Jim McDonnell, no doubt about that, we hopped McDonnell was going to do “the right thing”, he failed miserably. The biggest mistake Sheriff Baca made, was to blindly delegate to a sick power-hungry, vindictive subordinate, namely Paul Tanaka. Just like the current Sheriff Jim McDonnell is doing. Jim McDonnell has delegated all his power to a vindictive, power-hungry attorney, his second in command his right hand, who incidentally is to his right on the chain of command graphic, lawyer Diana M. Teran.

    Just like Sheriff Baca went to Tanaka for advice, and what to do and how to run the organization, Sheriff McDonnell goes into Diana Teran’s office behind closed doors, looking for advice, as to what to do, and how to run the organization. Just like the spineless executives under Baca were afraid of the little man Tanaka, the current spineless executives are afraid of the big woman, Diana Teran.

    That is a big factor why the organization is in worst shape than it was before, it is very dysfunctional, there are many bands, the McDonnell/Teran team vs executives vs the supervisors vs the line personnel. All manufacturing cases on each other, except the very top. I have the feeling Diana Teran will be the undoing of McDonnell just like Tanaka was the undoing of Baca.

    Sheriff Jim McDonnell lacks candor, valor, and courage to run the sheriff’s department as he should, just by watching him speak during interviews, he appears unsure, weak, unable to speak straight as he should. He constantly, indirectly manufactures cases against his own deputies for stats purposes. The only thing that might help McDonnell avoid an FBI investigation is that he speaks of the FBI as a partner, as opposed as Tanka, who allegedly said: “fuck the FBI”.

    And thanks to the president of the USA, Donald Trump, we now know the FBI is as crooked as any other police organization, they cherry pick who they want to go after, and finding the excuse, it is a walk in the park. With that, I hope Sheriff Baca wins his appeal.

    • Great point regarding the so called “pre-eminent, above reproach” FBI/DOJ under then President Obama. The FBI has proven to be rife with political bias and corruption. How can anyone have faith that their investigation of LASD was not biased and tainted based on the actions and behaviors that have come to light of it’s crooked leadership.

      Who policies the “top cop”? The US Congress apparently does not.

  • EDITOR’S NOTE:

    We thought some of you might want to take a look at Lee Baca’s most recent trial brief, which we found very smart and well argued. So we’ve belatedly embedded it. You’ll now find it below the story.

    Happy Labor Day weekend.

    • I just finished reading the trial brief, as you stated, it “is very interesting and persuasive”. It appears to me the government, as well as the district court, conspired to trample all over Mr. Baca’s constitutional rights to find him guilty. Specifically, they conspired to deprive him of rights guaranteed to him by the 6th and 14th amendments.

      Whether I like or hate Mr. Baca and whether I think he is guilty or innocent, I am sure he is entitled to the equal protection of the law, guaranteed to all in the United States, by the 14th amendment to the US constitution.

      It is very ironic Mr. Baca was tried for obstruction of justice, yet the government and the district court engaged in obstruction of justice to effect justice. These United States are now looking more like a banana republic where the political opponents are incarcerated to send a message. How can anyone trust the so-called Justice System?

      I just wonder where the justice warriors are, why they are not protesting the injustice against Mr. Baca. Could it be that as long as the constitutional rights of their opponents are violated, they are okay with it?

  • Folks:

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    Full particulars can be found by Googling “Verity Health Network going bankrupt.”

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