Feds Plan to Retry LA Sheriff’s Deputy James Sexton (But Will There Ever Be Indictments Up the Ladder?)July 7th, 2014 by Celeste Fremon
On Thursday of last week, two days after a federal jury found six members of the Los Angeles Sheriff’s Department guilty of obstruction of justice, attorney Thomas O’Brien learned that federal prosecutors are planning to retry O’Brien’s client, Deputy James Sexton.
Sexton, if you’ll remember, was tried in May of this year on the same allegations of obstruction of justice and conspiracy to obstruct justice for which the six were just convicted. But in the case of the 28-year-old deputy, the jury hopelessly deadlocked, 6-6, producing a mistrial.
In many ways Sexton’s case is similar to that of Mickey Manzo and Gerard Smith, the two deputies who were just convicted (along with two sergeants and two lieutenants).
Like Manzo and Smith, Sexton works for Operation Safe Jails (OSJ), the elite unit tasked with, among other things, developing informants among the various prison gang populations inside the county’s jail system.
And, like Manzo and Smith, Sexton was an active part of the team that hid federal informant and inmate, Anthony Brown, from his FBI handlers, albiet, at a far more junior level.
AND YET THERE ARE DIFFERENCES
Despite the similarities, Sexton’s case also is significantly different from the case arrayed against Manzo and Smith in several ways. For instance, unlike the recently convicted deputies, Sexton originated no relevant emails, he never interrogated federal informant Anthony Brown, he was not present at high-level meetings, like the meeting on August 20, 2011, called by Sheriff Lee Baca, with former undersheriff Paul Tanaka and other command staff in attendance, where Smith and Manzo were also present, and crucial discussions occurred. Unlike Smith or Manzo, his name is never listed in pertinent emails as being someone in a position of authority.
Perhaps most importantly, unlike Smith and Manzo, Sexton cooperated with the FBI for more than a year, reportedly submitting willingly to 37 different interviews with the feds, many of the interviews with FBI special agent Leah Marx.
The deputy talked with Marx and company so much, in fact, that, according to agent Marx’s testimony, in order to make communication with the feds easier and safer for Sexton, she and her team gave him a cell phone that he could use solely for his calls to them. (The FBI reportedly grew concerned after it learned of what it believed were genuine threats against Sexton and his OSJ partner, Mike Rathbun, by department members, due to the two deputies’ whistleblower actions on another unrelated LASD case.)
In addition to providing information and documents to the feds, Sexton also testified twice in front of a grand jury, and did so without any apparent effort at self-protection.
In short, Sexton fully admitted his part in the operation that came to be known as Operation Pandora’s Box—obligingly describing the hiding of Brown in colorful detail. Sexton also characterized the hiding of Brown as being part of an “adversarial” attitude in which “the adversary was the U.S. government”—aka the FBI and the U.S. Attorney’s office.
“It was ‘bring out the smoke and mirrors’” he said.
The center of the prosecution’s case at the last trial was this grand jury testimony along with similar statements Sexton made to special agent Marx.
After the last trial resulted in a hung jury, juror Marvin Padilla said that it was Sexton’s grand jury testimony that got him and some of his fellow jurors to vote for acquittal.
“I just did not find it credible,” said Padilla. “I think these are conclusions he reached in hindsight a year later,” not when the actions were actually occurring. “Nearly all of Sexton’s narrative at the grand jury seemed like 20-20 hindsight.”
CRIMINAL CONDUCT & A TOXIC CULTURE
After the verdict came in last Tuesday, U.S. Attorney Andre Birotte held a short press conference on the court’s steps in which he talked about a “criminal conduct and a toxic culture” at the Los Angeles Sheriff’s Department.
“While an overwhelming majority of law enforcement officials serve with honor and dignity,” said Birotte, these defendants tarnished the badge by acting as if they were above the law.”
Monday at around 3 pm, James Sexton and his attorneys will meet with government’s prosecution team before Judge Percy Anderson to discuss whether or not the government will indeed refile charges on the deputy in the hope of convincing a jury that, Sexton, like the other six, acted as if he was “above the law.”
If so, a new trial could take place as quickly as this September.
LOOKING DOWN & LOOKING UP
Meanwhile, Miriam Aroni Krinsky, a former Assistant United States Attorney and the executive director for the Citizens’ Commission on Jail Violence, explained why the government has likely decided to have another go at Sexton, and what to expect at a second trial.
“It is not surprising that the government would elect to retry Deputy Sexton given the decisive conviction of the other six defendants on all counts,” said Krinsky.
“The government may well believe that equities support a retrial and that a new jury should have the opportunity to determine whether Mr. Sexton should also be held accountable for his alleged participation in this conspiracy.”
Krinsky noted, however, that any retrial of Sexton will be “challenging” in the light of what she described as the deputy’s “limited role in the conspiracy and his immediate and prolonged cooperation with the government.” It was these factors, she said, “that undoubtedly resulted in jury nullification that accounted for the first jury’s inability to reach a verdict.”
The next time around, Krinsky said, “we can expect the government to present more robust evidence at any retrial (just as they did at the trial of the other six defendants) regarding the backdrop of excessive force in the jails and the systemic failures at LASD” that “…didn’t simply justify, but in fact compelled, the FBI to engage in an undercover operation that involved the unorthodox smuggling of a cellphone to an inmate.”
Of course, the mention of “systemic failures” and “a toxic culture” at the LASD cannot help but raise the question that must loom as a backdrop to any discussion of refiling on Sexton, namely whether or not the government intends to move up (instead of merely down) the ladder of command to file on those who actually gave the orders, and set the cultural tone that has, thus far, resulted in seven federal indictments for obstruction of justice, and six felony convictions.
More as we know it.