The Trial of Lee Baca

THE TRIAL OF LEE BACA: To Retry or Not to Retry

Celeste Fremon
Written by Celeste Fremon


LIFE AFTER THE 11-1 HUNG JURY

On Tuesday at 11 a.m., former LA County Sheriff Lee Baca, his team of attorneys, and the prosecution team, will meet in the courtroom of U.S. District Court Judge Percy Anderson for a status conference to talk about where the government’s prosecutors intend to go from here with Baca’s case.

Will the feds retry charges of obstruction of justice against the former sheriff? Or will the prosecutors simply cut their losses and move on to Part 2 of Lee Baca’s court proceedings, namely a brand new trial in which Baca will face charges of making false statements to federal officials during a four and a half hour interview that took place in April 2013, when he was asked about his part in the alleged obstruction of feds’ investigation.. (If you’ll remember Baca’s original trial was cut into two trials, the details of which you can find here.)

Part 1 was, of course, the three-week trial that ended in a mistrial three days before Christmas, with the jury a “hopelessly deadlocked” 11 to 1 in favor of acquittal.

Perhaps the near-acquittal shouldn’t have been a surprise, but to many trial watchers and justice advocates it was.

During the jurors’ nearly 24 hours of deliberation, the panel sent a gaggle of notes to Judge Anderson asking for a readback on this testimony, and a clarification of that jury instruction, actions that strongly suggested that some panel members at the very least were still struggling to decide about something.

Yet, the common assumption among many who observed the proceedings was that, if the jury hung, it would be because one or two people held out for acquittal, while the majority voted to convict.

After all, the Tanaka jury was out for less than three hours before they arrived at a unanimous guilty verdict for the same charges. And Tanaka was the second in command at the LASD, while the buck-stops-here head guy was Lee Baca. Plus seven people in addition to Tanaka have been convicted of obstruction and sentenced to terms in federal prison for following somebody’s orders. An eighth former LASD captain Tom Carey has taken a deal and will be sentenced later this year.

But Lee Baca is not Paul Tanaka, as was made evident by those 11 jurors who voted resoundingly to acquit, while only one lone holdout wanted to convict. (His fellow jurors were not at all pleased with him, according to the two jurors who were willing to talk to the press.)

“It was very clear to all of us—-except for the one person where there was….a bit of a bias,” said one of the jurors who gave only her first name of Sheri. Baca wasn’t guilty, she said. “With the information we were given it seemed clear that the sheriff didn’t know what was going on. How could he, with the vast number of employees under him? How could he?”

Sheri and the rest of the jurors (save the one holdout) kept looking for evidence that the former sheriff had committed a crime, she said. “It became apparent that it was not the case.”

The jury believed that there was likely wrongdoing in the jails, Sheri added. But Baca wasn’t at fault. In fact they believed he had tried to do something about the problems, she said.

This last frustrated justice advocates in particular.

“The jury’s inability to reach a verdict in the trial of former L.A. County Sheriff Lee Baca in no way absolves the sheriff’s department or the board of supervisors of their dismissals of years of warnings from the ACLU that corrupt deputies engaged in a systemic pattern of physical abuse of inmates in the county jails,” said Peter Eliasberg, chief counsel at the ACLU of Southern California.

Esther Lim, the So Cal ACLU’s jail monitor, who personally witnessed deputies beating a nonresistant inmate, an account that Baca’s spokesperson Steve Whitmore dismissed in withering tones at the time, replied in a statement that the outcome of Baca’s trial “does not excuse, minimize or erase the years of blatant abuse that were occurring in the LA County jails.”

After the mistrial on December 22, Baca was nearly giddy at the turn of events, hugging well-wishers who approached hi. While, during the trial, the former sheriff seemed to be readying himself to lose gracefully.


THE “CHALLENGE” OF PROSECUTING A ONCE-HUGELY POPULAR FOUR-TERM SHERIFF

“It is always challenging to pursue cases such as these where the government is seeking to hold criminally responsible a highly regarded public servant at the highest levels of law enforcement,” said former Assistant U.S. Attorney Miriam Aroni Krinsky, who was also the executive director of Citizens Commission on Jail Violence, which had very harsh words for both Tanaka and Baca in its final report.

“The prosecution of an iconic and respected figure such as Lee Baca was particularly challenging,” Krinsky told us after the verdict. “Unlike Paul Tanaka, Baca’s involvement in the alleged criminal conspiracy was far more limited and significantly, Baca — unlike Tanaka — could not be accused of having encouraged a ‘work in the grey’ culture that tolerated misconduct and abuse. “

And there were other differences. Unlike the trial of former LA County undersheriff Paul Tanka, who faced the same charges, Baca’s name wasn’t on a list of emails exchanged at crucial moments. Nor were there flurries of phone calls between Baca and the coconspirators, as there was with Tanaka.

Also, Tanaka unwisely took the stand.

As a witness in his own behalf, Tanaka was, at first, very calm and articulate as he disputed the government’s negative characterization of him, speaking directly to the jury about his management style and his ethics, describing himself as someone with an “unwavering sense of right or wrong,” who attempted to impart that ethic to those working under him.

But then lead prosecutor Brandon Fox began hammering the former undersheriff about his membership in the now notorious deputy gang known as the Vikings, and asked if he still had the Viking tattoo on his ankle. Tanaka’s calm cracked, and he had something of a Jack Nicholson in A Few Good Men moment. The jury saw it.


OKAY, SO IS THE GOVERNMENT LIKELY TO RETRY?

Several sources with whom we spoke said they thought the government would not choose to retry the former sheriff, given the 11-1 hung jury.

But when we exchanged emails over the weekend with Miriam Krinsky, she seemed to feel that a second go-around was not off the table for the government at all.

“Under normal circumstances,” she said, “it would be less likely to see a retrial after a jury hang of 11-1. But this is no ordinary case. Rather, in this case – given the successful prior prosecution and prison sentences imposed in regard to a large number of other lower level [department members] — there are strong equities that would suggest giving the case one more go is warranted. The government will likely do an independent assessment of the evidence, what they heard from the jury and what adjustments they think might be warranted or possible in deciding whether to retry.

We agree with Krinsky, that refiling is likely.

Hopefully on Tuesday we will all know for sure—one way or the other.

15 Comments

  • is there really anything left to discuss between the government’s prosecutors (the prosecution) and the government’s prosecutors (Baca’s team) about what direction the government’s prosecutors intend to take?
    isn’t it just one big happy family of the government’s prosecutors sitting on both sides of the stage, whether current or former?
    including everything in-between current and former government’s prosecutors – like the attorney who was brought here special for Baca all the way out from Chicago – Tinos Diamantatis.
    He is an attorney in private practice, but his Assistant U.S. Attorney chair in Northern Illinois is still warm from when he last used it.

  • can Judge Anderson ask Governor Jerry Brown to come on down to the status conference so they can discuss allowing the representatives of a free and fair press their opportunities to sit down to chat with CA Corrections Dept. resident Anthony Brown about this and that and whatever?
    No Exclusives, unless Mr. Brown prefers to keep very private and to himself nowadays. He used to be the very conversational type.
    Allow Brown to schedule an entire week of interviews.
    Let reporters bring in some freshly-made burgers to share with him. And some root beer and Doritos to help Brown get the talk flowing.

    • EDITOR’S NOTE:

      Good question, “MyGoodness,” I see I didn’t make that clear. I agree that the government is likely to refile for the reasons Krinsky outlines. Yet, I could be dead wrong. I did not intend this as an opinion—at least not at this juncture—about whether or not there should be a retrial.

      Thanks for asking. I’ve tweaked the relevant sentence to make things a bit more distinct.

  • One of the jurors named Sherri posed the rhetorical conundrum –
    how could Sheriff Baca be held responsible if he didn’t know what was going on? And how could he know what was going on with the vast number of employees under him? how could he?
    Sherri is exactly the kind of juror a defendant would want if he was lee baca and he wanted an acquital.
    If i was lee baca and if there was some way that the jury selection system could be corrupted and if there was the possibility to get a ringer in the jury pool on my case – i would hire sherri.
    she comes well prepared and delivers a convincing performance.
    and that is a very good question sherri has posed( even though it was not the argument presented by Baca’s defense).

    “With the information we were given it seemed clear that the sheriff didn’t know what was going on”

    Do you see what a good juror sherri is ?
    She knows she pledged her duty to only make her decision based on the information they were given.
    Yet she has an intuition there may be something more out there.
    I think i know of someone who can help sherri –
    her name is Sonia Mercado.
    She is an attorney. She represented the plaintiff in the civil lawsuit
    Starr vs. Baca.
    She prepared the arguments and submitted the briefs upon which Circuit Judge William Fletcher based his opinion filed February 11. 2011
    just a few months prior to Anthony Brown and Pandoras Box
    Government prosecutor’s would probably say that’s just a coincidence.
    My armchair observer’s guess would say that Fletcher’s opinion has everything to do with with the fbi/doj anthony brown informant investigation which became pandora’s box.
    Fletcher’s opinion seemed so well reasoned to the u.s. supreme court they denied Baca’s application for review.
    That cleared the final hurdle to Fletcher’s order to remand for trial Starr vs. Lee Baca in his individual capacity with his personal assets at risk of verdict awarding damages to plaintiff.
    that is what set off the alarms at eric holder’s DOJ to get rolling on an investigation of alleged abuses at l.a. county jail.
    they didn’t have the time or the desire to compose an investigation that would yield evidence of the quality needed for effective prosecutions.
    just roll out a scheme that will get its cover blown and generate histrionics and headlines and hurry up.
    here is the ruling which made l.a county BOS and u.s.doj get their govt. petards out of neutral and shifting into DRIVE on reforms at lasd.
    make yourself a whole bunch of copies, Sherri.
    hand them out to all of your friends.
    http://cdn.ca9.uscourts.gov/datastore/opinions/2011/02/11/09-55233.pdf

  • Regarding Allison’s link, anyone who knows Lee Baca, knows that he could not have cared less about what was going on in the jails. He was only interested in spreading his pixie-dust around the world “making good” for all the world’s “little people” – which did not include the “little people” suffering inside his own jail. All one has to do is read the litany of incidents quoted in Judge Fletcher’s opinion to prove that theory – one horrible incident after another. To further prove my point, I’ll bet Baca would not be able to produce one, not one, e-mail to the Assistant Sheriff over Custody and/or the Custody Chief asking WTF is going on. Naw, he was too busy being Sheriff to the World – and the local media was still loving our own lovable, progressive and, of course, “quirky” Sheriff. Only in Hollywood.

    I would certainly hope that the Feds re-read Fletcher’s opinion – at least the part quoting what was going on unabated inside Baca’s jail, before they make their decision to retry. And this time, PLEASE tell the jurors what he knew or certainly should have known.

  • Well, maybe the Sheriff is innocent ? A jury didnt convict him. The Feds did a good job with Tanaka and those other 7 convicted criminals. Thank God for heroes like Brown and others who came forward to do the right thing. Keep up the good work ACLU.

    • I think you actually believe the crap that comes out of your mouth. That is totally disturbing. Anthony Brown is serving a 400 plus sentence for murder. He is no hero!! Those 7 convicted were not convicted of abuse in the jail. The FBI, the prosecution and Judge Anderson are only trying to make a mark in their careers. They did it at the expense of Sexton. He will come out on top!! Did you happen to see the HBO VICE news special? You probably think Hitler was a hero too!!

  • When Judge Anderson disallowed the initial six month sentence, it blew up in the prosecution’s face. A vital lesson in leaving “well enough” alone.

  • Wow….considering it was 11 to 1 mistrial, I thought for sure there would be no
    re-trial. Was I wrong, Feds and Judge Anderson are not giving up. This is going to be interesting to watch.

  • No friend of Baca and he deserves 100 trials but the prosecution will find out what information they need to redact and the jury will hear tainted evidence. They did it at the Sexton trial and they will do it at this trial too. Good luck Baca karma is a bitch!!

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