At Appeal Hearing 9th Circuit Judges Ask About Paul Tanaka’s Viking Tattoo

It’s All About the Vikings

During the Monday appeals hearing for Paul Tanaka, the former powerful number two man of Los Angeles County Sheriff’s Department, his attorney, Charles Sevilla, talked mostly about the Lynwood Vikings and why the prosecution’s insistence on trying to paint Tanaka as a member of the notorious deputy clique meant his client could not get a fair trial.

“In the Paul Tanaka trial,” said Sevilla to the panel of three judges selected to hear the case for the 9th Circuit Court of Appeals, the government made a tremendous point of claiming that Mr. Tanaka was a “member of a gang of lawless Lynnwood deputies engaged in civil liberties violations.”

Lead government prosecutor, Brandon Fox, Sevilla said, “kept at it for ten pages, about this lawless gang engaged in civil liberty misconduct. And about whether or not Mr. Tanaka still had a Vikings tattoo on his ankle,” never mind that the Vikings insignia was simply “the Lynwood substation mascot,” according to Sevilla.

Echoing his client’s statements during the trial that took place in late March and early April, 2016, Sevilla said that the Vikings basically engaged “intramural sports competition,” and that anyone could join.

unwavering sense of right and wrong

Paul Tanaka, if you’ll remember, was convicted of obstruction of justice and conspiracy to obstruct justice. During his trial, the government alleged, among other things, that he helped hide a inmate/federal informant Anthony Brown from his FBI handlers in an effort to obstruct a federal grand jury investigation into corruption and brutality in the county’s troubled jail system.

At Tanaka’s trial, government prosecutors presented their case in two parts that they labeled “the crime” and “the context.” The context, according to the government, was Tanaka’s style of supervising, which—they suggested—favored a cowboy brand of law enforcement where toughness was allowed for— even required—and deputies were encouraged to step over the legal line, as needed, and subsequently protected from any consequences of their actions. This, according to the prosecution, was the larger context surrounding Mr. Tanaka’s actions during the summer of 2011 when the hiding of Anthony Brown and other events took place.

At trial, Tanaka himself took the stand, where he countered the prosecution’s portrait by presenting himself as someone with an “unwavering sense of right or wrong,” who attempted to impart that ethic to those working under him.

When it came time for cross-examination, prosecutor Brandon Fox worked to challenge Mr. Tanaka’s portrayal of himself as an outstanding supervisor who was above reproach. It was in this context that Fox brought up the Vikings, a deputy clique that the former undersheriff purportedly joined when he was a sergeant at the department’s Lynwood station from 1987 to 1991.

In the 62-page brief for Tanaka’s appeal to the 9th Circuit, Sevilla (who is highly regarded in the appeals world), focused on three issues.

The first was the prosecution’s use of the Vikings, and the fact that U.S. District Judge Percy Anderson allowed the subject to be brought into the trial at all.

The second issue was the contention that Anderson should have forced the prosecution to offer immunity to former LA County Sheriff Lee Baca and compel Baca to testify in Tanaka’s defense.

The third and final point of contention in the brief had to do with some disputed jury instructions.

Yet, at Monday’s hearing, Sevilla pretty much focused solely on the Lynwood Vikings, and why the introduction of the topic was wrongfully and disastrously harmful to his client.

[NOTE: The 9th Circuit has now posted the video of the hearing, which you can watch here. An audible version is also available.]

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The Panel of Judges

An appeal of this kind is, with rare exceptions, heard in front of a randomly selected panel of three judges. Tanaka’s panel was an intriguing mix of jurists, which could have been either good news or bad news for the appellant. It was made up of circuit judges Stephen Reinhardt, Morgan Christen, and Alex Kozinski.

one of the most liberal judges on the circuit

Carter appointee Reinhardt is considered to be one of the most liberal judges on the circuit, a perception that is likely furthered by the fact that he is married to Romona Ripston, the former director of the ACLU of Southern California.

Christen is an Obama selection who, in 2011, became the first female judge ever appointed to the circuit from the state of Alaska. She appears to be more progressive-leaning than not, although it was former governor Sarah Palin who appointed her in 2009 to the Alaska Supreme Court, which paved her way to the appellate court.

Alex Kozinski, the third on the panel, was appointed by Ronald Reagan, and is the most conservative of the three. He is also easily the most outspoken, and the hardest to predict. Furthermore, in the last four years, Kozinski has been on a very public mission to call attention to prosecutorial misconduct, which could be good for the defense. Or not.

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About That “Neo-Nazi, White Supremacist” Gang…

Among defense attorney Sevilla’s main points on the Vikings issue was that prosecutor Brandon Fox asked Tanaka on the stand if he was “aware of a finding in a 1991 lawsuit” which had determined the Vikings to be a deputy gang?”

(Tanaka was not named in the lawsuit.)

Fox then asked if Tanaka was aware that the judge found the Vikings to have engaged in widespread civil rights violations and “other acts of lawlessness?”

…regularly disregard the civil rights of individuals they have sworn to protect.

According to Sevilla, this mention of the civil lawsuit was extremely misleading and prejudicial because “the jury never heard that the findings” of the lower court “were reversed.”

The part about the reversal was only partly true. In the case of Thomas v. the County of Los Angeles, District Court Judge Terry J. Hatter, Jr. famously depicted the Vikings as a “neo-Nazi, white supremacist gang” of deputies, writing that the Vikings “…regularly disregard the civil rights of individuals they have sworn to protect.”

Hatter then issued a preliminary injunction that forced a list of the reforms on the sheriff’s department as whole, not just on the Lynwood station. The LASD appealed the preliminary injunction to the 9th Circuit, which struck down the injunction as overbroad. The 9th did not, however, weigh in on the lower court’s findings about the Vikings. Furthermore, the county subsequently settled with the dozens of plaintiffs in the Thomas for $6 million and several guaranteed departmental reforms.

As it happens, one of the three judges on the panel at the 9th Circuit that reviewed the lower court’s ruling about the Lynwood Vikings, was Judge Kozinski.

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“He Said He Was a Boy Scout”

During Sevilla’s presentation, all three of the judges had plenty of comments and questions.

“Your client took the stand,” said Judge Christen. “He talked about the department’s core values. So what’s unfair about the prosecution” going through such issues as the Vikings on cross-examination?

At some point, when Sevilla again raised the point of Tanaka being tarnished by the unfair characterization of being a member of a “gang of lawless Lynwood deputies…” Kozinski, who had spoken less than the other judges, interrupted.

…he’s got the tattoo, for crying out loud!

The Vikings, he said, were accused “specifically of conduct that consisted of trying to protect other officers who engaged in misconduct.” This was a topic that spoke directly to the supposed motive for Tanaka’s obstruction of justice.

“He said basically, he was a boy scout, and the prosecution was cross examining him.”

Kozinski also wanted to know about Tanaka’s Viking tattoo, and why the defense believed the prosecution wasn’t “entitled” to ask about it.

“How can it be irrelevant?,” asked Kozinski,. “He put his character at issue. And he’s got the tattoo, for crying out loud!”

In one of the next go-rounds, Judge Reinhardt brought up Tanaka’s 2012 testimony before the Citizen’s Commission for Jail Violence, in which the former undersheriff conceded that he was aware of the Vikings’ infamous reputation.

“Of course, some people in high authority encourage the police to violate civil rights,” Reinhardt added wryly, evidently referring to recent national news.

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When it was the government’s turn, Assistant United States Attorney Bram Alden, argued—as he had in the government’s brief—that since Tanaka had chosen to take the stand, the prosecution was permitted to delve into “intent,” as it showed “that he had a reason to obstruct justice.”

The defense won a point when it came up that lead prosecutor Fox had begun his closing arguments by referring to Tanaka as a member of a deputy gang.

I’m here to argue my client didn’t get a fair trial

“It’s discouraging to hear the prosecution engaging in” such tactics, said Reinhardt. Then to Alden, “I know your office tries to hold itself to a high standard. It certainly didn’t in this case.”

Appearing buoyed by Reinhardt’s criticism of the prosecution, when it was Sevilla’s turn again, he reiterated his point to the judges one final time. “I’m here to argue that my client didn’t get a fair trial,” he said.

At this point Kozinski waded in again.

“I agree with Judge Reinhardt that [gang] is a strong term,” he said. “But,” Kozinski added, “there was evidence that he was a member of this organization.”

Sevilla again recited that, according to Tanaka, the Vikings wasn’t a membership organization, and the tattoo harmlessly depicted the mascot for the Lynwood station.

“That’s not the only inference one can draw from the tattoo,” Kozinski observed dryly.

And with that, the time was up, and the hearing ended.

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Post Game Wrap-Up

Outside the Pasadena courthouse, Savilla talked briefly about how he thought the hearing had gone.

He said although the appeal covered a number of issues, that the defense “focused exclusively on the first issue, which had to do with prosecution’s attempt to categorize Mr. Tanaka as a member of a lawless gang of deputies that operated out of the Lynwood station. As we pointed out,” Savilla said, “there was no evidence of that, and those questions never should have been asked.”

he wasn’t a member of any lawless gang, [so] it was pretty unfair

Savilla pointed again to the prosecution’s mention of Tanaka’s Viking tattoo at the beginning of the government’s closing argument.

“Given the fact that he wasn’t a member of any lawless gang, it was pretty unfair.”

When asked how Tanaka was doing in prison, Savilla said he was “enduring it.” But “I’m sure it’s not where he would prefer to be.”

As for his guess about outcome of the appeal, Savilla said he was “cautiously optimistic.”

Outside the court, former Assistant U.S. Attorney Miriam Aroni Krinsky was far less upbeat about the defense’s chances.

“You have a panel where one of the judges isn’t a stranger to the Vikings issue,” she said, referring to Kozinski, whom she said “had an opportunity to pour through” the 1991 court record. “So he’s already versed in some of the concerns that were raised.”

While this prior knowledge may not play into the legal analysis, Krinksy said, she thought it “adds a bit to the atmospherics.”

Krinsky—who is executive director of Fair and Just Prosecution, a national network of elected prosecutors committed to reform—noted that both Reinhardt and Kozinski were critical of prosecutor Fox for bringing up the Vikings at the start of his closing argument. Both of them, she said, “tend to hold the government to a high standard, and they should be held to a high standard.”

…a huge volume of evidence

But whether their criticism could lead to a reversal of Tanaka’s conviction, she said was “doubtful.” It’s a pretty high wall to climb, said Krinsky, before an appeals court is willing to reverse a district court’s ruling on evidentiary issues. “

And the fact that the mention of the Vikings in the closing argument was not objected to by the defense at the time did not help Tanaka’s case, according to Krinsky. In addition, she said, there was lots of evidence that related, “not just to Paul Tanaka’s involvement in the obstruction,” but also to “a series of acts” by Tanaka over the years “that all three of the judges pointed to.”

This meant, she said, the court was aware of “a huge volume of evidence that set the back drop for the questioning of Paul Tanaka.”

The 9th Circuit panel is expected to rule on Paul Tanaka’s appeal in approximately two months.

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For a more detailed description of the drama of the prosecution’s cross examination of Paul Tanaka on the topic of the Lynwood Vikings, you can find it here and here. You’ll find it intriguing reading, we promise.