On Tuesday morning, July 5, attorneys for former Los Angeles County Sheriff’s deputy James Sexton, and six more department members who were convicted of obstruction of justice in a trial separate from Sexton’s, tried to convince the 9th Circuit Court of Appeals that their convictions should be overturned, and that U.S. District Court Judge Percy Anderson should be replaced in any future proceedings, should Sexton or the six be retried.
Most of the former members of the Los Angeles Sheriff’s Department who have been convicted by federal prosecutors, are similarly appealing their cases (unless, like former sheriff Lee Baca, they have taken a deal, in which case appeals are precluded).
Former undersheriff Paul Tanaka and his attorneys, unsurprisingly, filed an appeal before the sun went down on the day of his conviction.
But the appeals of Sexton and the six others—namely former LASD members Gregory Thompson, Stephen Leavins, Gerard Smith, Mickey Manzo, Scott Craig, and Maricela Long—were the first to actually appear in front of the 9th Circuit. Thus the arguments put forth by the defense and countered by the prosecution, were both interesting, and closely watched.
The defendants’ attorneys traditionally are given very little time to make their legal pitches in front of the three-judge panel, which heard Tuesday morning’s cases for Sexton and the six others, so presentations have to be brief, persuasive and to the point.
In the cases of all seven, attorneys argued, among other things, that the defendants didn’t really obstruct justice, but were following lawful orders.
Among the issues that seemed to catch the attention of the 9th Circuit panelists are the following:
JUROR NUMBER FIVE
In the trial of Greg Thompson, et al, one issue flagged by the defense had to do with the dismissal of a certain juror, by U.S. District Court Judge Percy Anderson, who presided over all trials pertaining to the alleged obstruction of the FBI’s investigation into corruption and brutality inside the LASD-run LA County jails, which included the hiding of a federal informant from his FBI handlers in an operation that came to be known, unofficially, as Operation Pandora’s Box.
Here’s the deal:
On the fifth day of jury deliberations, Juror Five sent a note to Judge Anderson asking to be dismissed from the panel.
Jurors, of course, can be legally and appropriately dismissed for a host of reasons. That is why any court is wise to have a good supply of alternates on hand.
In the trial of the six, one juror had already been dismissed earlier in the deliberation process because she suddenly had an emergency that affected her childcare situation. No one raised any particular objection to her exit. Emergencies are emergencies.
(We were to learn later that this mom juror was reportedly leaning strongly toward acquittal, so her dismissal was bad luck for the defense. But those are the breaks, not grounds for appeal)
A few hours later, however, a second member of the jury panel, Juror Number Five, sent the note to Judge Anderson. It read as follows:
Due to duress, I would appreciate your consideration in accepting my resignation from this case. Always loyal to our justice system and the privilege to serve my decision has been clouded with fear of retaliation.
Juror Five was an anxious-appearing woman who always seemed to keep her distance from the rest of the pack, when it was time for the jury to leave the building.
According to the defense’s initial brief, the judge asked the juror if she feared “retaliation” from an “outside source.” But reportedly, that wasn’t the issue. She said, the defense writes, that her feelings would not affect her ability to deliberate personally. But she did not believe that there was a fair exchange of ideas among he panel, and she was also doubtful that a fair and impartial verdict could be reached. (Or words generally to that effect. )
In their second brief, the defense went further:
Two things, taken together, make Juror Five’s dismissal unlike what occurred in any of the cases cited by the government, or any case of which Defendants are aware. First, juror dismissal usually results from a claim of misconduct made by another juror or jurors. Here, no one complained about Juror Five, she raised her concerns with the court. Second, after discussing her concerns with the court, Juror Five stated, repeatedly, that she could continue with deliberations, and there was no good reason to doubt her – after all, it was she who raised her concerns with the court. On the other hand, there was ample reason to believe that her initial request to be excused stemmed from a dispute amongst jurors about the merits of the case. (Ital. from WLA.)
In other words, the defense suggested that the judge improperly and unnecessarily dismissed Juror Five, who was distressed—not because she was fearful for her safety, or because she personally could not continue deliberate fairly and impartially—but because she was in disagreement with the majority, which upset her.
To put it another way: Juror Five, had she not been dismissed, arguably could have produced a hung jury, and thus a mistrial. (The defense attorneys did not say this directly, but the possibility was implied.)
The defense attorneys say more in their briefs (the second of which you can find here), and several of the court watching attorneys who were present when the dismissal occurred mentioned that they thought letting Number Five go could cause Judge Anderson problems on appeal.
The panel seemed very interested in this issue, and two of the judges asked a string of questions. What those questions portend is impossible to say.
TO EDIT OR NOT TO EDIT
When it was Sexton’s teams’ turn, his attorney, Tom O’Brien, focused primarily on two issues, both having to do with Sexton’s grand jury testimony.
The first of the two issues, had to do with editing, in particular whether Judge Anderson allowed the prosecution to introduce an improper and misleading edit of Sexton’s grand jury testimony that essentially changed its meaning by excluding certain contextual sections that, according to the defense, would have given the jury a different and, by definition, more accurate view of what Sexton did and didn’t know.
(James Sexton, we should remind you, was tried twice. The first trial resulted in a mistrial caused by a hung jury, which was evenly split, six to six.)
In the first trial, according to Sexton’s defense team, the prosecution read a mostly intact portion of Sexton’s grand jury testimony to the jury, which—in both trials—they characterized as a confession.
In the second trial, a portion of grand jury testimony was also presented. But in trial number two, the defense contends, the original text was selectively edited.
“Selectively editing the transcript—-including significant context–—allowed the jury to be misled,” the defense wrote in their briefs, and reiterated to the three 9th Circuit judges Tuesday morning.
This is from one of their briefs, which were delivered to the panel weeks ago:
“Similarly, the Government eliminated numerous other statements clarifying Sexton’s intent and knowledge behind his alleged confessions. As described in the Opening Brief, the Government withheld from the jury numerous statements regarding Sexton’s actual lack of foundation for his alleged confessions, such as: ‘there were rumors,’ ‘we as young deputies were speculating,’ ‘I was not privileged to the entire information,” “I had conversations about this with . . . my peers and just trying to establish what we were doing,’ ‘innuendo,’ ‘we’re baby faced in there,” “I’m not going to detain a U.S. Attorney at gun point’….and so on.
To make their point clearer still, the defense included the following:
One of the justices asked a number of questions about why the editing made such a big difference, while the other two judges made notes, their expressions impassive.
THE LEGALITY OF BEING A TARGET
The second issue in Sexton’s attorneys emphasized, both in their briefs, and in oral arguments, was the idea that the prosecution grievously erred when it reportedly failed to appropriately notify Sexton that he was a target before he testified twice under oath in front of the grand jury, particularly the first time.
(Interestingly, Sexton testified that first time without an attorney, because his lawyer from the deputies’ union, ALADS, failed to show up. But that’s another issue altogether, and not relevant to the appeal.)
In any case, believing himself to be a cooperating witness, not a potential defendant, Sexton didn’t demand to have an attorney present. Nor did he invoke his 5th Amendment rights, or claim a faulty memory when answering questions that could have put him in legal jeopardy.
Here’s a clip from Sexton’s attorneys’ argument:
A target must be notified of his status and rights prior to being subpoenaed for Grand Jury testimony. That did not occur here. The Government specifically advised Sexton, and his counsel, that he was not a target of the investigation (a claim that was false). (Sexton’s prior counsel stated under penalty of perjury that “it was obvious to me that I had been misled and James Sexton had always been a target defendant”).
By its own admissions—particularly given its reliance on the evidence at trial—the Government believed it had sufficient facts linking Sexton to a crime. It, therefore, had a duty to notify Sexton (or counsel) of his target status prior to obtaining a sworn “confession.”
Using that first Grand Jury testimony as a “confession,” wrote the defense, without letting Sexton know he was a target, is the equivalent of introducing a confession obtained by questioning a suspect without a Miranda warning.
The attorneys for Sexton and for the six will likely argue other points. But, as mentioned above, these are the legal questions we’ll be watching with the most ardent interest.
The prosecution replied to all of these and other points in their various briefs, and in Tuesday’s arguments.
Tuesday morning we will see how the 9th Circuit’s panel reacts.
By the way, the three judges who listened to Tuesday’s arguments and who will decided the fates of the seven defendants are:
1. Judge Ferdinand Francis Fernandez, a 1989 G. H. W. Bush appointee, stationed in Pasadena
2. Judge Richard Clifton, a 2002 G. W. Bush appointee, stationed in Honolulu
3. Judge Michelle Friedland, a 2014 Obama appointee, stationed in San Francisco
More in a while.
So, stay tuned.
“Want some cheese with that whine ” ? These guys are guilty.They have been convicted and are just spinning their wheels. Give them a new trial, build their hopes up and convict them again. It’s sad. The whole affair is just plain sad for them and society.
If their appeals are as stated they will have a tough time. After decades of reading and giving opinions on these type of cases the defense needs to put forth better arguments that legally warrant a new trial. I haven’t read anything to overturn any conviction? But, let’s wait and if better arguments come forth?
….”because his attorney from the deputies union, ALADS, failed to show up….” Why?
Because ALADS president at that time FLOYD HAYHURST was a “coin holder” in Tanaka’s camp. Knowing Tanaka’s involvement, Hayhurst’s plan was to totally shut down Sexton to guard his buddy Tanaka. Simple goes to show how ALADS conduct it business.
Give it up and man up and do the time. More of those lying, corrupt sworn to eventually get what they deserve. They still work in the Department.
Shad 49, can you prove this or are you just talking smack. If your allegations can be proven, Sexton will own ALADS. This needs to be exposed with factual information, not rumor or speculation, regardless of you have an ax to grind against ALADS. Put up or shut up, I hope you have the goods.
#5, Celeste has the lawsuit and the filings. It went to arbitration where the arbitrator and ALADS had a known relationship. The final disposition was Sexton did not excercise the “legal plan properly” by notifying the secretary of ALADS rather than dick shinee within 15 days of his indictment. The courts don’t want to intervene in “private club” affairs. They ruled this way because ALADS never took an official vote nor let sexton speak to the board.
IF this is overturned, he will reapproach. If it is upheld, moot point.
Look folks, it was a packed courtroom and people were in the overflow. Talked to him today and he isn’t naive. Just excercising his constitutional rights on HIS dime. If any of this seems out of line check with C, Sexton isn’t the only news in LASD or LA. Some of us just like to make him pay for daddy and Baca.
He just shows up when most people throw in the towel. I can assure you he understands the gravity and reality of the situation but it’s still his right to do this.
Have ALADS allow you to see the Board meeting minutes regarding representation for Sexton and the ensuing conversation. It would not have happened without sneaky-ass Floyd and Shinee in cahoots. I’ll leave it at that and you can try to cover up for Hayhurst all you want. No ax to grind, just the facts.
How can the Feds in the Sexton case say he obstructed justice when he was just following orders? Why did they have to chop up his Grand Jury testimony to get a conviction? This is the same agency that today let Hillary Clinton off the hook knowing she violated the law just because a good prosecutor wouldn’t take the case????? I think this agency is talking out both sides of their rears. This is the most corrupt agency and before they start throwing stones at other law enforcement agencies they better clean their own house. It’s not what you know but who you know. Sexton keep your head up. Watched the video and hard to say what the outcome will be, but this was a witch hunt from the beginning and hopefully at least 2 of the Judges will see that!!!
@.5 What exactly do you have an issue with. Hayhurst, Tanaka or Sexton.
Looks like you can’t find justice on any level in a Federal court room!! Convict Sexton and let Hillary go. FBI director James Comey called her extremely careless?? He actually spent about 15 minutes sounding like he was going to indict her then at the last minute said nanh, she’s guilty as hell but she is the Teflon lady nothing sticks. She held our national security in her hands and we will never know the damage or lives she put in danger. These deputies especially Sexton did nothing as severe as Hillary Clinton and she walks. I agree with Shad 49 get the meeting transcript. These people need to pay. ALADS needs to be exposed, disbanded and indicted!!!
The Feds lost all credibility today. You can never get it back and should never prosecute ever again. You said Hillary was guilty for 15 minutes and then just dropped the bomb. Free Sexton!!! The FBI director should be fired but he will probably get a Cush job in her administration. I hope all 3 appellate judges see the flaws in this decision. How can you prosecute one without indicting the other? Big money and promises got her off.
10: I must agree. Hillary committed murder, treason, runs a criminal enterprise and got away with it. But, if your name is Sexton, you get nailed! This is not to say what he did was right but if you got lots of money and political connections you will fair much better. Maybe Paul should come out and endorse Hillary?
I kinda thought the foolish defense of police officers following illegal and unlawful orders was determined to be not a very wise defense? I think each jury laughed that out of the courtroom as they were voting “guilty” on all counts. The best thing the Thompson crew can hope for is a new trial, another guilty verdict, a new judge and longer sentence and an even larger legal fee to pay. You are not arguing to the 9th that you are factually innocent, because you are not. You guys went into Pandora’s Box with your eyes wide open and the expectation the little man was going to shower you with rewards. He showered you alright, more like golden showers. Drag on the inevitable all you wish, it’s your rodeo.
Now Sexton on the other hand, he might have a shot. I’m still wrestling with what he did, what he was doing with/for the FBI before or after the fact. And then there is the GJ testimony and editing. Those questions might sway the 9th. That has to play out. But the rest of the crew of Tanaka worshippers, you played the game to please him, it’s all on you. “The most important investigation in the history of LASD.” Oh yeah, he made you feel important that day, didn’t he?
Where is Justice writes ” These deputies especially Sexton did nothing as severe as Hillary Clinton and she walks.”
I am finally glad you are willing to admit they did wrong.
If I was one of these convicted criminals, I would show remorse, try to help out and ask if I could start serving time with an ankle bracelet.
It’s funny, law enforcement want Judges to be tough on crime, yet when the Honorable Judge Anderson does, they want no part of him or his court…..the hypocrisy
My advise for the convicted criminals is too play nice and show remorse.
Lonestar, give it a rest. They are past the “I am sorrys and let me wear an anklet bracelets.” That is where you are showing you ignorance or hateful bliss about their process. Gilbert Michelle took a bribe, made an early deal, and wrote a soppy love letter to DOJ almost 3 years ago. Then he testified.
That’s how you get that Baca deal.
Walk a mile in their shoes and you might have a different perspective, but you are perfect human being with no perversions or wrong doings to speak of. Thank you for being the second coming. I am sorry I did not hear the trumpets announcing your arrival. Luke 24:34!!!
Go shine your Blue and Gold shield and stop trolling. You are not that dumb, but you are that passive aggressive. Or OR OR maybe we actually have his honor on the line here.
They say, “Federal Judges aren’t God, but they are qualified to stand watch.” This makes a little sense to me now come to think of it.
@ 10. Your last sentence spoke volumes and righteously so. Talking about ALADS will wear anyone out, because change is never effected. In Sexton’s case (as stated by @ 6.Jack Dawson) behind the scenes ALADS slithered their way though a slanted arbitration with little exposure. Exposure will not be a problem when ALADS vs. MACIAS ET AL., come October of this year. Media will have a smorgasbord.
Your wrong Jack Dawson.
These Convicted Criminals could share light on a lot of investigations that were slanted /covered up and help a lot of people. Instead, they complain about a Fair and Honorable Judge doing his job and how they were picked on and discriminated against. Heck, maybe they are right….then again, maybe not. I guess that’s the reason for their Appeal. It seems that the Court and Judiciary system has been more lenient on people that cooperate. ( spare me the Sexton rebuttal)
Calling it a Spade #13 ( above ) wrote a very interesting piece of his interpretation of events. I do not think it matches your interpretation, but that is what this forum is all about. Reading an opinion and weighing it out.
As for walking a mile in their shoes, I Guarantee you that part of that walk would not have been to that Cute FBI agents house and threatening her with arrest. That was unbelievable……lol
I do wish the convicted criminals the best. If they are innocent, I hope and pray that the Judiciary does them well.
@lonestar you mistake me agreeing with you Sexton did anything wrong. I can’t overlook a jury found him guilty with tainted evidence. I was making reference to the severity of what Mrs. Clinton has done and no indictment at all. I find it appalling that Sexton was found guilty with tainted evidence and she was allowed to walk with the FBI Director admitting the severity of her actions and lies. As far as the “Honorable” Percy Anderson he is the worst judge in America and I didn’t give him that honor. Being tough on crime is different than cheating to achieve an outcome. All Sexton wanted was a fair trial. You have tried to lynch him on here. His first trial was a hung jury and second time around you had to cheat to get a conviction. I don’t agree with those tactics on any level.
Sometimes a little perspective goes a long way to understanding prosecutorial decisions. I’m troubled by the use of edited GJ testimony in Sexton’s second trial, hopefully the 9th will come through with a just decision. The rest of the appellants can take a long walk off a short pier.
Whining about Hillary won’t help Sexton’s cause. Separating hard facts from political rhetoric, it’s easy to see how partisan hatred has been elevated to the point some believe she hired the second shooter on the grassy knoll. Of the actual 110 emails from 58 email chains that contained classified info, perspective is important. While the GOP persecuted Hillary for bad judgment, and rightfully so, they should be reminded that the Bush Jr. administration had 88 private email accounts, run through the RNC’s own server, where over 5 million emails simply disappeared when he left office. These private accounts were used by Bush, Cheney, and most of their staff during the lead up to the Iraq War, the outting of the CIA agent, and the firing of the 8 US AG’s.
Two questions for those paying attention: anyone want to guess how many of those emails were classified? How about whether or not the RNC server was hacked? Now perhaps one can appreciate why Hillary walked on the one thing her opponents finally had substance to hang her with.
If you have not watched the video or more importantly listened carefully to the comments you have missed potential key paradigm shifts. One, that the United States Attorney’s Office when communicating with a Defendants Attorney does not have to be totally truthful and that A local “Cops” ability to be deceptive in an investigation versus a Federal Officers differ. Sad thing about this “Goat Rope Incident” is that it should have been resolved with a phone call. Sad State of Affairs, when trust between Deputies in the Department is consistent with the lack of trust in our Federal counterparts. The key to success is partnership.
#19 You ruffled many feathers and caused a high percentage of tightened jaws. Not to mention the stinging effect resulting from the truth.
Brass balls combined with knowledge is powerful and also a threat to those who think they know everything. I’m sure comments to your post will be minimal.
19: Sadly, nothing you have written is true. And you may want to refresh your memory that this is about Hillary and not Bush! Comey said Hillary never knowingly and intentionally committed a crime. Ok, couldn’t Sexton say the same? No where did the Feds put forth that Sexton knowingly and intentionally committed a Fed crime. If you have evidence to the contrary then put it forth. I have read his entire testimony and perhaps I overlooked something so go ahead and correct me. Again, I am not supporting his behavior.
Hillary and her rapist husband(one of the victims called him a rapist)have been in government for decades and she didn’t know she was breaking the law? Do you think she is really that stupid? If no, then she should be prosecuted. If yes then she shouldn’t be president! This is not hard!
Horrible, that politics does enter into everything we do. Had Celeste did what Hillary had done Celeste would be in prison. Is it White Privilege? Or White political privilege?
Right now I can’t think of a black woman that committed a federal crime and is not in prison, can you?
#23, Bernice Abrams but that is about it… I am not trying to get in the mix, but that was a softball. I hope you find that funny rather than antagonizing.
She should be in prison more than anybody mentioned above.
Jack Dawson,I think the 7 convicted deputies should be in prison instead kicking back at their houses. A black person would be in prison appealing. The 7 convicted criminals have been afforded courtesies.
23: You know you are 23 right Jack?