The Retrial of Lee Baca

Ninth Circuit Says No to Former LA County Sheriff Lee Baca’s Bid for a 2nd Appeal

Celeste Fremon
Written by Celeste Fremon

On Friday, the Ninth Circuit Court of Appeals turned down a last ditch request from former Los Angeles County Sheriff Lee Baca for a second hearing from the appeals court—known as an en banc hearing.

This double rejection from the Ninth could clear the way for U.S. District Judge Percy Anderson to set a surrender date for Baca to begin his three year federal prison term.

Two months ago, on February 11,  a three-judge panel of Ninth Circuit judges affirmed Baca’s 2017 conviction  for charges of conspiracy to obstruct justice, obstruction of justice, and making false statements to federal investigators—all charges that came about when the once powerful sheriff repeatedly attempted to derail a federal investigation into brutality and corruption in LA County’s then scandal-plagued jail system.

Former LA County sheriff Lee Baca with defense attorney Nathan Hochman after Baca’s May 2017, sentencing.

After the first rejection by the Ninth—which was rendered in an efficiently-worded opinion—the attorneys for the once powerful sheriff asked for the en banc hearing, which is granted infrequently, and would have meant that the court’s Chief Judge, and ten other randomly drawn judges, would again hear arguments about why Baca’s conviction should be reversed.

With this new rejection, Baca’s last option would be the Hail Mary of trying to convince the U.S. Supreme Court to hear his appeal.

Since SCOTUS hears only 100-150 of the more than 7,000 cases that it is asked to review each year, a trip to the Supremes is inarguably a long shot.

The the 76-year-old Baca—who will be 77 on May 27—was convicted of the three federal charges on the afternoon of March 15, 2017.

“The former sheriff has now been held accountable for overseeing a widespread scheme to obstruct justice by issuing orders designed to protect a corrupt culture,” said then Acting U.S. Attorney Sandra Brown on the steps of the federal courthouse following the conviction. “Lee Baca knew what was right and was wrong. And he made a decision. His decision was to commit a crime.”

That was Lee Baca’s second trial.

In his first trial,  in December of 2016, the jury declared itself hopelessly deadlocked after 24-hours of deliberation, with eleven jurors voting to acquit, and a single juror holding out for a conviction.

Judge Anderson declared a mistrial.

The near-acquittal caused many to believe that the government would not choose to retry the former sheriff.

But on January 10, 2017, the government announced it would retry him. And the prosecution team began rigorously retooling their trial strategy.

It took the eight-man four-woman jury approximately fourteen hours to arrive at their unanimous verdict just before 2 p.m. on March 15, 2017.

Just shy of two months later, a somber Anderson sentenced Baca to three years in a federal prison.

“A custodial sentence”—meaning prison—“is an important step in restoring the public’s confidence in our criminal justice system,” said Anderson just before he announced the sentence to the man who had been elected five times by healthy margins to lead the nation’s largest sheriff’s department.

Such a sentence was a “necessary deterrent to our public officials, to law enforcement and to the public,” according to Anderson

“Alzheimer’s disease is not a get out of jail card,” the judge added.

Guilty mind

Baca was first officially diagnosed as having some kind of cognitive impairments on May 13, 2014, and WitnessLA broke the news of his early Alzheimer’s diagnosis in May 2016.

That the former sheriff was struggling with Alzheimer’s disease was the underpinning of one of the main appeal strategies presented by Baca’s lawyers to the Ninth Circuit at his November 6, 2018, hearing.

His defense team explained how they had wished to bring in UCLA psychiatrist Dr. James Spar, to testify about Baca’s diagnosis of early-stage Alzheimer’s disease, and what such a diagnosis suggested about his cognitive ability in the years prior to his diagnosis.

Specifically, the defense wanted Spar to tell the jury about what he described as the likelihood that the former sheriff was suffering cognitive impairment during the four-and-a-half hour interview with federal officials on April 12, 2013, during which time he allegedly lied to the feds in four different instances.

Judge Anderson ultimately ruled against Dr.Spar being permitted to testify, writing:

“Evidence linking defendant’s current diagnosis to the charges is entirely speculative and inadmissible, is the product of unreliable methodology, artificially limited facts, and bare speculation.1/ Indeed, undefined pronouncements including those in which Dr. Spar opines that defendant’s current diagnosis “may have been demonstrating clinical symptoms” and that there was an “increased probability” that defendant’s condition “negatively affected his ability” in 2013 would not help the trier of fact to understand the evidence or determine a fact in issue and would only serve to confuse the jury….

Yet of all Baca’s stated reasons for appeal, the issue about the exclusion of Dr. Spar was the issue that seemed the most promising on appeal—especially given the fact that, when the Ninth Circuit panel granted Baca bail, they wrote that that the defense attorneys’ point about the excused expert witness was “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 panel, “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.”

But, when it came down to writing their opinion, the panel concluded that the district court “did not abuse its discretion in rejecting Dr. Spar’s testimony as unreliable given his speculation about whether Baca suffered from cognitive impairments when making his false statements, and, if so, how those impairments affected his answers.”

Nor did the exclusion Spar “deny Baca his constitutional right to present a defense,” as the Baca’s attorneys had suggested, wrote the panel.

Seven members of the LA County Sheriff’s Department have been convicted of obstruction of justice and conspiracy to obstruct justice for following orders handed down by Lee Baca, and former undersheriff Paul Tanaka, Baca’s once feared second in command.  An eighth department member who flipped for the prosecution, also received a federal prison sentence.

In total, misconduct and brutality during the Baca/Tanaka reign resulted in federal criminal convictions for 21 department members.

The 2013 portrait of Lee Baca above was taken by photographer and artist, Saxon Brice, whose remarkable paintings were most recently featured in the film Velvet Buzzsaw.

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  • Hubris. It’s was Baca’s downfall. He thought he was a lot more powerful than he was and the Feds thought otherwise. He wasn’t an evil man, but he allowed an evil man to take over his Department. For all the good he did, such as emphasizing education through the Deputy Leadership Institute, LASD University and Education Based Discipline, he’ll always be remembered as a disgraced Sheriff.

    I don’t know how impaired he was at the end of his administration, but it wasn’t bad enough that he didn’t know what he was doing.

    He needs to do time….if not for HIS actions, then at least for the evil man he unleashed on so many people’s careers and lives, not to mention the damage to LASD’s reputation.

  • @Apostle, you are right about the man suffering from an extreme case of hubris but so wrong about him not being evil – unless you think that evil people only kill other people and rob banks. Baca’s evil was rooted in his lack of values and integrity. You know, the kind he preached. This is the guy who was giving away badges to his political cronies with his “Special Reserves” program until one of them got busted flashing his badge and they had to track all the badges down and quietly end the program. Perhaps you forgot about that. And Baca is the guy who hired Bishop Turner and Mike Yamaki as “Special Deputies.” Two guys who had no duties – one who was a poverty pimp and whose county car the narco dog went nuts over when he had turn it in when Baca left office, and the other who had an office at Riveria Country Club. Maybe you forgot about those two esteemed Department members. And Baca was the guy who wrote an letter to President Clinton asking for clemency for the drug-czar-son of a downtown political shaker and mover. Baca had the nerve to vouch for the kid’s character (the kid was from Minneapolis) in a case that had absolutely nothing to do with the LASD or even California. Small item, I’m sure it slipped your mind. But maybe you do remember this is the Baca who made sure Mel Gibson and Parris Hilton got free passes and skipped jail – ask the Deputy who had to endure the shit Gipson spewed at him if he thinks Bada is evil, but I guess that is in the eye of the beholder, eh? I’m sure HE remembers that caper. Perhaps you remember this is the Baca who started the now LASD SOP practice of “pay-to-play” by promoting all those who helped in his campaign that got him initially elected. You know, (among others) the famous duo of Stonich and WALDIE – who never saw a massage parlor he could pass up. Maybe you were one of those who rode the gravy train. Those who did get promoted were then lucky enough to be pressured to give to Bada’s political campaigns – there was even a pay schedule, so much for Captains, Commanders and Chiefs with the aforementioned Stonich being the bag man. Maybe you didn’t have to fork over your dough (nor did I, but I knew some that did) and was not aware of that little practice.

    The above is just off the top of my head and I did not even get in to the fact that he was warned over and over about the “cancer” that was Paul Tanaka.

    Evil or unethical? Don’t know, but Baca’s values and mine are not the same, that is for sure. There was an old radio program in the 30’s which used to start with the line “Who knows what evil lurks in the hearts of men?” I don’t know, but I think Baca has his share.

  • Exactly, we’ll said. LASD still suffers from the damage caused by the little man. His cells have metastasized and are still present within elements of the current administration.

  • Nope…didn’t forget about any of that, “Just Say’n.” I can think of more scandals to add to your list. But you nailed it in your last paragraph…evil or unethical? I’d say it was definitely the latter and not so much the former.

    As far as the promotions, I’ve never donated to ANY person on this Department (except for the THOUSANDS of dollars I’ve paid for Girl Scout cookies….but then, we’ve ALL done that). It may or may not be the reason I haven’t gone very far up the ranks, but I have NO complaints.

    Again, I may be splitting hairs, but Baca’s poor judgement and corrupt/unethical decisions didn’t get him anywhere NEAR the (mini) Darth Vader persona that was Paul Tanaka.

  • Why don’t you guys call each other or grab some cold ones and discuss your diatribes together. Who the fuck digs up a 2012 article and why on earth are we still talking about Baca. This blog is just a bitter old man/PPOA blog. No one else from the general public sees it. You yahoos just keep writing novels trying to sound smart. After you post a novel, I bet you call each other and puff your chests. It’s really pathetic. Seriously guys, I’m kinda talking shit, but look at yourselfs. Who in their right mind would be doing this?

  • “…And why on earth are we still talking about Baca.”

    You forgot (?) the question mark, but the answer is easy: the U.S. Ninth Circuit just made its decision yesterday, so Baca is still very timely.

  • Just Say’n… very well said. I had forgotten many of the misdeeds and started to just remember to nice old man that would show up to functions. I guess there was also a very dark side. I will disagree to a small extent and use Star Wars as an analogy. Like Darth Vader I think Lee still had good in him and could have done better. Unfortunately he was being lead by true evil in Paul Tanaka. I may be wrong I admit, but I choose to believe if Lee had more honorable people in his close circle he would have been a great Sheriff. But we will never know. I’m sure many would agree McDonnell’s failure likewise was trusting the wrong people (Teran, Lin) and now Alex is doing the same. I hope someday we will have a Sheriff with honor, but, sadly it is at best a dream.

  • So true, re: Baca & Tanaka. We all knew that Baca was the shot-caller with the little guy as the enforcer.

    The damage was more pronounced when Baca was out of town/country. FYI, the shenanigans within LASO have not ceased, nor will they anytine soon.

  • It’s difficult to put a stop to something when a large group of opportunist bite from the same rotten apple. Desperate times turn into desperate measures and little by little they start slipping. But investigators making side deals with department members friends and family is taking it to a different level. It keeps one on their toes!

  • AV has his hands full with the Board of Supes and the LA Times trying to rally public opinion against him, all while ignoring the staggering amount of damage he inherited from McBuckles. I have yet to see evidence of any malfeasance, so if someone has please lay it out. Oblique accusations without substance are not very helpful.

  • @Just Say’n, you missed a big one. Baca got pissed that the Feds had the nerve to investigate the crap that was going on at CJ (thanks to his boy Tanaka – let’s not forget Tanaka killed Captain Clark’s attempt to move the 5000 boys) so he decided to play hard ball with the feds and initiated what became “Pandora’s Box.” Then when the shit hit the fan, he was no where to be seen and left his troops, who, in MHO were acting in good faith and trusting that he knew what he was doing, were left holding the bag.

    THAT was inexcusable, cowardly and, yes, evil.

  • I do agree somewhat but trust me, the damage that LASD has suffered is much much more than what the last four years has produced.

    The damage “inheritance” has been passed on for many moons and it did not start with McDonnell.

  • Happy Easter All!!! Including those self serving bastards who feel/felt their careers and family is/was more important than those they ruined. I worded it in this manner because a few have since retired. Enjoy your day, because you never know what tomorrow will bring.

  • Mr. Baca: Come forward and tell what you know and let the innocent go. Sadly, you blew it and blew it badly. Stonich and Waldie cut you loose or are you too dumb to see it. Stonich and Waldie are laughing their asses off knowing you took the fall for them. Why are you protecting them? The only person who has stayed with you has been Carol. She deserves better. Have Hochman contact the USAAG and make a deal that maybe can keep you out of prison.

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