On Monday, February 11, the Ninth Circuit Court of Appeals affirmed the conviction of former Los Angeles County Sheriff Lee Baca for charges of conspiracy to obstruct justice, obstruction of justice, and making false statement to federal investigators—all charges that came about when the once powerful sheriff got in the way of a federal investigation into brutality and corruption in LA County’s then scandal-plagued jail system.
The Ninth Circuit’s efficiently-worded opinion brings the 76-year-old Baca—who will be 77 on May 27—a big step closer to beginning his three-year federal prison sentence.
Baca was convicted of the three federal charges on the afternoon of March 15, 2017, by an eight-man four-woman jury. The jurors deliberated for approximately fourteen hours before reaching their verdict.
It was Lee Baca’s second trial.
When the former sheriff was tried the first time around in December of 2016, the jury declared itself hopelessly deadlocked after 24 hours of deliberation, and U.S. District Judge Percy Anderson declared a mistrial.
Two months after his conviction at the end of trial two, U.S. District Court Judge Percy Anderson sentenced Baca to three years in a federal prison.
“Alzheimer’s disease is not a get out of jail card,” Anderson said just before he announced the former sheriff’s sentence on May 12, 2017.
(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.)
Baca’s “fall from such heights is tragic for many reasons,” Anderson told the packed courtroom in a fierce prelude to the actual sentencing. Yet however painful Baca’s fall might be, the judge said, it was not enough to counterbalance the necessity to hold the former sheriff accountable.
The former sheriff betrayed “inmates who were his responsibility” who were consequently “brutalized by deputies” whom the former sheriff then protected, continued Anderson,. He then addressed Baca directly. “Your actions embarrassed the thousands of men and women who put their lives on the line every day.”
The failed appeal
Baca’s lawyers appealed the conviction to the Ninth Circuit right away, and the appeals court granted the former sheriff bail, while he waited for the slow appeals process.
During the November 6, 2018 hearing at the Ninth it was difficult to guess what direction the three-judge panel was leaning.
But on Monday, February 11, we found out.
Ninth Circuit Judges Johnnie B. Rawlinson, Andrew D. Hurwitz, plus U.S. District Judge Stephen R. Baugh from the Western District of Missouri—who is not with the Ninth but was designated to sit in on the panel—affirmed Baca’s conviction in a six-and-a-half page opinion.
(We’ll get to the details of the opinion in a minute.)
Baca’s attorneys reportedly intend to ask for an additional en banc hearing from the appeals court. If granted, this would mean that the court’s Chief Judge, and ten other randomly drawn judges, would hear the case again. If the Ninth says no to the en banc hearing, which they do more often than not, then there is always the option of trying to persuade U.S. Supreme Court to hear the appeal.
If those strategies fail, the way is cleared for Judge Percy Anderson to set a surrender date for Lee Baca to begin his federal prison term.
“The Ninth Circuit opinion confirms the principle that no one is above the law,” said U.S. Attorney Nick Hanna on Monday, of the appeals court’s decision.
Hanna, who was appointed by the Trump administration in January of last year, stated that the government’s prosecutors “presented a fair and thorough case that demonstrated Mr. Baca acted corruptly” by obstructing a federal grand jury investigation.
“Instead of cooperating with a federal investigation that ultimately was concerned about improving conditions in the county jails,” said Hanna, “Mr. Baca chose to obstruct and then lie to federal authorities. I am extremely proud of the prosecutors and the FBI agents whose work led to significant reforms in the Sheriff’s Department.”
Alzheimer’s and the exclusion of a witness
When the hearing in front of the Ninth Circuit panel took place, on November 6, 2018, Judges Rawlinson, Hurwitz and Baugh seemed particularly interested in the contention from Baca’s attorneys, that Judge Percy Anderson, who presided over both of Baca’s trials, had “erred by excluding expert evidence” about Baca’s Alzheimer’s disease.
The former sheriff’s defense team 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 on four different occasions.
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 seemed perhaps the most promising—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, although at the November 2018 hearing the judges asked a lot of questions of both Baca’s attorney and the government’s attorney on the topic, when it came 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 of that evidence “deny Baca his constitutional right to present a defense,” as the Baca’s attorneys had suggested, wrote the panel.
Anonymous juries and mistrials
The panel of judges also refuted other points put forward by Baca’s attorneys in their appeal, such as their claim that Judge Anderson wrongly insisted on “empaneling an anonymous jury.”
The district court’s decision to empanel an anonymous jury, wrote the justices, “was reasonable in light of the highly publicized nature of this case, Baca’s and his co-conspirator’s positions as former high- ranking law enforcement officers, and the nature of the charges at issue.”
Anderson also “minimized any risk of prejudice” to Baca, the Ninth wrote, “by instructing the jury that an anonymous jury was utilized to protect the jurors’ privacy and was unrelated to Baca’s guilt or innocence.”
The panel was similarly terse when shooting down Baca’s attorneys’ contention that Judge Anderson had behaved wrongfully in Baca’s first trial, when he declared a mistrial after the jury declared itself hopelessly deadlocked.
“Given the jury’s assessment and the length of the deliberations,” wrote the justices, “the district court did not abuse its discretion” in declaring the mistrial.
“Finally,” the judges wrote near the end of the opinion, “sufficient evidence supported Baca’s convictions.”
He acted “corruptly,” they wrote, which “as used in the statute means the act must be done with the purpose of obstructing justice.” With regard to this, the government, wrote the judges, “introduced sufficient evidence from which a jury could conclude that Baca acted with this requisite intent.”
Ditto when it came to sufficient evidence “from which the jury could conclude that Baca made his false statements…”
So there you have it.