FEBRUARY RETRIAL FOR BACA
Government prosecutors announced Tuesday that they would retry former Los Angeles County sheriff Lee Baca on counts of obstruction of justice and conspiracy to obstruct justice. These were the charges that were tried this past December and resulted in a hung jury and mistrial just before Christmas, with 11 jurors voting to acquit. Only a single juror held out for conviction.
Lead prosecutor Brandon Fox announced the government’s decision in a Tuesday morning hearing in the courtroom of U.S. District Judge Percy Anderson. Fox said the government also intends to try Baca at the same time on a third count of lying to federal officials. The charge of lying to the feds was previously scheduled to be tried separately.
Opening statements in this new trial are scheduled for February 21, 2017.
ANOTHER TUG OF WAR WITH PRE-TRIAL MOTIONS
Both the defense and the prosecution indicated their intent to file motions to shape aspects of the scheduled February trial to their individual advantage.
The government, for example, intends to try to exclude UCLA psychiatrist Dr. James Spar, a witness for the defense who will introduce the idea that the former sheriff’s cognitive ability was impaired by Alzheimer’s disease in the spring of 2013 when he was questioned for four-and-a half hours by federal officials, at which time he allegedly lied to them regarding his involvement with the events in August and September 2011, which are the basis of the obstruction of justice charges.
Baca was first officially diagnosed as having some kind of cognitive impairments, on May 13, 2014. According to the defense, Dr. Spar would testify to the probability that, at the time he was interviewed by the feds, Mr. Baca was in the “pre-clinical stage” of Alzheimer’s, which Spar contends “can occur 10 years or more before the onset of clinical symptoms.” Or alternately, Baca, according to Spar, could have been in the Mild Clinical Impairment” or MCI stage of Alzheimer’s in the spring of 2013.
Thus, if Dr. Spar is allowed to testify, he will reportedly suggest that Baca’s not yet diagnosed early stage Alzheimer’s disease likely compromised the former sheriff’s answers to the government’s questions in April 2013.
Prosecutor Fox also indicated that the government intends to file a motion asking that the former sheriff be precluded from wearing a lapel pin the shape of the Los Angeles Sheriff’s Department star, a non-official, quarter-sized pin that Baca has worn to every trial day and hearing.
For its part, the defense, led by attorney Nathan Hochman, objected to the government wanting to un-severe the obstruction counts, from the third count of false statements, thereby stitching the two trials back into one. “It shows bad faith,” Hochman said. Judge Anderson ruled in the prosecution’s favor.
THE DOUBLE JEOPARDY DEFENSE
Most interesting, however, was Hochman’s announcement that he might file a motion claiming that the retrial on the two obstruction of justice charges constitutes double jeopardy.
Hochman did not explain much about his thinking to the judge. That will be outlined in the defense’s motion. But former government prosecutor, Miriam Krinsky, hazarded some guesses. (Krinsky was also the executive director for the Citizen’s Commission on Jail Violence.)
“Double jeopardy means that you can’t twice put a person [legally] at risk” for alleged criminal conduct, Krinsky said. If you’ve tried once and the individual has not been found guilty, “you can’t go back to the well.” You don’t get a do-over.
But that principle, said Krinsky, “has never been applied to a hung jury.” The defense is likely going to argue, she said, “that this really shouldn’t be viewed as a hung jury,” that the jury would have found Lee Baca not guilty “had the court not interfered in that process”—namely by declaring a mistrial.
“That would be an unprecedented argument to see prevail,” said Krinsky. She’s never heard of such an argument carrying the day, she said—“meaning that the government” would not be allowed “to go back and try to convince the next jury that a final verdict should be reached in this case.”
(We’ll let you know what the defense argues when the motion is filed.)
THE GOVERNMENT’S CHALLENGE
Having come mighty close to an acquittal once, most agree that the prosecution faces some interesting challenges a second time around—although it is possible the government may be helped by the presence in the retrial of the third charge of lying to federal officials, which suggests Baca might not have been as “open and transparent” as the defense successfully suggested back in December.
But there is also the matter of the former sheriff’s Alzheimer’s diagnosis, which is likely to, understandably, draw sympathy, which in turn presents yet another set of challenges for the prosecutors.
The prosecution, said Miriam Krinsky, “will have to show that [Baca] was trying throughout to circle the wagons” to keep the government from learning what had gone on in the county jails, “and what had gone wrong in his department.
“There’s no dispute about what happened. The question is why did it happen?” Krinksky said. Were the actions simply to get to the bottom of the matter of an illegal cell phone in the jail? “Or were they to obstruct justice?”
I am a bit surprised since the previous case findings of 11-1. Just proves that the feds are not happen unless they win. Baca was the boss and should be help accountable for what his subordinates did. The LASD just updated their policies with regards to captains, letting them know that they themselves will be held to answer for any force related incidents within their facilities. I wonder if Baca wakes up every morning wondering why he did not cut down too tall Paul when he first began showing signs of a power hungry leprechaun. I know, he loved the money that came in. Well thank you previous command staff, and some current staffers, for making some of the darkest days in history for the LASD.
I just called in Santa from the edge of the cliff where he’s been sitting since Christmas. He said he’d jump if the prosecutors did not refile the case. Now we need a successful prosecution!
Tanaka starts his five year stretch in the next few days. Bring him back to testify as was Sexton, in shackles, Federal jumpsuit and handcuffs. I will fly back to California just to see that award winning performance. I’ll make sure to wave at him and give him a thumbs up and a wink.
Thank heaven for heroes like Brown and the ACLU for even bringing this injustice to the forefront. Without their efforts, this wouldn’t be even be heard
There you go again calling the murderer Brown a hero. You have a warped sense of humor. Brown is serving 400 plus years and you call him a hero. You have a Charles Manson personality and should seek help. Maybe they let Anthony Brown have computer time in prison and that’s why you keep putting him on a pedestal.
Bringing injustice into view, saving prisoners from getting beat, ratting out dope dealing Deputies, YEP, hero in my book. Put some money on the books for those convicted Deputies and feel better about yourself. …
Ok, Anthony Brown, none of the convicted 7 beat anyone.
Pretty much a crapshoot which mimics double jeopardy. Forcing the jurors hand will only undermine them, which could result 12-0 in Baca’s favor
Does anybody else question the manner in which the government handled Dr. Baca’s first trial?
Mr. Fox and his team had a solid prosecution record up to this point. The followed the “Work your way up the ladder” strategy quite well.
There was an initial plea agreement that treated Dr. Baca very lightly in relation to his subordinates, and that was rejected by Judge Anderson. At trial, we never heard from a witness who specifically was able to point to Dr. Baca and that testify that they had first-hand knowledge that Dr. Baca was a player in the plan. We only heard from two in-custody deputies who inferred that he knew, and from departmental executives who cautioned him against such a plan.
But there are at least five potential witnesses (Paul Tanaka, Tom Carey, Steve Leavins, Greg Thompson and Bob Olmstead) who could have provide such specific knowledge. I’ve followed the trial as closely as I could from media reports, and did not see any indication that any of these folks testified. I can understand the Fifth Amendment issues involving Tanaka, Leavins and Thompson, but there are avenues to deal with those. Carey is subject to a plea agreement calling for cooperation. Olmstead has been pretty much above reproach. Why did they not testify.
To borrow an analogy from the boxing world, it looks like somebody “took a dive” on this one.
Thanks – Is there a summary of what his testimony consisted of? When he testified before the Citizen’s Commission, he was pretty clear that he imparted to the Sheriff the extent of jail abuse, and his perception of the efforts of the Undersheriff to frustrate his corrective efforts.
Rick, you are correct that Olmstead was a whistleblower and knew about the wrongdoings in the jail. You’ll recall it was after Baca blew him off, he went to the FBI and got the ball rolling. But it was sometime later that the FBI started their investigation and the obstruction took place. So Olmstead did not have firsthand knowledge of the efforts that Baca and the Dept took to hide Brown (who is NO hero) and therefore obstructed their investigation. But I’ll bet they get some of those other folks on the stand next time.
Good distinction. You’re right, Olmstead’s dialogue with Dr. Baca preceded the Anthony Brown matter. Olmstead would be a good witness to show Tanaka as a bad actor, and to show that Baca was on notice as to the character of Tanaka’s activities, but Olmstead could not give meaningful testimony regarding Brown.
But my original point remains, Tanaka, Leavins, Thompson and Carey certainly could. And Carey would be in an ideal position to do so, lacking the Fifth Amendment issues and due to his plea agreement.
Any idea why none of those folks were called?
Dr. Baca? Who are you referring to? Is he a Medical Doctor?
Dr. Baca holds an earned doctoral degree from USC and has earned the title. Using it is simply a matter of common courtesy regardless of how you view his service as Sheriff.
The baggage along with their background (Tanaka, Leavins & especially Thompson) would not help the Prosecution at all. They would show their last ounce of common sense by getting toasted & roasted on the stand. Baca can’t be a looney tune and Sherlock Holmes simultaneously