THE RETRIAL OF LEE BACA: During Opening Statements the Prosecution & the Defense Drag a Ghost Into Court

THE GHOST IN THE COURTROOM

On Friday afternoon in the courtroom of U.S. District Court Judge Percy Anderson, lead government prosecutor Brandon Fox and lead defense attorney Nathan Hochman presented their respective opening statements in the retrial of former longtime Los Angeles County Sheriff Leroy Baca. During their presentations, each of which lasted around 90 minutes, both Fox and Hochman spent a lot of time invoking the name of someone not present.

Before the openings began, the big question among trial watchers was how the government might retool its strategy to better convince the just-sworn-in jury that the tall, nicely-dressed 74-year-old in the defendant’s chair was guilty of ordering those under him to illegally derail a federal probe into brutality and corruption in the Los Angeles County jail system.

Then the prosecution had to further prove to the jury that Baca had lied to federal officials about his alleged part in ordering actions that had thus far resulted in eight former members of the Los Angeles Sheriff’s Department being sentenced to federal prison.

In December of last year, when Baca was tried the first time for obstruction of justice and conspiracy to obstruct justice, the prosecution put on a smart case, which arguably was quite convincing. Most of those in the jury panel, however, were not at all persuaded. The outcome was a hung jury, with eleven panelists voting to acquit the former sheriff. Only one jury member held out for conviction, reportedly to the great frustration of the other eleven. According to the two jurors who talked to the press afterward, the eleven who voted to acquit were furious at the hold out whom they felt “just didn’t get it.”

Obviously, if the government wished to avoid racking up two defeats in a row, that 11/1 deadlock strongly suggested that some reanalysis was required.

This meant that the defense too would have to do its own retooling in anticipation of any new moves that the feds might make.

Indeed, when Friday afternoon’s opening statements were finished, much reshaping and sharpening of strategies was in evidence. Yet, perhaps the biggest new element in both presentations was each side’s liberal use of a ghost at the proceedings.

The ghost was, of course, the once powerful, now infamous former undersheriff of the LA County Sheriff’s Department, the former crown prince who, at one time, seemed irrevocably destined to be the next head of the department after the four-time elected Lee Baca decided to step down.

In other words, the ghost was Paul Tanaka.

Tanaka, as most readers know, did not become Lee Baca’s successor (although he made it into the election runoff). Instead, in April 2016, he was convicted of obstruction of justice and conspiracy to obstruct justice, and began serving his five-year sentence in federal prison in January.

Yet, interestingly, despite his spectral presence in the dueling narratives of the case that each side presented on Friday, neither the prosecution nor the defense seems to have any interest whatsoever in calling the corporeal Tanaka to the witness stand.

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BACA “RAN THE CONSPIRACY”

Another thing the two vocal jurors from the last trial made plain was the fact that, although they believed some bad stuff had probably gone on in the jails, and possibly some department members might have tried to obstruct the federal investigation, the former sheriff hadn’t been involved with it. Baca was way too busy running a huge law enforcement agency to trifle with such things, they said, or words to that effect.

It was this issue that prosecutor Fox addressed at the top of his opening.

“Mr. Baca ran the conspiracy,” said Fox. And “he put one man in day-to-day charge of the conspiracy. For that job “he picked Paul Tanaka.”

Fox described a bond between the two men that was personal as well as professional, which Baca himself had described as a “father and son relationship.” To make the point, Fox played a recording of Baca saying just that. On the recording, the former sheriff told how he had “raised Tanaka through the ranks.” Paul Tanaka, said Baca “had a unique talent of doing exactly what I wanted done.”

In the first trial, the defense portrayed the former sheriff as a paragon of transparency and honesty who pulled no punches as he acted in the best interest of the department to which he had given his life for 48 years.

To preview how he intended to preemptively counter that defense theme, Fox also played another section of the Baca recording in which the former sheriff talked about viewing his interaction with the FBI and the U.S. Attorney’s office during the period in question as “a chess match.”

Only two people in the sheriff’s department were permitted authorize the actions of the teams of deputies who hid a federal informant from his FBI handlers, tampered with potential federal witness, and spent days surveilling two working FBI agents, Fox said. Those two people were “Lee Baca and Paul Tanaka.”

The former sheriff “authorized, monitored and condoned” the conspiracy, Fox continued. And Tanaka carried it out.

Proving a charge of obstruction of justice, is complicated. Presumably with this challenge in mind, Fox was extremely methodical as he outlined step-by-step how the FBI’s investigation of brutality and corruption inside the county’s jails came about, how prevalent the abuse of inmates by deputies appeared to be, and how difficult the allegations of abuse and corruption were to prove when, in most cases, it was just the word of an inmate—or inmates—against some nice clean cut person with a badge and a gun.

Yet the accounts of horrific abuse kept piling up, Fox told the jury. Thus the FBI decided to launch a grand jury investigation into the matter, along with an undercover operation that included an inmate/informant named Anthony Brown.

Brown, a convicted band robber but a willing and prolific informant, agreed to participate in a sting in which he persuaded a corrupt sheriff’s deputy named Gilbert Michel to bring him a contraband cell phone in return for cash bribe.

Fox told how, on August 8, 2011, the initially successful cell phone sting came to an abrupt end after another sheriff’s deputy discovered Brown’s contraband phone when Brown was out of his cell on a medical visit.

Eventually, the head of the FBI’s Los Angeles Bureau, Steve Martinez, called Baca and told him about the inmate, and the phone, said Fox. Martinez also told the former sheriff that the FBI would like its phone back. In a subsequent call, Martinez mentioned something about the feds needing access to their informant soon too.

Two days after the first call from Martinez, according to the prosecution, Baca called a meeting and publicly put Paul Tanaka in charge of what would become a six week operation, ordering those assembled to “isolate” the inmate, and “criminally investigate” the FBI’s undercover operation. This led to such actions as hiding federal informant Brown from his FBI handlers, tampering with potential federal witnesses, and falsely threatening FBI Special Agent Leah Marx Tanner with arrest, and more—in other words, all the actions that are at the heart of the government’s obstruction charges.

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GUNS & SMOKE

One of the jurors from the previous trial talked about the lack of “a smoking gun,” tying Baca to the conspiracy.

Thus, on Friday, halfway through his presentation, Fox brought up the word EVIDENCE printed in large block letters on the PowerPoint screen he’d been using, just in case anybody got missed the point. Then the prosecutor listed some of the metaphorical guns that he and the rest of the government’s team intended to present, hopefully accompanied by visible “smoke.” These included such witnesses from the last trial as former assistant sheriff Cecil Rhambo, who testified previously about how he’d warned Baca not to “Fuck with the FBI,” that the feds had done nothing illegal with their undercover investigation, or their sting that involved Deputy Michel taking a bribe to bring in a contraband cell phone to the FBI’s inmate/informant. “We’re the suspects,” Rhambo said he told the former sheriff. “Give them back their phone.” If the sheriff tried to get in their way, “that’s obstruction of justice.” But that Baca hadn’t listened, Rhambo said.

There were also references to new witnesses, and new pieces of physical evidence. For example, while Fox didn’t say as much explicitly, it appears that former LASD Lt. Greg Thompson, who was a central player in the hiding of FBI informant Anthony Brown, will be called to testify this time. (Thompson has already been convicted and sentenced for being part of the conspiracy.) It appears that the prosecution also intends to call former LASD Captain Tom Carey, who was in on many of the crucial meetings and email exchanges during the six week operation. (Carey, who was indicted as well, has already taken a reduced plea deal but has yet to be sentenced.)

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COMPETING NARRATIVES

After the prosecution finished, lead defense attorney Nathan Hochman stood and began with his team’s version of events:

On August 18, 2011, at about 5 p.m. in the afternoon, Sheriff Baca received a call from the head of the Los Angeles office of the FBI, Steve Martinez, said Hochman.

“It was not unusual for the two to talk,” he told the jury. The sheriff’s department and the feds worked together on a regular basis.

But this call was “unprecedented.”

“Never in sheriff’s department history” had the FBI smuggled in “dangerous contraband,” namely the cell phone, and “given it to “a violent and dangerous inmate,” meaning Anthony Brown, who is, Hochman reminded the jury, a bank robber who is now sentenced to, quite literally, hundreds of years in prison.,

The sheriff needed to know how many deputies were involved in wrongdoing, and how many inmates, said Hochman.

Like Fox, Hochman made good use of the PowerPoint and block letter phrases. In this case, the phrase was: HOW BIG A PROBLEM?

When he heard what the FBI was doing, said Hochman, the sheriff needed to find out just how big a problem he had in the jails for which he was responsible. But Martinez wouldn’t give Baca the information he “needed to do his job,” Hochman told the jury

So he ordered an investigation, Hochman said. And “carrying out that agenda was not an abuse of power.”

Attorney Hochman then outlined in extensive detail the overwhelming complexity and size of the Los Angeles Sheriff’s Department, showing a diagram of the extensive command structure with Baca’s name at the very top.

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THE GHOST, PART 2

Around a third of the way through his opening, Hochman introduced his version of the ghost.

The sheriff’s “number two person” who runs the department’s “day to day operations” was Paul Tanaka, he told the jury. Hochman also confirmed that his client had put the former undersheriff in charge of his investigation of the fed’s investigation.

“But Paul Tanka did not share the same loyalty” toward the sheriff as Sheriff Baca had for him, Hochman said. Outside of Baca’s presence, Tanaka “had his own agenda.”

Tanaka also had “an old school view that inmates were the enemy.” (Hochman had already mentioned that the former sheriff saw inmates as individuals who could be helped.)

And Tanaka “was controlling the flow of information” to the sheriff.

Sheriff Baca viewed the FBI as his partner, Hochman told the jury. But undersheriff Tanaka “had another agenda.” He viewed the FBI as the enemy.

Hochman is aware that, by the time the defense presents its case, the jury will already have heard—via the prosecution—several eyewitness accounts of Tanaka screaming F-bombs in relationship to the feds.

Plus, the defense reportedly has retired LASD Commander Bob Olmsted on its witness list, and Olmsted, who in the last trial was a witness for the prosecution, can easily testify about such issues as Tanaka’s “personal agenda.”

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“SWEETHEART DEALS” & “HIGHLY DANGEROUS AND VIOLENT” INFORMANTS

In his opening, Hochman suggested how the defense intends to challenge some of the prosecution’s new witnesses, whom he described as having “sweetheart plea deals” with the feds “to testify against sheriff Baca.”

Hochman also previewed how the defense plans to come after Special Agent Leah Marx Tanner. The idea is to characterize Tanner, who ran the FBI’s undercover operation, as inexperienced, and the FBI’s cellphone sting as irresponsible and extremely dangerous, thereby characterizing Baca’s insistence on investigating the feds’ undercover probe as not only legal, but the only responsible thing to do.

Another of Hochman’s themes was to paint a picture of the former sheriff as a reformer who rigorously and continuously investigated his own jails, saw the inmates with compassion, and even brought in his own outside “watchdog” in the person of “nationally recognized civil rights prosecutor” Michael Gennaco and Gennaco’s Office of Independent Review, which Baca “funded.” (Actually the Board of Supervisors brought in Gennaco and the OIR and paid the OIR’s bills. Baca had little choice in the matter. But nevermind all that for the moment.)

This particular thread was interesting since Judge Anderson had ruled before the new trial began that the defense could not use the “good works” strategy that Hochman and company had employed in the last trial, using people like Mike Gennaco to suggest to the jury that the former sheriff was such an reform-minded lawman that the idea of interfering with the feds’ investigation into problems in his jails would be completely out of character.

(After both opening statements were finished, and the jury was out of the courtroom, Judge Anderson had a few angry things to say to Hochman about the reappearance of Gennaco.)

As for the former sheriff’s alleged lying to federal prosecutors, Hochman told the jury that, on April 12, 2013, at age 71, Baca voluntarily subjected himself to four-and-a-half hours of interviews, at which time he answered hundreds of “memory questions” about “what happened 20 months before.” (The use of the term “memory questions” suggests that maybe the defense hasn’t entirely given up on the Alzheimer’s defense when it comes to the charges of lying to the feds, despite Judge Anderson’s ruling against the appearance of their UCLA Alzheimer’s expert.)

The prosecution’s allegations, he said, were based on four questions, the answers to which lasted “45 seconds.” That was, Hochman said, “45 seconds” measured against “a 48-year career” in the Los Angeles Sheriff’s Department.

“Paul Tanaka is the heartbeat and driving force behind this conspiracy,” Hochman said as he moved to his conclusion.

“Sheriff Baca did not abuse his power. He used his power to ensure that thousands of people in the jails” were kept safe.

The jury of four women and eight men appeared attentive as the two competing versions of events were unfurled before them in the courtroom.

Whom they will ultimately believe is, at this point, anybody’s guess.

The trial, which is expected to last approximately two weeks, will resume on Monday morning at 8 a.m.