THE RETRIAL OF LEE BACA : The Defense Calls Only One Witness

The Lone Witness

The prosecution rested its case at 10:25 a.m. on Thursday, March 9, after nine days of testimony in the retrial of former Los Angeles County Sheriff Lee Baca.

Then it was the defense’s turn. Baca’s lead attorney, Nathan Hochman, called his first witness, civil rights attorney Michael Gennaco. Around 90 minutes later, Genneco stepped down, Hochman puzzled many court watchers by calling no one else. The defense rests, Hochman said.

That was it? Reporters and others glanced covertly at each other. The defense’s whole case consisted of one witness?

Okay, yes, before the trial began, U.S. District Court Judge Percy Anderson ruled against allowing Baca and his attorneys to bring his Alzheimer’s diagnosis before the jury. Plus there was a second ruling that prevented the defense from employing the “prior good works” strategy they’d used to good effect at Baca’s earlier trial to suggest that the former sheriff was such a reformer that he would never have gotten in the way of any legitimate investigation by the FBI.

Those rulings were disappointing for the defense, but surely there was another strategy at play here.

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“I’m the Goddamn Sheriff!”

In contrast to the defense, for nearly two weeks, the prosecution brought an array of people to the stand, including the four convicted former department members we wrote about earlier, a cluster of FBI agents, a former LA Times reporter, one of Lee Baca’s former drivers, and more

The government’s concluding witness was U.S. District Court Judge Andre Birotte, who provided a lively finish.

Prior to being nominated for the federal bench by Barack Obama on April 3, 2014, Birotte was the U.S. Attorney, which means he was the chief federal law enforcement officer for the Central District of California, which is comprised of seven counties, and is the most populous of the nation’s 93 federal court districts.

Birotte told the jury he was responsible for bringing back to the district a public corruption and civil rights section. which had been abandoned during the Bush years. He did so, Birotte said, “so the people of the district would have a vehicle” with which to express “concerns” such as legal misbehavior by public officials, and “civil rights violations by law enforcement.”

In 2011, the FBI and his office were engaged in just such an investigation looking into allegations of excessive force and “abuse in the county jail system,” said Birotte, when the FBI decided—with his approval—to launch an undercover operation in order to find out if they could catch a deputy or deputies in the act of engaging in corruption and/or abuse.

As the jury now knew, the undercover investigation successfully netted then deputy Gilbert Michel who accepted a bribe to bring a contraband phone into Men’s Central Jail at the request of jail inmate/FBI informant Anthony Brown.

Brandon Fox asked his witness if he informed Mr. Baca of this undercover operation.

“No I did not.” Birotte said. He made the choice not to tell the head of the department the FBI was probing “to preserve the integrity of the investigation.”

When federal informant Anthony Brown’s contraband cell phone was discovered, and the existence of the undercover operation was outed, Baca was not at all happy to learn of its existence, Birotte admitted.

On the stand, Birotte described two meetings with the former sheriff, plus a phone call, during which Baca “expressed his displeasure.”

The first meeting took place on August 29, at which time, according to Birotte, Baca mostly vented.

Then, Birotte told how, on September 26, 2011, he got a call in the early evening from the head of his civil rights unit, Lawrence Middleton, who told him that two LAPD sergeants had showed up at the home of FBI special agent Leah Marx* and had told her they were going to arrest her.

Birotte said he quickly called his friend, LAPD Assistant Chief Earl Paysinger, who was then second in command at the Los Angeles Police Department. Paysinger was confused and said he knew nothing about the matter, but would check around. Before Paysinger could do so, Middleton called again. “It’s not the LAPD, it’s the LASD,” Birotte said Middleton told him

A phone call or two later, Birotte learned that Leah Marx was safely at FBI headquarters. So he called Baca, he said. Prosecutor Fox put up phone records, which showed that the call came in to Baca’s line at 7:15 pm, and lasted 22 minutes.

“Lee, is this what we’re doing now?” Birotte remembered saying to the former sheriff.

Baca assured him that Marx would not be arrested, then began venting again about FBI wrongdoing, according to Birotte.

The following day, Baca, Paul Tanaka, Birotte and various attorneys met in Birotte’s personal office. Baca gave the then U.S. attorney a 3-page letter dated the day before, in which he threatened to pull his department out of all joint task forces if Birotte didn’t call off the FBI, which he pronounced, “incompetent,” and let the sheriff’s department take over the investigation.

Fox asked Birotte to read portions of the letter aloud to the jury.

“Due to the FBI’s aforementioned incompetence in investigating alleged civil rights violations concerning force taken by deputy sheriffs,” Baca wrote, he wanted the US Attorney and his office to “ameliorate”—AKA dial back—support from the federal investigation into wrongdoing in his jails, and “support the Sheriff’’s Department’s own investigation to it’s conclusion.”

If the US Attorney did not comply, Baca threatened to pull the sheriff’s department out of all the “many ongoing joint missions” in which the department participates with the FBI “due to the breach of trust that will take time and corrective action to heal.”

It was “the most upset I’ve ever seen him,” said Birotte of Baca’s demeanor at the meeting.

Hoping to calm things down, Birotte called a second meeting with Baca and the LA head of the FBI, Steve Martinez.

“You know and I know that law enforcement does investigations like this all the time,” Birotte said he told Baca. “You do it, I do it, the LAPD does it. So why are we having this discussion?”

Birotte also told Baca that the feds were “moving forward,” with their investigation, and that he would keep the sheriff “in the loop.”

According to Birotte’s account, Baca listened, but was not calmed. To the contrary, he turned to the FBI’s Martinez and things went from bad to worse.

“I’m the goddamn sheriff!” he said, according to Birotte. It’s “my goddamn jail!”

“Your guy took a bribe,” Martinez replied.

This caused Baca’s rhetoric to escalate further, according to Birotte. “You want to gun up in here? Is that what you want?!” the former U.S. Attorney described the former sheriff as saying.

Before Birotte stepped down, Fox played another snippet of a Baca interview in which the sheriff commented on his September 2011 outburst to the FBI’s Martinez.

“I don’t really get angry,” Baca said of his words to Martinez. “I get tactical.”

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The Defense Witness Takes the Stand

As for the sole defense witness, Michael Gennaco is a former federal civil rights prosecutor who founded the Office of Independent Review (OIR), a “police oversight and review” entity staffed by attorneys that, at the request of the LA County Board of Supervisors, provided independent oversight for the sheriff’s department for more than a dozen years.

After a series of highly publicized jail brutality scandals sparked, among other things, the FBI investigation that precipitated the case on trial now, an unhappy board of supervisors replaced the OIR—plus the sheriff’s other oversight entity, special counsel Merrick Bobb—and instituted instead an inspector general along with, more recently, a civilian oversight commission.

But, Gennaco explained in his testimony, at the time it was formed the OIR was an entirely “unique” model that allowed him and his colleagues “real time” access to LASD investigations into force incidents. Gennaco also explained how, during the years of the OIR’s operation, he met with the sheriff every week, and delivered regular public reports filled with analyses and recommendations about such topics as how to better “hold deputies accountable for improper force.”

Due to his relationship with Baca, Gennaco said that he had been one of those present at the two meetings between Lee Baca and then US Attorney Andre Birotte, and that while the former sheriff was upset, Paul Tanaka had been “much more hawkish and aggressive,” in his attitude toward the feds’ investigation.

When cross-examined by Fox, Gennaco admitted that, while he could make recommendations, he and the OIR had no actual power. In response to additional questions, he conceded that, in ten years of the OIR’s work, despite hundreds of complaints, “fewer than five deputies” were criminally charged for brutal or corrupt behavior in the jails.

Fox also established that, while Baca included Gennaco in the meetings at the U.S. Attorney’s office, neither the sheriff nor anyone else bothered to mention that the LASD “was criminally investigating the FBI?”

They had not, Genneco acknowledged grimly.

“It was certainly something you would have advised against,” said Fox.

“Correct,” Gennaco said.

Fox continued to push. “No one asked you whether or not the FBI had committed a crime?”

“Correct” Gennaco said again.

“You had no reason to believe that this was anything but an authorized FBI investigation.”

“Correct.”

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A Change of Gears

This is, of course, the second time that the former sheriff has been tried for felony charges by the U.S. government. In December of last year, the government tried Baca for obstruction of justice and conspiracy to obstruct justice, for his alleged actions in August and September of 2011, after he learned that the FBI was engaging in an undercover investigation of corruption and brutality by deputies in LA’s county jail system.

This time around, in addition to the two obstruction charges, Baca is charged with making four false statements to federal officials when he was asked about his part in the alleged obstruction during a four-and-a-half hour interview that took place in April 2013.

The December proceedings ended with a mistrial after the jury declared itself to be hopelessly deadlocked, 11 to 1—-with 11 jurors voting to acquit.

As a consequence, the government did a lot of retooling of its presentation. For instance, in December, the prosecution presented a number of witnesses who testified about the egregious use of force problems in the jail, and how Sheriff Baca allegedly failed to address those problems, despite warnings from concerned supervisors, credible eyewitnesses, and year after year of ACLU reports.

In this second trial, however, prosecutors cut all the jail abuse witnesses entirely, and instead focused on witnesses whom they hoped could definitively portray Baca as the one knowledgeably in command, as the actions that underlie the obstruction charges were carried out. These core witnesses included several people who did not testify in December, most notably former LASD lieutenant Greg Thompson, and former LASD captain Tom Carey, each of whom testified about specific personal interactions they had with Baca that portrayed the former sheriff as very much the boss. Yes, he delegated to his second in command, Paul Tanaka, they said. But Baca was the man who was making the crucial decisions.

The government correspondingly rethought its presentation of circumstantial evidence, like flurries of phone calls between the various players, Baca included, that occurred before and/or after crucial events. In the December trial, the prosecutors had mostly showed lists of the various calls, and the jury seemed unable to follow the trail of breadcrumbs they laid down. This time they had snazzy animated diagrams showing the patterns of the communications, which they projected on screens in front of each juror.

In addition, because Baca is charged with making false statements, the government was able to play for the jury a series of recorded Q & A exchanges between the former sheriff and the federal prosecutors, which they then contrasted with testimony of various witnesses.

So, will all these witnesses, and recordings and diagrams be enough to convince a jury that a well-liked former sheriff committed criminal obstruction of justice—along with allegedly lying four times to federal officials?

Conversely, what about the defense’s high-wire strategy of lengthy cross-examinations of the government’s witnesses, in an effort to tarnish their testimonies, combined with its odd dearth of witnesses of its own? Do they hope to communicate to the jury that the defense need produce no additional witnesses, since the government has simply not proved its case? And, if so, will the jurors buy it?

Closing arguments are scheduled to be delivered on Monday morning.

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Monday Update

On Monday, the prosecution’s closing arguments, presented by prosecutor Lizabeth Rhodes, lasted about 90 minutes. when it was Hochman’s turn, however, he talked for about two-and-half hours, making clear why he decided he needed no more witnesses. The defense’s trategy was use the testimony of the prosecution’s witnesses as its own, reinterpreting testimony and evidence to produce a counter narrative that supported the former sheriff’s claim of innocence. After Hochman sat down, prosecutor Brandon Fox presented the government’s rebuttal, which yanked the narrative back across to the government’s side of the line. Finally, when both sides had finished proffering their dueling stories, the case went to the four-woman, eight-man jury.

More details soon.

So stay tuned.

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*Special Agent Leah Marx is now married, and goes by Leah Tanner. But for clarity’s sake, when we’re writing about this trial and the events of 2011, we will stick with the special agent’s unmarried name.