START OF TRIAL DELAYED
Originally, opening statements for the second federal trial of former Los Angeles County Sheriff Lee Baca were scheduled to begin on Tuesday, February 21. Now, however, jury selection won’t begin until Wednesday, February 22, with opening statements to commence as soon as the jury is seated—which likely means Friday at the earliest.
In the meantime, U.S. District Court Judge Percy Anderson ruled on four pretrial motions that trial watchers were particularly tracking, and none of the four rulings went the way the defense had hoped.
But before we give you the details of the motions, and the rulings, let’s review why the former sheriff is being tried, and for what.
As most readers know, Baca was originally tried this past December for obstruction of justice and conspiracy to obstruct justice for his alleged part in a strategy to deliberately derail a federal investigation into corruption and brutality in the Los Angeles County jail system. The December trial resulted in an 11-1 hung jury, with 11 jurors voting to acquit the former sheriff, and only one holdout favoring a guilty verdict. As a consequence of the jury’s stated inability to break its deadlock, Judge Anderson declared a mistrial.
After the 11 to 1 stalemate, many department watchers figured the government would not retry Baca. Yet, the prosecution team elected to go for round two on the obstruction charges, along with a third charge of lying to federal officials about his alleged involvement in the obstructive actions that have thus far resulted in eight former department members being sentenced to prison.
(The lying-to-the-feds charge was originally going to be tried on its own, as we reported here.)
The motions, detailed below—as you might imagine—represent efforts by the prosecution and the defense both to yank the odds for success over to their side of the legal fence for this second go-round.
As we reported last month, in late January the prosecution team filed a motion asking Judge Anderson to make Baca stop wearing his small, six-pointed sheriff’s star lapel pin to court, as the former sheriff had been doing for every court appearance since his legal woes began in February 2016.
Throughout his initial trial, the prosecution wrote in their motion, defendant Baca “attempted to portray himself as a law-abiding reformer” using “impermissible means”—the wearing of the star, they said, was one of those “means.”
According to the government, Baca “essentially testified” without ever taking the witness stand or “being subjected to cross examination” by coming to court wearing that little pin shaped like a smaller version of the Sheriff badge Baca wore for 15 years as head of the one of the nation’s largest law enforcement agencies. The star was “prejudicial,” the government contended.
THE “GOOD WORKS” DEFENSE
The prosecution team, made up of Assistant U.S. Attorneys Brandon Fox, Lizabeth Rhodes, and Eddie Jauregui, also wanted Judge Anderson to prevent the defense from introducing testimony about Baca’s “prior good works,” which did not directly pertain to the charges for which he was being tried.
The purpose of the defense’s so-called “prior good works” strategy, the wrote, was to convince the jury that, because the former sheriff had initiated programs like his signature Education-Based Incarceration program for the county’s jails, he was an obvious reformer who would have had no earthly reason to have criminally interfered with a federal investigation into wrongdoing in his jails, as he is charged with having done.
Early this week, Anderson sided with the prosecution and ruled that Baca will not be permitted to wear his mini-sheriff’s star, nor will the defense be able to introduce evidence of, or testimony pertaining to prior good deeds that do not connect directly to the charges against him.
At the same hearing, Anderson also said no both to the mini sheriff’s star, and to the “prior good works” gambit from the last trial, in which Baca’s attorneys, Nathan Hochman, Tinos Diamantatos and Brianna Abrams, called to the stand such witnesses as former department commander Paul Pietrantoni, to explain how Baca assigned him to teach “’wrestling moves’ to deputies in 2009 and 2010” in order to reduce force in the jails, according to Pietrantoni.
Among the other topics now nixed would be Hochman’s assertion in the earlier trial that Baca “implemented an Office of Independent Review (OIR) more than a decade before the federal investigation,” to help investigate any deputy wrongdoing. (For the record, Baca didn’t start the OIR, the LA County Board of Supervisors did, but that isn’t the point of the motion or of Anderson’s decision.)
DOUBLE JEOPARDY AND ALZHEIMER’S RULINGS
In addition, Judge Anderson has ruled on defense’s motion contending that to retry his client on counts 1 & 2—the two obstruction counts that resulted in a hung jury—constitutes double jeopardy. Although Anderson’s decision has not of this writing been made public, sources tell us that the court has ruled NO on that motion as well.
Judge Anderson is scheduled to rule on Friday about whether the defense’s expert witness on Alzheimer’s disease will be permitted to testify. (You can find the details on the Alzheimer’s expert question here.)
UPDATE ON ALZHEIMER’S
Anderson did indeed rule on Friday, although no one we spoke to seemed willing to bet on which way the judge was leaning. As it turned out, however, he ruled against allowing the testimony of UCLA psychiatrist and Alzheimer’s expert Dr. James Spar, who reportedly intended to talk about 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.
Here is what Judge Anderson wrote about the reasoning behind his ruling against Dr. Spar being permitted to testify:
“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. “Increased probability” is a meaningless phrase that applies just as easily to an increase from 0% to 1% as it does to an increase from 10% to 90%. Dr. Spar’s opinion therefore fails to satisfy the requirements of Federal Rule of Evidence 702. Even if admissible, the Court concludes that this evidence and testimony should be excluded under Federal Rule of Evidence 403 because the low probative value of the evidence is substantially outweighed by the dangers of unfair prejudice, including the sympathy the evidence might create for the defendant, confusion of issues, misleading the jury, and waste of time.”
Of course if the former sheriff decides to personally take the stand he would likely be allowed to bring the Alzheimer’s issue into court during his testimony. Yet, there are large risks for any defendant who elects to testify in his or her own behalf, so the risk/benefit ratio may weigh against Baca doing so.
No matter who wins (who cares?), this is the continuation of a “pissing contest” funded by taxpayers. The Feds are “pissed off” because they missed the target that they tried to “piss on” This whole trial only opened the door for the public to see the inner workings of an antiquated/ archaic jail system, running amok. See Jail Commission findings.
I wonder how many of the convicted Deputies waiting prison time will try to cut a deal by testifying against Baca ….
@Taxpayer, you are entitled to your opinion, but I believe you are quite misinformed. This entire investigation and subsequent prosecution against Federal Inmate Paul Tanaka and Lee Baca is NOT a pissing contest between the FBI and LASD. Far from it. At the complete orchestration of Paul Tanaka, MCJ became rogue and absolutely out of control in regards to unnecessary and unlawful force incidents. Now I was not there, but I have many friends who I trust, that were assigned to that facility at various supervisory and management ranks. They told me Tanaka placed a captain and lieutenants into that operation who specialized in the “coverup” of illegal uses of force. The culture of corruption Tanaka generated was unprecedented, the “gang mentality” he nurtured at MCJ had been exposed and was something the little man encouraged everywhere he was assigned since his day as a sergeant at Lynwood Station, as evidenced with his “Chongo Fighter” ankle tattoo. As a result of all this, MCJ became a gulag where gangs of deputies handed out beatings, broken bones and significant injuries to inmates in abundance, all for entertainment. One of the most egregious beatings and a true examination of how and why it all happened was the disgusting felony assault that took place in the MCJ Visiting area. Deputies involved came forward and testified against their peers and their disgraced and now 10 year sentenced Federal inmate. This was just the tip of the iceberg, just one of probably more than over 100 force incidents the FBI were looking at. By this time, the FBI were deep into an in-depth Federal investigation of LASD and Custody Division. Enough said.
Now we fast forward to Pandora’s Box. Paul Tanaka began shitting peach seeds when he found out an FBI cellphone was found inside MCJ. Little Paul figured out very quickly, the Feds were all over Custody Division AND he figured out very quickly, the Feds were coming after him. And I can tell you from deep inside information, Paul Tanaka had a FBI laser beam on his forehead for quite a while. So Taxpayer, I’ve laid out a very brief recap of a lengthy FBI investigation into inmate beatings inside MCJ, all at the direction of Inmate Tanaka and his bun boys. So what is your theory of a “pissing contest” based on? Let me add to this. Let’s say the FBI is investigating The Sopranos for RICO violations. And let’s say one day Tony sends Paulie Walnuts over to the lead FBI agent’s home and makes contact with agent while walking his dog. So Paulie walks up to the agent and says, “You know, you don’t look so good. You ought to be careful what your doing, you might end up in an accident, you know what I mean? Maybe you should call Tony, before it’s too late, maybe work something out.” This is NO different then what Paul Tanaka and Lee Baca did to the female agent at her home. And the contact by ICIB was all video taped, so there is no questions about who did what. Those heading to prison earned that bus ride. And Lee Baca can play victim all he wants, he was up to his neck in this shit.
So NO taxpayer, there was no “pissing contest.” There was an organized attempt to Obstruct Justice by Inmate Paul Tanaka with the knowledge of disgraced former sheriff, Lee Baca. Lee deserves a stint in Federal prison for ruining LASD, for giving the keys to Tanaka and the reign of terror and corruption that little punk brought to LASD. Now Taxpayer, open your eyes.
Most assuredly, not a pissing contest, as quite competently argued above.
Quite pleased the star pin comes of the lapel–complete farce he continued to wear it.
He was basically fired and if he was under-ranked would have landed at a Civil Service appeal hearing which would have ended in the termination being sustained.
Somewhat related note: Noticed business cards don’t have “core values” printed on back anymore. “Chief Disciplinarian” must figure better to practice than read them.
My eyes are open and have been. I am privy to some of the things that you mentioned. But yes, you are right on the money. Let’s just agree that with the initial warning by the Feds telling Baca to back off, it pissed him off to be told so, by a higher authority. The rest is history.
A serious question, does anyone have any information of what Tanaka is doing at his new digs in Colorado? I am assuming it is a minimum security facility, but just wondering what they have him assigned to a cell, a dorm, work crew?
Pandora’s Chronological Order
1. Pissed Off > LASD
2. Major Flexing > LASD
3. “Who’s your Daddy!” > FBI
4. “Come to Jesus” > LASD
5. Crossbar Hotel > LASD
6. “Next!” > FBI
@lonestar get a better life. You have harped on all 7 of those deputies for 3 years!!!
More than likely the SHU!!
I will say this the defense is wasting their time and Baca’s money. “Percy shows no mercy” and his ruling were written before they were asked. He will get what is coming to him even if they try him 15 times. The rules will be changed until they finally get that conviction.
This is beautifully written and all (loved the Sopranos) but the thing is the FBI didn’t prosecute any of the convicted 7 deputies for beatings. So for all I know they are still going on. Most of those crooked deputies that Baca and Tanaka trained still work there. I just wish the FEDS had done their job and stopped the beatings. Going after Baca and Tanaka needed to be done but they went about it the wrong way. This really was a witch hunt especially for one of the deputies and most of the “wicked witches of the west” still work there. This was about job promotions for the prosecution and Feds. The Feds are as crooked as any at LASD. That organization needs to have THEIR house cleaned.
I would think the Viking tattoo would scare most convicts away.
Probably pots and pans.
Judge Anderson is under tremendous pressure to get a win, especially after the mistrial. He (Percy) may be on the bench but 12 in the box make the final call. The defense has no choice but to fight back. Not only is Baca’s money being wasted but the taxpayers also. No winners.
The 12 decide by what info is fed them. They will get a conviction and it will be well deserved but the Judge decides what is heard. Judge Anderson is a prosecution teams dream. He always rules with them.
Hey Matt: Explain the mistrial (your opinion of course).
I don’t think the prosecution proved beyond reasonable doubt that he gave the orders, they put on a poor case, and the jury was awestruck (he is looked at like a celebrity). I do believe that the prosecution has polled the jurors and will eliminate the factors that helped with the mistrial. That is what they do. The only problem I have with that is put your best case on the first time. They let Percy “fix” their mistakes. That is why his ruling all went against Baca. Same thing happened to Sexton. They redacted his GJ testimony to “fix” the next trial. They are incompetent!! Not at all pulling for Baca. I believe he will get what is coming!!
IMHO, the prosecution “took a dive”. I can’t speculate as to the reason why, but the federal prosecutor initially was very lenient toward Dr. Baca. Just look at the original plea deal.
At the first trial, the prosecution failed to call any witness who could directly, from a first-hand perspective, testify that he gave the orders that resulted in Inmate Brown being caused to “disappear”, or that resulted in the intimidating visit to FBI Agent Marx’s home. Paul Tanaka, Tom Carey, Steve Leavins and Greg Thompson all could have provided such testimony, but, as far as I know, did not testify. I can understand the potential Fifth Amendment issues regarding their testimony, but those issues can easily be dealt with.
Matt is correct, the prosecution didn’t carry its burden.
Mr. Fox seems to be taking a different, and much more aggressive tone, in the second trial. That’s well overdue.