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.