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Lee Baca: A Trial Date, A New Lawyer, and a Pitch for Legal $$$

August 22nd, 2016 by Celeste Fremon


On Wednesday of this week, former Los Angeles County Sheriff Leroy Baca
and his new lead attorney, Nathan Hochman, will meet on the courtroom of U.S. District Court Judge Percy Anderson for a “status conference” with federal prosecutors to discuss when Baca’s criminal trial will begin.

While the trial was originally set to begin in September, then moved to October 4, our sources tell us that new and hopefully final date will likely be in December of this year. (But we’ll let you know for sure on Wednesday.)

Baca, who is now 74-years-old, was arraigned on August 12, also before Judge Anderson, at which time he pleaded not guilty to charges of obstruction of justice, conspiracy to obstruct justice, and lying to federal officials.

The former sheriff was indicted on the three charges after he pulled out of a plea deal with the government that had been crafted back in February, in which he’d agreed to plead guilty to one count of lying in an interview with the feds in 2013. In return for his plea, government prosecutors agreed to a sentencing range of 0 to 6 months.

In July, however, Anderson blew up the deal by rejecting the maximum six month sentence. In a sober-minded but scathing series of comments to those assembled in his courtroom, Anderson said that a six-month sentence would not “fairly account for the significant harm” caused “by this defendant” and “under-appreciates this defendant’s culpability.” The guidelines agreed upon, the judge said grimly, “fail to fairly measure the culpability of this defendant….and the nature and circumstances of criminal conduct,” and would “…trivialize the seriousness of his offenses, his lack of respect for the law and the gross abuse of the public trust….”

After Anderson’s rejection of the 0 to 6 month sentencing agreement, Baca withdrew from the plea deal altogether, rather than take a chance on what promised to be a sentence from Anderson that likely would have fallen somewhere between 2-5 years in a federal prison.

But, to withdraw from the deal meant that Baca would instead go to trial, and likely face added charges—which was exactly what happened.


THE ALZHEIMER’S ISSUE

Now, the gigantic wild card in the eventual trial will be the issue of Baca’s cognitive health. He has, as most readers are aware, been diagnosed with early stages of Alzheimer’s disease, a diagnosis that was made public in late June (although WLA broke the news the month before).

On the day of his arraignment, Baca also filed for a change in his lead attorney. Through the course of his plea deal, and the withdrawal from it, Michael Zweiback, a former Assistant U.S. Attorney, has represented Baca.

Now Nathan Hochman will represent Baca. Hochman is also a former federal prosecutor, and the former head of the Tax Division for the US Department of Justice. While both he and Zweiback have strong CVs, they are reputed to have different personal styles when it comes to representing a client in a criminal trial.

Hochman has made it very clear that Baca’s mental state will be a significant issue when Baca goes before a jury, and that the defense will explore whether there was any “cognitive impairment,” during the period of the summer and early fall of 2011, when the alleged actions occurred that are the basis of the obstruction of justice charges, and in 2013, of course, when Baca was interviewed by the feds, and allegedly lied.

During the arraignment, Judge Anderson, who was appointed to the federal bench in 2002 by George W. Bush, repeatedly asked defendant Baca if he understood the proceedings. Baca replied that his mind was “clear enough” but also added that he had a “cloudiness in my brain and I’ve had that for quite awhile.”

When the case goes to trial, the government is expected to have its own witnesses who suggest that, while the former sheriff may be eccentric, he cognition and memory were fully operative during the periods in question.

Both Baca’s present and past attorneys have strongly hinted (but not outright stated) that they will do what they can to have Judge Anderson removed from the former sheriff’s case, pleading that Anderson is biased against Baca.


THE COST OF DEFENSE & THE PITCH FOR FUNDS

Trials are, of course, very expensive, and with this in mind, the former sheriff’s wife, Carol Baca, has recently sent out fund raising emails to friends in her husband’s behalf, two versions of which WitnessLA has obtained. (The LA Times’ Joel Rubin was the first to report on the emails’ existence.)

In one of the emails, Mrs. Baca wrote in part:

“The attorney fees for this defense will be substantial, well over $1 million, in addition to the large amount of money we have already spent on Lee’s legal fees. As a result, we are reaching out to our family and friends to help Lee beat these charges. Lee is in the fight for his life given his Alzheimer’s disease, and he hopes he can count on you to help him have the resources for this fight.

“There are two ways to contribute to help Lee. Any person can donate as a gift to Lee a maximum amount of $14,000 a year tax-free. In addition, we are setting up a legal defense fund that can accept contributions without limit (more details to follow).”

On the subject of legal bills, except for Paul Tanaka, nearly all of the other 21 Los Angeles Sheriff’s Department members who have been convicted by the government in the course of the multi-year federal investigation into corruption and brutality inside the LASD, have been provided attorneys by either the Association for Los Angeles Deputy Sheriffs (ALADS), or the Professional Peace Officers Association (PPOA).

(James Sexton was the exception among the deputies who faced federal charges, as ALADS declined to pay even a portion of his bills, for reasons that make up their own disheartening tale.)

So, would Baca be eligible for any help?

We asked PPOA president, Brian Moriguchi, what he thought about whether either union could or would pay any of Baca’s bills, and he told us that “any full-member of our association in good standing is entitled to representation or financial support, regardless of whether their rank is a deputy sheriff or the sheriff himself.”

PPOA, he said, has provided financial assistance “to all of our members who were indicted related to this matter.”

Since we called Moriguchi on Sunday, he could not easily check whether or not Baca was, in fact, a full member. But if he is, Moriguchi said, “he is entitled to the same member benefits we afford all of our members, including financial assistance.”

Paul Tanaka, he said, “did not received any financial support from PPOA because he was not a member of our association.”

For the record, Mr. Baca receives roughly $328,000 annually in pension and benefits. In 2013, his total salary plus benefits was $490,727, according to Transparent California.

In 2013, Mr. Tanaka made $598,026. He also received salary and benefits as the Mayor of Gardena, which last year was $30,938.

Posted in LASD, Sheriff Lee Baca | 14 Comments »

Now That a Grand Jury Has Indicted Former Sheriff Lee Baca, Can His Trial Move Us Closer to Lasting Reform?

August 7th, 2016 by Celeste Fremon

THE INDICTMENT ARRIVES

On Friday, former Sheriff Lee Baca was indicted by a federal grand jury for obstruction of justice and conspiracy to obstruct justice. These two new charges are on top of the original charge of lying to federal officials that Baca admitted to back in February, as part of a plea deal hammered out with federal prosecutors.

The new charges were not exactly a surprise.

The grand jury indictment came about after U.S. District Court Judge Percy Anderson rejected Baca’s plea deal at a sentencing hearing in July, telling those in the courtroom that the 0 to 6 month sentencing range that the deal required “would trivialize the seriousness of [Baca's] offenses, his lack of respect for the law and the gross abuse of the public trust…..”

A six-month sentence, Anderson said, does not “fairly account for the significant harm” caused “by this defendant” and “under-appreciates this defendant’s culpability.” The guidelines agreed upon, the judge continued, “fail to fairly measure the culpability of this defendant….and the nature and circumstances of criminal conduct.”

Once Anderson dynamited the plea deal on July 19, at the next sentencing hearing on August 1, Baca and his attorneys had three possible ways to move forward:

Number 1: Baca could continue to plead guilty to the single charge with the understanding that the judge was going to hand down whatever sentence he saw fit, which could be as much as five years.

Number 2: Baca and his attorneys could work with the prosecutors to come up with a new deal that might please Anderson, which turned out to be nearly impossible.

Number 3: Baca could withdraw from the plea deal altogether, meaning that the only option left was to go to trial. This last option all but guaranteed additional charges, since the government had maintained in the negotiations for the plea that it could hit the sheriff with more counts, hence the motivation to plead to the single charge of lying to the feds.

On August 1, Baca went with Door Number 3, the go-to-trial option.

If Baca is convicted on the two obstruction counts, plus original count of lying to the feds, he could face as much as 20 years in a federal prison.

But that kind of lengthy a term is considered unlikely, especially since Baca’s second in command, Paul Tanaka, received a sentenced of five years—although he was, in the eyes of many, the person responsible for the day-to-day control of the operation that has thus far resulted in seven obstruction of justice convictions, on top of his own, with the sentencing of a ninth, former LASD Captain Tom Carey—who took a plea deal—still to come.

Yet, however one spins things, when it comes to the actions that have resulted in a string of convictions of LA Sheriff’s Department members in the last two years, some for obstruction of justice, others for corruption and brutality, all of that criminal misconduct—and far more, frankly—was allowed to occur on Lee Baca’s watch, which seemed to be much of Judge Anderson’s point.


DIMINISHED CAPACITY?

The former sheriff’s defense is expected to make Baca’s diagnosis of Alzheimer’s disease a significant issue in the trial. His attorneys, Michael Zweiback and a new member of the team, Nathan Hochman, have already suggested that, in the summer of 2011—the period when the actions took place that make up the heart of the obstruction charges—the former sheriff “delegated more than he should have,” due to his condition. In other words, some kind of claim of diminished capacity may be in the offing.

On the government’s side, Assistant U.S. Attorneys Brandon Fox, Lizabeth Rhodes and Eddie Jauregui, wrote that Baca was “well aware of the accusations of rampant abuse,” in the jails, particularly in Men’s Central Jail and Twin Towers Correctional Facility. There were the ever-worsening ACLU reports. Then there were things like the “allegations about LASD deputies who worked on the 300 floor of MCJ” and called themselves “the 3000 boys,” who “exhibited gang-like and violent behavior, who “used excessive force on inmates, “and “falsified reports to cover up wrongdoing.”

In the indictment, the prosecutors also hinted that they have witnesses waiting in the wings who will testify that they told Baca about brutality in the jails, and that he still made no effort to curb the problem.

As for the actual obstruction charges, the 15-page indictment of Baca is not as long or detailed as the 20 pages written by federal prosecutors in their final indictment of Paul Tanaka. For example, there are no dramatic moments when a witness describes the defendant shouting “Fuck the FBI!” as was the case in Tanaka’s indictment.

Yet, there is the mention of Baca approving an expensive bunch of overtime so that a rotating team of deputies could guard federal informant Anthony Brown round the clock, after he’d had his name changed and was moved to an out-of-the-way sheriff’s station in San Dimas, allegedly in order to allegedly keep him away from his FBI handlers. There are accounts of a meeting where Baca was reportedly present for discussions of approaching FBI agent Leah Marx and threatening her in order to obtain information. And there is the letter from Baca to then US Attorney Andre Birotte, threatening to “end the LASD’s participation in federal task forces” if Birotte didn’t yank his support for the FBI’s investigation of the jails—and so on.


A “VASTLY DIFFERENT” TRIAL

According to Baca’s attorneys, however, when it comes to the obstruction charges, the feds have themselves admitted that their case against the former sheriff is not particularly strong.

They point to passages in the prosecution’s sentencing memo, which was designed to persuade Judge Anderson that a six-month sentence for Baca was appropriate:

Indeed, there are lines in the memo such as the following: “Baca’s involvement in the obstruction is not as clear as the others,” and “may be more limited…” and “During the obstructive conduct, records show Baca was rarely in contact with any of those involved in the obstruction, with the exception of Tanaka. Tanaka himself was routinely in contact with the others.”

On the other hand, when the plea deal was first announced back in February, the government indicated that, if Baca changed his mind and the deal fell apart, they were willing and able to go to trial.

According to the feds, they laid the going-to-trial-with-additional-charges gun on the table when bargaining with Baca’s attorneys to achieve the plea. And they were fully prepared to fire that metaphorical pistol, if it became necessary.

Meanwhile, the former sheriff’s attorneys continue to express confidence.

In a text to WitnessLA, Hochman said that the new obstruction charges “represent punishment” by the feds for their client’s decision to go to trial. He also reiterated the defense’s point that the prosecutors had “admitted in court the weakness of its obstruction case” against Baca.

“This trial will be vastly different than the others,” Hochman wrote.

Well, one thing is certain: the upcoming trial of the man who led the Los Angeles Sheriff’s Department for fifteen years presents an opportunity like no other to shine a light on what went so catastrophically wrong in the LASD, and what still needs to be done to fix it.

The trial of Lee Baca is, at present, scheduled for September of this year.

Here’s the text of the Baca indictment



THE NEXT CHAPTER IN THE BACA SAGA & THE NEED FOR REFORM

Rhetoric aside, whether Baca or the federal prosecutors do or do not actually want to go to trial, it has come to pass that, barring something wildly unforeseen, the former sheriff will in fact be on trial after all—even though for several years, the likelihood of such an event occurring appeared all but impossible.

Now the trial of Lee Baca suddenly feels weirdly fated.

Given the disturbing display of departmental arrogance and wrongdoing that the previous LASD trials have have illuminated, it seems fitting that the guy at the top should also get his chance to face a jury—whatever the outcome.

After all, the whole obstruction of justice mess came about because the feds were covertly investigating accounts of brutal and corrupt behavior by deputies toward jail inmates (and, it seems, their visitors) that department higher-ups had aggressively refused to address, no matter how many awful reports of abuse were brought to their attention.

Unfortunately, based on our own investigations over the last six years, along with those of the LA Times, ABC7, the Citizens Commission on Jail Violence, and others, the problems forced into public view by a raft of federal indictments are indicative of a larger toxicity that was allowed to spread unchecked in the department, both in the jails and elsewhere in the LASD.

Yet, despite what has been brought to light by two years of federal trials, and the many positive steps taken by Sheriff Jim McDonnell, the path to lasting reform still seems to be littered with obstacles.

It was heartening to note that, in Sunday’s Los Angeles Times, the editorial board wrote about the fact that, while it’s a good thing that Baca will be on trial, the need for departmental reform is bigger, wider, deeper than the various prosecutions can reasonably accomplish.

Here are some clips from their essay:

Consider, for example, McDonnell’s continuing attempts to weed out of the department those deputies who have shown themselves to be unsuited to carry weapons and to wear the badge and the tan and green uniform.

Under the Los Angeles County system, fired deputies can be, and indeed have been, reinstated by a civil service commission that has no expertise in law enforcement or public safety and that makes its decisions based in part on the precedent set by previous sheriffs and commissions. So as McDonnell is attempting to raise standards of performance, the commission is judging deputies based on previous, lower standards. McDonnell then is compelled to take back — and to keep paying — deputies he and his command staff have deemed unfit for their jobs, completely undermining his power to set high standards of performance. It is an untenable system that has nevertheless become the envy of law enforcement officers in other agencies who would like to enjoy similar leniency…..

….The county Board of Supervisors voted this year to establish an oversight commission to keep tabs on sheriff reforms, but the panel has yet to be appointed or to convene. The board agreed to consider asking voters to grant that commission subpoena power, but with deadlines approaching to put measures on the Nov. 8 ballot, there has been no move forward on that issue….

….Switching out the man at the top was a solid step but it will not be enough to correct the Sheriff’s Department, and Los Angeles cannot rely on criminal prosecution of sheriffs, command staff and deputies as a substitute for oversight. Baca’s failed plea deal and his looming trial may be among the more compelling chapters in the story of the Sheriff’s Department, but the most important pages are those that lay out how we make sure that a similar meltdown does not occur again — and those pages haven’t yet been written.

Posted in LASD, Sheriff Lee Baca | 42 Comments »

After Sentencing Negotiations Fall Apart, Baca Says He Wants to Go to Trial to Set the Record Straight

August 2nd, 2016 by Celeste Fremon


THE DEAL CRUMBLES

Former Los Angeles County Sheriff Lee Baca returned to the court of U.S. District Court Judge Percy Anderson at 8:30 a.m. on Monday, August 1, where his attorneys made one last ditch effort to save the plea deal that Baca agreed to in February, and that Judge Anderson dynamited two weeks before at the former sheriff’s first sentencing hearing, instead of sentencing Baca to six months in federal prison, and thus concluding his case.

Now at just after 1:30 p.m. after five hours of sidebars, out-of-court negotiations, and several lengthy recesses, Attorney Michael Zweiback, stood up, walked to the attorneys’ podium to address the court, Baca beside him, and announced the decision that had likely been in the cards since everyone assembled in the courtroom five hours earlier.

“Your honor,” Zweiback said “….unfortunately we have failed to reach any kind of resolution that could be acceptable to the court,” despite the fact that both parties “tried diligently.”

Therefore, “we request that our plea be withdrawn, and we be allowed to proceed to trial.”

Anderson asked Baca if he was in agreement. “Yes, your honor,” Baca replied. He appeared ready for this outcome.

The judge, who has a reputation for liking to move is calendar along at a brisk clip, announced that he was going to set a date for trial.

Voire dire—jury selection—would begin September 20, 2016, at 8:30 a.m., Anderson said, with the last pre-trial hearing scheduled for September 12, at 3 p.m. (Obviously Anderson planned ahead for this eventuality.)

Zweiback said he almost certainly intended to petition for more time, since the prosecution had given them “a terabyte worth of data…”

Assistant U.S. Attorney Brandon Fox countered saying that, the giant pile of data notwithstanding, this would be a fairly “straightforward” case, with multiple previous trials that have already laid out the issues.


THE CIRCUITOUS ROUTE TO TRIAL

Monday’s sentencing hearing came about because, two weeks ago, at the first sentencing hearing, on Monday July 18, Percy Anderson surprised court watchers by firmly rejecting Baca’s plea deal, which specified that when Anderson selected a sentence for Baca, he remain within the constraints of a 0 to 6 month term in federal prison.

Instead, Anderson informed the former sheriff, along with attorneys for the prosecution and the defense, that a six-month maximum sentence “would trivialize the seriousness of [Baca's] offenses, his lack of respect for the law and the gross abuse of the public trust….”

Anderson’s rejection of the plea deal meant Baca had the choice of accepting whatever sentence Anderson decided to impose, which could go as high as five years, or working with the prosecution to come up with a new deal that both parties could live with, and that Anderson hopefully might accept.

Option three was that Baca and company could withdraw altogether from the plea deal, meaning that the former sheriff would take his chances in a full-scale, high profile trial. Of course, if Baca decided to go to trial, it was virtually guaranteed that the government would add some new charges on top of the single count of lying to federal officials, which had consituted the plea.

The new charges would almost certainly be obstruction of justice, and conspiracy to obstruct justice.

Eight department members had already been convicted of those two charges, all with Anderson presiding at their trials, including the former under sheriff, Paul Tanaka, whom Anderson sentenced to five years in a federal prison.

(For more on the back story on the plea deal, and Anderson’s rejection of it, go here and here.)


“HISTORIC MOMENT”

After court adjourned on Monday afternoon, Lee Baca and his legal team, met with reporters on the steps of the federal courthouse, where the former sheriff addressed everyone briefly, and then read from a prepared statement.

“I want to first of all thank the thousands of people who I’ve come across since I retired,” Baca told those assembled, “people who have come to me on their own initiative to say how much I have done, and how much the sheriff’s department has done to make their communities safer,”

“Go to trial and die in jail!” hissed a heckler who suddenly turned up in the photo-journo mob, but who was quickly yanked out of the way,

“This is a very historic moment in my life, obviously,” Baca continued. Then he announced that he would read his statement, after which he would take no questions.

Baca’s prepared statement was as follows:

For the peace of my family, to avoid a lengthy and expensive trial, and to minimize the court drama associated with this case, several months ago I entered a guilty plea to the one charged filed against me.

“Be very clear—one charge!” Baca said with emphasis, breaking for a moment from the prepared script.

“I am withdrawing my guilty plea today and will seek a trial. I have made this decision due to the untruthful comments about my actions made by the Court, and the U.S. Attorney’s Office, that are contradicted by the evidence in this case.

“While my future and my ability to defend myself depend on my Alzheimer’s disease I need to set the record straight about me and the Los Angeles County Sheriff’s Department on the misleading aspects of the Federal investigation..while I am capable of doing this.

“I want to thank my friends and family for encouraging me to stand up for what is right. My spirits are high and my love for all people is God’s gift to me…”

And with that, federal marshall’s escorted him to a friends vehicle that was waiting at the curb, and Baca was gone.


DIMINISHED CAPACITY?

Once Baca had been ushered away, his attorneys, Michael Zweiback, and a new addition to the team, Nathan Hochman, said that due to Baca’s “catastrophic illeness,” and the uncertainty of Judge Anderson’s sentencing intentions, they had to choice but to go to trial.

Zweiback also said their team didn’t believe the government could prove their case and, when asked if the trial wasn’t a big risk for the defense, Zweiback said that the prosecution has “the biggest risk” with its case. “They now have the burden of proof.”

Hochman when further. “I think the prosecution would like this to be an open and shut case,” he said. “But I think the prosecution is going to be a bit surprised.”

Zweiback and Hochman said that Baca’s illness will definitely come into the trial. For one thing they said, they have evidence that “the arc of the disease started” while Baca was still the sheriff.

When asked whether Baca’s health had impeded his ability to function as sheriff during the time in which the alleged obstruction occurred, Zweiback said, “Well, he was certainly delegating more responsibility in those days….”

And so the drama continues.

Posted in LASD, Sheriff Lee Baca | 19 Comments »

Baca Sentencing: Round 2 – Negotiations Fall Apart, Baca Is Going to Trial

August 1st, 2016 by Celeste Fremon

UPDATE: When Lee Baca, his defense lawyers, and the prosecution team returned from recess at 1:30 p.m., Baca’s attorneys announced to Judge Percy Anderson that they would be withdrawing from the plea deal, and felt there was no choice but to go to trial. The trial for the former sheriff is now set to begin on September 20.

Details to follow.



SEARCHING FOR AGREEMENT

When former Los Angeles County Sheriff Lee Baca returned to the court of U.S. District Court Judge Percy Anderson at 8:30 a.m. on Monday, August 1, his attorneys made one last effort to save the plea deal that Anderson dynamited two weeks before at a previous hearing. If Baca walks away from the deal, then he will assuredly be indicted by the government and proceed to trial.

The defense team’s Hail Mary was the notion of what is called a “settlement judge,” a kind of outside mediator within the federal system who can help parties save plea deals that have become stuck.

But after a cluster of sidebars with the judge and the prosecution, plus a half-hour recess, there was no resolution, and the settlement judge idea in particular was deemed a non starter. (It turned out that the prosecution has its own rules on the matter that preclude it from joining in such a strategy.)

“All sides are trying” added Zweiback. “But right now there’s a good likelihood that we’re going to trial.”

The other wild card in the mix, said the attorney, is the fact that “Mr. Baca’s disease has progressed.” (But we’ll get to all that in a minute.)

Finally, around 10 a.m., Judge Anderson agreed to one more recess asking all the players to return to court after lunch at 1:30 p.m.


JUDICIAL CONCERNS

Anderson too appeared to want a resolution, but he also reportedly reiterated in the sidebars the concerns that caused him to reject Baca’s plea deal in the first place two weeks ago. Unlike more conventional plea deals, this particular federal deal has built constraints that allow only for a sentence within the range of 0 to 6 months in federal prison. Thus the deal precluded the judge from handing down a prison term of more than six months.

Those following the Baca sentencing saga may remember that, at the previous sentencing hearing on Monday, July 18, Anderson’s tone was flinty as he informed the former sheriff, along with attorneys for the prosecution and the defense, that a six-month sentence “would trivialize the seriousness of [Baca's] offenses, his lack of respect for the law and the gross abuse of the public trust….”

But Anderson did not say what sentence would be acceptable to him, leaving the defense and prosecution with a guessing game as they tried negotiate with each other to craft a new and mutually acceptable deal that, most crucially, Judge Anderson would also accept.

Were it not for the constraints of the plea deal, under federal sentencing guidelines Anderson could sentence the former sheriff to as much as 5 years in a federal prison. Thus if the defense knew for sure that Anderson was leaning toward, say somewhere between one year and 18 months, rather than between three and five years, perhaps he and his attorneys would keep the deal in place and go ahead with sentencing, rather than taking a chance on a trial. Yet, if Anderson believed only the upper ranges were appropriate, then the trial option becomes more attractive.

On Monday, August 1, however, the judge explained that he felt he couldn’t legally tip his hand and let the defense know what kind of sentence he felt was fair, because it would be deemed an interference in the plea-making process according to Rule 11, of the Federal Rules of Criminal Procedure.


GO TO TRIAL, GET MORE CHARGES

To remind you how everyone arrived at this quandary, here—again—is the backstory: In February of this year, the former sheriff pleaded guilty to one count of lying to federal officials having to do with an FBI investigation into corruption and brutality by deputies inside the sheriff’s department-run LA County jail system—an investigation that, according to the government, Baca, his former undersheriff, Paul Tanaka, and others attempted to thwart.

Specifically, Baca admitted that he lied to the FBI and members of the U.S. Attorney’s Office during a round of questioning on April 12, 2013. At that time, among other denials by Baca, the former sheriff falsely claimed ignorance of the fact that, in 2011, two LASD sergeants were going to approach FBI special agent, Leah Marx, and threaten her with arrest, hoping to get information about the feds’ rapidly expanding investigation.

If all efforts fail to find a resolution to the plea deal standoff, then a trial becomes the only option. And that will mean additional charges, according to Zweiback, who said that the prosecutors had indicated that they would definitely add a charge of obstruction of justice and likely conspiracy to obstruct justice, the same two charges of which former LA County undersheriff Paul Tanaka was convicted. Anderson also presided over that trial, and sentenced Tanaka to five years in a federal prison. (Tanaka’s conviction has been appealed to the Ninth Circuit, thus he remains out of prison at this time)

Zweiback, a former assistant U.S. attorney has been with his client through the lengthy plea process.

On Monday, however, in advance of a possible trial, he was joined by a new team member, attorney Nathan Hochman, who was the Assistant Attorney General for the US Department of Justice’s Tax Division, and also served as an Assistant U.S. Attorney for the Criminal Division of the Central District of California.


BACA’S WORSENING HEALTH

As mentioned above, Monday’s negotiations have been further complicated by the fact that, according to his attorneys, Baca’s health has worsened. Specifically, Zweiback said, the former sheriff’s Alzheimer’s has progressed. “He had early stage Alzheimer’s,” the attorney told reporters. Now it has progressed to “normalized dementia”

When asked if Baca understood all that was going on in Monday’s hearing, Zweiback was firm. “He very much understands the significance of what is going on and has been intimately involved in every phase of this process.

“What my client wants is a degree of certainty.” said Zweiback. “He wants this very much to be over. He wants it to be over for his family. And he wants it to be over for the members of the Los Angeles County Sheriff’s Department, especially—and for himself, to be able to move on.’

But to agree to a situation “where he has no idea what he’s walking into, said Zweiback, “he has no alternative but to fight for his life and go to trial.

Thus far, however, the certainty all parties appear to seek has been elusive.

Posted in LASD | 30 Comments »

No New Plea Deal Reached, Baca Almost Certain to Be Indicted and Go to Trial

July 30th, 2016 by Celeste Fremon


After two weeks of negotiation, reportedly no new plea deal has been reached between attorneys
for former sheriff Lee Baca, and government prosecutors.

This means, according to sources, that barring some legal miracle, in the near future the four-term former leader of the nation’s third largest law enforcement agency will face an indictment for charges that go beyond the one count of lying to federal officials that was the basis of Baca’s original plea deal.

Specifically, if indeed Baca’s plea deal vanishes,—as is expected to happen on Monday morning, August 1, in the courtroom of Federal district Court Judge Percy Anderson—the government is expected to indict Baca soon for obstruction of justice, and conspiracy to obstruct justice, along with the single count of lying to the feds, that was the basis for Baca’s original deal.

Then some time next year or so, Baca will go to trial.

For those coming late to this drama: in February of this year, the former sheriff pleaded guilty to one count of lying to federal officials having to do with an FBI investigation into corruption and brutality by deputies inside the sheriff’s department-run LA County jail system—an investigation that, according to the government, Baca, his former undersheriff, Paul Tanaka, and others attempted to thwart.

Specifically, Baca admitted that he lied to the FBI and members of the U.S. Attorney’s Office during a round of questioning on April 12, 2013. At that time, among other denials by Baca, the former sheriff falsely claimed ignorance of the fact that, in 2011, two LASD sergeants were going to approach FBI special agent, Leah Marx, and threaten her with arrest, hoping to get information about the feds’ rapidly expanding investigation.

Once Baca pleaded guilty to the single felony count in February, all that remained was for the former sheriff to be sentenced by Judge Anderson, which was supposed to occur just under two weeks ago, on July 18th. There were, however two wild cards that affected the sentencing end of the deal.

One wild card was Baca’s newly disclosed diagnosis of early stage Alzheimer’s disease (a story that WLA broke in late May).

The other wild card was the fact that the plea deal agreed to by Baca was a special kind of legal arrangement in which the sentencing range was agreed to upfront, rather than leaving it to the whim of a judge, post deal. In Baca’s case, the sentencing range approved by both the defense and the prosecution was 0 to 6 months in a federal prison.

The prosecutors pushed for the upper end, meaning a six-month sentence.

At the same time, the defense tried to persuade Judge anderson that no prison time and probation only was the way to go given Baca’s past accomplishments, and his present declining health.

But Judge Anderson chose door number three and elected not to accept either the prosecutors’ suggestion or that of the defense. Instead a grim-faced Anderson said he was rejecting the plea deal altogether, and giving Baca a chance to withdraw his plea, and go back, legally speaking, to square one.

A six-month sentence for Lee Baca, said Anderson, “would trivialize the seriousness of his offenses, his lack of respect for the law and the gross abuse of the public trust….”

Anderson gave Baca and his team of attorneys, led by former Assistant U.S. Attorney Michael Zweiback, until Monday, August 1, to decide what the once-powerful former sheriff wanted to do now that the judge had dynamited the plea deal.

His options were as follows: He could elect to accept whatever sentence the judge decided to impose, which could be as high as five years. Or, together with the prosecutors—Assistant U.S. Attorneys Brandon Fox, Lizabeth Rhodes and Eddie Jauregui—Baca and company could present a mutually-agreed-upon alternate deal that might be more to the judge’s liking.

Or Baca could simply withdraw his original plea, thus almost certainly triggering an indictment and a lengthy federal trial sometime next year.

It appears—barring the aforementioned miracle—everyone, however reluctantly, is about to go for option three.

More soon.


PHOTO NOTE: The above photo of the former sheriff was taken at the swearing in of Sheriff Jim McDonnell.

Posted in Sheriff Lee Baca | 14 Comments »

LA County Pays $10.1 Million Because an LA Deputy Allegedly Influenced Witness Causing a 16-Year-Old to Go to Prison for 20 Years

July 25th, 2016 by Celeste Fremon


On Tuesday, July 20, the LA County Board of Supervisors voted to award a civil rights settlement of $10.1 million
to Francisco Carrillo for 20 years of wrongful imprisonment. That’s $500,000 for every year of his life he spent behind bars.

It is the largest per anum settlement for wrongful imprisonment in California history.

Franky Carrillo was a sixteen-year-old high school student when he was arrested for the 1991 drive-by murder of Donald Sarpy. In 1992, after two trials, the first with a hung jury, Carrillo was convicted of the murder, along with multiple counts of attempted murder, for which he was given a life sentence, plus a second sentence of 30-to-life. The two sentences were to run consecutively, reducing the chance of Carrillo ever getting paroled to zero.

Throughout two criminal trials (the first produced a hung jury) and his 20 years in custody, Mr. Carrillo insisted on his innocence and wrote everyone he could think of try to get someone to help with his case. When at first that failed, he filed his own habeas petition. He also refused any plea bargain that involved an “explicit or implicit admission of guilt.”

But fifteen years into his sentence, an attorney responded to his letters and decided to look into Carrillo’s case.

On July 26, 2011, after a weeklong evidentiary hearing, Los Angeles Superior Court Judge Paul Bacigalupo granted Carrillo’s habeas corpus request and vacated Carrillo’s sentence. The LA District attorney’s office neither appealed the ruling, nor attempted to re-file charges.

And so it was that Franky Carrillo was released from custody on March 16, 2011, after having been locked up continuously since January 24, 1991, over 20 years.

How the jury came to convict the teenager with no previous criminal record is complicated, but according to Carrillo’s attorney, civil rights lawyer Ron Kaye, much of it reportedly hinged on the actions of a Los Angeles County Deputy Sheriff named Craig Ditsch, now retired, an admitted member of the Lynwood “Vikings,” and a close supporter—according to Ditsch —of former LASD undersheriff Paul Tanaka, who described his mentor’s controversial use of the term “gray area” as proactive policing.

“This settlement should send a loud and clear message to law enforcement throughout LA County that such manipulation of the evidence will not ever be tolerated,” said Kaye. “Franky Carrillo will never regain those years of his life – the birthdays, the weddings, the graduations and the funerals of loved ones that he missed, things we all take for granted – but at least this settlement holds those responsible accountable.”


THE SHOOTING

At approximately 7 p.m. on Friday, January 18, 1991, six African American teenagers, ages 15 to 18, were clustered near to the curb at the front of a house in the 4000 block of Lugo Avenue in Lynwood, California, when one of the boys’ dads, Donald Sarpy, walked toward the kids from his nearby house, intending to talk to his sone and the others. As Mr. Sarpy walked, a car approached and drove slowly past the group. Then, when the car had travelled a few houses away, the front seat passenger leaned out of the car’s right front window, his arm outstretched as he turned back toward the group, a in his hand. He fired several times. One of the bullets hit Donald Sarpy, who died several hours later at the hospital.

At the time when Frank Sarpy was murdered, Franky Carrillo was a tenth grader attending Schurr high school in Montebello, and living with his father and siblings in Maywood, California.

Before the move to Maywood a year before, Carrillo’s family lived in Lynwood, which had become increasingly gang-ridden. By the time Franky Carrillo hit middle school, he was at fringes of one of Lynwood’s main gangs called the Young Crowd. Carrillo wasn’t a member. He was never jumped into the gang. He had no tattoos—gang related and otherwise, and he had never been convicted of even the most minor criminal conduct. But he was friends with some of the actual gang members whom he’d known since elementary school. Due to those friendships, and where he lived, he was viewed as affiliated with the Young Crowd, by some. At one point, he was assaulted and stabbed by so-called enemy gang members. Another time, according to Carrillo, when he and a friend were riding their bikes, a sheriff’s deputy asked to photograph each of the boys. Carrillo’s image would later be put in a book containing photos of possible Young Crowd gang members.

These and other incidents led Carrillo’s dad to decide that he needed to get his kids away from Lynwood and its gang dangers, so moved to nearby Maywood. After the move, Franky went to school without fear of being jumped. “It was a brand new life, life,” he said.

But, then, back in Lynwood, Donald Sarpy was killed.


WITNESSES

When the first LA County sheriff’s deputies showed up at the scene minutes after the shooting, all but two of the six victim witnesses were gone. The two remaining witnesses, one of them Sarpy’s son, were interviewed at the site of the shooting. The other four were identified and interviewed by phone shortly afterwards. 


According to the initial police report, when the teenage witnesses first spoke to police, none of the six could give a useful description of the shooter past the fact that the person was a young Hispanic male. But four of the witnesses reported hearing one of the kids in the drive-by car yell something as shots were fired, like “Fuck N-Hood,” and possibly also, “Young Crowd Locos.” The purported shouted messages made sense because, at the time, there was a lethal rivalry between the two gangs. Yet, although the kids were “upset” and appeared to be trying hard to be helpful, according to the subsequent police report, other than those few details, the boys could produce little else. It had been dead dark at the time of the shooting, and the shooter was several houses away.

Hours later still, after 1 a.m., five of the adolescent witnesses were taken to the LA County Sheriff’s Lynwood sub-station where they were interviewed for a second time. (The sixth witness was, for some reason, was not re-interviewed until months later.) When the first four ended their interviews, they had produced no better picture of the suspect than they had earlier in the evening with the patrol deputies.

The last of the five, however, a 16-year-old named Scott Turner, was interviewed around 2:15 a.m. by LA sheriff’s deputy Craig Ditsch, who was a member of Lynwood’s Operation Safe Streets unit, or OSS— the gang enforcement unit. Ditsch reportedly knew Turner from previous gang-related cases and various street contacts in the Lynwood area.

Turner’s interview was also different from that of the other eyewitnesses in that he was the only person shown photographs at the Lynwood sheriff’s station that night.

At first Ditch showed Turner a “gang book” filled with photos of teenagers and young men who police believed were members of Young Crowd, or might have some affiliation. Turner would tell Carrillo’s defense attorneys years later that, at Ditsch’s urging, he picked several photos of people who might look like the shooter—even though, along with the others, he’d said earlier that he couldn’t really see the shooter. According to Turner, after he picked each of the photos, Deputy Ditsch told him he was incorrect, that this or that selection could not be the gunman. Finally, Turner put his finger on Francisco Carrillo’s photo. This time, according to Turner, Ditsch’s reaction was different. The OSS deputy told Turnerthat his choice was the right one.

“After guiding Mr. Turner to select Mr. Carrillo’s photograph,” attorney Kaye wrote a civil court document, 
 “…Ditsch presented a six-pack to Mr. Turner with Mr. Carrillo’s photograph in position number one. Having already been led by Defendant Ditsch to select Mr. Carrillo’s photograph from the hundreds of photographs in the gang book, Mr. Turner picked up the cue, and selected Mr. Carrillo’s photograph in the number one position as 
the perpetrator of the Sarpy murder.” 


According to Carrillo’s civil complaint, the six-pack that featured his photo was pre-existing in that it had been assembled for an an earlier case in which a witness testified at preliminary hearing that another Lynwood OSS deputy named Loy Luna urged her to pick Carrillo as the perpetrator, that he was a member of the Young Crowd. On the stand, the witness told the judge that she could not, in fact, ID Carrillo.

In his subsequent police report, Deputy Ditsch stated that Turner had independently chosen the photo of Carillo.

As for Turner himself, when he saw his friends again, he told them about Ditsch and that he’d picked out the right photo and the shooter was Carrillo. The remaining five witnesses were not shown the six-pack until months later, shortly before the trial. By then, they too were convinced they’d seen the shooter and that he was Franky Carrillo..


CONVICTION

Franky Carrillo was tried for the crime twice. The first trial ended with a “hopelessly deadlocked” jury. Before trial number two began, Scott Turner told prosecutors that his identification of Carrillo had been “a mistake” and that he could no longer testify against him.

According to Turner, when Ditsch heard that Turner was recanting, he cornered the teenager outside the courtroom, and threatened him, telling Turner there would be “negative consequences….once Mr. Turner was on the street,” if he took back his identification of Carrillo.

When Turner got on the stand, he ignored Ditsch and told the jury that he couldn’t ID the shooter. Two decades later, he told attorneys helping Carrillo that he was fearful of retaliation from Deputy Ditsch and other members of the Lynwood Sheriff’s sub-station, so did not tell the jury that Ditsch had told him that Mr. Carrillo was the shooter.

Although Turner recanted in the second trial, the other five witness stuck with their story that Franky Carrillo shot Donald Sarpy. The jury found Carrillo guilty of murder and six counts of attempted murder.


RELEASE

While in Folsom Prison, Carrillo did what he could to make his time inside count for something. He was part of The Blind Project- an organization which transcribed regular print into Braille for people without sight, worked in the Optical Department where he would refurbish used eye glasses that were then provided to those need, worked in the prison’s Youth Diversion Program.

And he wrote many, many letters—to the Los Angeles County District Attorney’s Office, to the California Office of the Inspector General, Innocence Projects in both California and New York, the Mexican American Legal Defense Fund, the ACLU of Southern California, the National Association of Criminal Defense Lawyers and a list of private attorneys. After fifteen years, the writing paid off. An assistant state public defender named Ellen Eggers agreed to look at his case. For the next five years, on evenings, weekends, and days off Eggers, and attorneys she recruited to help, pulled apart the case and tracked down the various eyewitnesses, who were now in their 30s.

At the subsequent Habeas hearing, five out of the six—including Donald Sarpy’s son—recanted their original testimony in front of Judge Bacigalupo. The sixth invoked his Fifth Amendment right against self-incrimination.

Scott Turner apologized to Carrillo from the stand, according to Scott Wood, a Loyola Law School professor with a specialty in restorative justice, who was one of the lawyers who signed on to help Eggers with Carrillo’s case and wrote about how the experience affected him. “I never got a chance to apologize to Frank or apologize to his family..… It’s not right.,” Turner said. “So I’m standing up … [to] I say I was wrong. And, you know, I’m sorry, Frank. I apologize.”

Carrillo replied right away. “I forgive you. I forgive you, Scott.”


POST SCRIPT

After his release from prison Franky Carrillo enrolled at Loyola Marymount University and graduated this June his Bachelor of Arts degree. “I needed to take hold of my future and follow my heart,” he wrote in an essay for LMU Magazine last summer when he was headed into his senior year. At Loyola, Carrillo fell in love with a woman, and last year the couple had a baby. Since graduation, the once-incarcerated man has been active criminal justice reform work. Most recently, he has been among those leading the charge to abolish the death penalty in the state of California through the passage of Prop 62.

As for Craig Ditsch, while Carillo was serving time at Folsom, he remained with the Los Angeles Sheriff’s Department until his retirement at the rank of lieutenant. He and other deputies maintain that Ditsch did not in any way improperly influence Scott Turner.

Ditsch—-and Loy Luna, who was also named in Carrillo’s civil lawsuit—were named multiple times in the huge and influential class action lawsuit of 1990, Thomas, et al v. the County of Los Angeles, about which both a U.S. District Court Judge, and the 9th Circuit Court of appeals wrote as a finding of fact:

“The actions of many deputies working in the Lynwood sub-station are motivated by racial hostility; these deputies regularly disregard the civil rights of individuals they have sworn to protect. Many of the incidents which brought about this motion involved a group of Lynwood area deputies who are members of a neo-Nazi, white supremacist gang—the Vikings—which exists with the knowledge of departmental policy makers.

Last Tuesday, in the letter to the LA County Board of directors recommending a settlement of the Carrillo case, Jonathan McCaverty of County Counsel wrote, “due to the risks and uncertainties of litigation, a reasonable settlement at this time will avoid further litigation costs, therefore a full and final settlement in the amount of $10,100,000 is recommended.

In a “Corrective Action Plan” attached to the settlement, the county asked for remedial changes in department policy, essentially to attempt to make sure this kind of thing doesn’t happen again.

Thus on March 21, 2016 the Los Angeles County Sheriff’s Department’s Field Operation Support Services disseminated [a] newly written department policy related to suspect identifications, photographic arrays, and “admonishment procedures.”

The report also states that, “…due to the fact that both involved deputy sheriffs are no longer employees of the Department (for unrelated reasons), the incident was not investigated by representatives of the Los Angeles County Sheriffs DepartrnenPs Internal Affairs Bureau.”

Carrillo’s attorney, Ron Kaye sums up the matter of retired LASD lieutenant Craig Ditsch very differently: “This deputy stole my client’s youth by coercing a 15-year-old witness to pick Franky out a line-up, even though he admitted he could never identify the shooter of the drive-by on the night of the crime.”

Posted in Innocence | 18 Comments »

Former LASD Commander Discusses Baca Leadership….Treating Locked-Up Kids Like Adults…LAPD Chief and the Game Anti-Violence Campaign….Reseda Church Holds Police-Community Town Hall

July 22nd, 2016 by Taylor Walker

FOLLOWING FED JUDGE’S REJECTION OF BACA’S PLEA DEAL, FORMER LASD COMMANDER IN CHARGE OF MEN’S CENTRAL JAIL DISCUSSES BACA’S FAILURE TO MANAGE HIS UNDERLINGS

In an interview with KTLA’s Kareen Wynter, former L.A. County Sheriff’s Department Cmdr. Ralph G. Ornelas, says former Sheriff Lee Baca did not properly supervise the actions of his number two in command, former Undersheriff Paul Tanaka.

“[Baca] didn’t do the one thing that was extremely paramount, was to manage the people below him,” said Ornelas, who was in command of Men’s Central Jail from March of 2011 until mid-2013.

At a sentencing hearing for Baca last week, U.S. District Court Judge Percy Anderson dynamited Baca’s plea deal (a sentencing range of 0-6 months in prison). Now, Baca and his lawyers can either come back with a deal Anderson is more likely to accept, or withdraw the plea and go to trial.

Paul Tanaka was sentenced to 5 years in federal prison for the dual crimes of obstruction of justice and conspiracy to obstruct justice while a federal investigation into brutality and corruption in the county jail system was taking place.

Ornelas, who testified against Tanaka, said Baca’s sentence needs to send a message. “It’s bigger than Baca,” he said.


LIZ RYAN: YOUTH DETENTION PRACTICES TOO SIMILAR TO ADULT PRISONS

A growing body of research on teenagers’ still-developing brains (notably the areas of the brain governing impulse control, critical thinking, and consideration of consequences), has led to major juvenile justice reforms at the local, state, and federal levels. Yet, the majority of juvenile lock-ups don’t reflect the fact that kids and teens are fundamentally different from adults.

Writing for Medium, youth justice advocate and CEO of No Kids in Prison, Liz Ryan, points out some of the ways that juvenile detention centers mimic adult prisons, and why the similarities—like solitary confinement, a focus on punishment, dehumanizing treatment, and rampant violence and victimization—are especially harmful to children. Of course, not every youth facility subjects kids to these injustices, but most do.

In California, it’s taken many years to improve conditions for locked up kids. In 2003, the nonprofit Prison Law Office sued the state of California over huge problems in the California Youth Authority facilities. In order to settle the case in 2005, the state agreed to “provide wards with adequate and effective care, treatment and rehabilitation services, including reducing violence and the use of force, improving medical and mental health care, reducing the use of lock-ups and providing better education programs.” It took the state more than a decade to implement the necessary reforms and end the lawsuit (like reducing use of force, overhauling education, and implementing evidence-based rehabilitation programs).

Here’s a clip:

Focus on punishment, not rehabilitation

Youth prisons were designed to serve as an alternative to adult prisons by having a more rehabilitative focus. It hasn’t turned out this way in many instances, even when the purpose of the juvenile facility is defined in a state’s statute to rehabilitate youth.

For example, in Connecticut, the Department of Children & Families (DCF) states that the mission of Connecticut’s youth prison, the Connecticut Juvenile Training School (CJTS), “is to provide a safe, secure and therapeutic environment while providing opportunity for growth and success.”

This mission statement which promotes a rehabilitative approach is not consistent with the report and videotapes released by the Office of the Child Advocate last year documenting youth being brutalized by staff. These actions appear to be more about punishment than rehabilitation.


LAPD CHIEF AND RAPPER THE GAME TEAM UP TO CALL FOR AN END TO VIOLENCE IN LOS ANGELES

In a video released Wednesday, Los Angeles Police Chief Charlie Beck and rapper the Game announced they would be partnering on a new anti-violence campaign.

The duo called for an end to bloodshed in the city. Chief Beck pointed out that of the nearly 1,000 people shot in 2015, close to 300 died, and 80% of both victims and shooters were young men of color.

“We have to stop killing one another,” the Game said.

Snoop Dogg and the Game led a peaceful march to LAPD headquarters earlier in July, and joined LAPD Chief Charlie Beck and LA Mayor Eric Garcetti for a press conference.


BRINGING COPS AND THE COMMUNITY TOGETHER TO TALK ABOUT POLICING

On Thursday night, the Reseda Church of Christ hosted a town hall for community members, city officials, police, and clergy to discuss race and policing to “facilitate healing and reconciliation” between law enforcement and communities of color.

The predominantly black congregation has lost two members to violent encounters with officers.

“For us to make progress, we’ve got to focus on the reduction of overall violence in these communities,” said LAPD Deputy Chief Bob Green, who spoke at the meeting.

LA Daily News’ Brenda Gazzar has more on the town hall. Here’s a clip:

In 1982, congregant James Mincey, 20, died after he was put in a chokehold by a Los Angeles police officer during a struggle in Lake View Terrace. The public outcry that resulted from the Pacoima man’s death prompted limitations on the use of the controversial technique by the LAPD.

On May 16, 2013, another congregant, Christian Eaddy, 25, was fatally shot during an encounter with Los Angeles police in Pacoima. His cousin had called 911, reporting that Eaddy was sticking himself with syringes and was armed with two knives. Police said Eaddy refused commands to drop the knives and continued to approach the officers before one used a stun gun on him and another shot him. Another cousin, however, said Eaddy was 3 feet away from officers when he dropped the knives and was shot, according to prosecutors who investigated the case.

Winrow said Eaddy had the mental capacity of a 10-year-old. No criminal charges were filed and the case is in civil litigation, he said.

The 63-year-old minister, who lives in Granada Hills, believes that more community policing as well as having more officers from the communities they patrol would help reduce such incidents.

“Sometimes we view people not in the same way that we view our own, and we become more likely to make mistakes of judgement,” Winrow said. “Those kinds of mistakes … can cost people their lives.”

MORE ON THE ISSUE OF POLICE-COMMUNITY RELATIONS

On KPCC’S Take Two, host Alex Cohen spoke with Jerry Hoffman, co-chair of the community police advisory board for the LAPD’s Northeast division, and Ruben Arellano, Sergeant at the Northeast division, discussed how to get involved and improve police-community relations through open dialogue and other tools. Sgt. Arellano suggests attending the community advisory board’s meetings and attending the LAPD’s community citizen’s academy—where, one night a week for 10 weeks, participants get special lessons on policing issues. Attendees learn about everything from traffic stops and chases, to how Internal Affairs works. Go take a listen.

Posted in LASD | 11 Comments »

Fed Judge Dynamites Baca Plea Deal, Says 6 Month Sentence Would “Trivialize the Seriousness” of His Offense”

July 19th, 2016 by Celeste Fremon



JUDGE PERCY ANDERSON REJECTS LEE BACA’S PLEA DEAL

When the sentencing hearing for former Los Angeles County Sheriff Leroy Baca began on Monday morning in the courtroom of U.S. District Court Judge Percy Anderson, most of those in attendance were fairly sure they knew what to expect.

The room was packed with Baca supporters who had various kinds of personal ties to the former sheriff. Most of the supporters showed up at the downtown federal courthouse on Spring Street an hour early to make sure they got a seat in the courtroom before the place filled to overflow, which it did quickly. Tommy Lasorda, the beloved former manager of the Dodgers, was one of those waiting to enter.

One supporter brought with him a plastic bag full of enamel lapel pins, each formed in the shape of a small yellow ribbon tied in bow. The man went down the line passing out the pins to the crowd. One man who said he’d known Baca since middle-school, quick fastened a pin to his suit jacket. “I guess it’s just another way of showing support,” he said.

Eventually, a trio of federal marshals allowed everyone who could fit to file into the courtroom and get seated. By that time around two thirds of those gathered wore a yellow ribbon pin, excluding the press, and the smattering of lookee-loo attorneys who had wandered down from the building’s upper floors.

In February of this year, Baca pleaded guilty to one count of lying to federal officials, having to do with his knowledge of hiding federal informant Anthony Brown, the threatening of a federal agent, and other forms of interference in a federal investigation into brutality and corruption by deputies the LA County Jail system.

It was an agreement that reportedly took much negotiation to wrestle to the ground. But, eventually the government and the defense were in accord, and Baca formally pleaded guilty to the single charge in front of Judge Anderson. Now all these months later, the deal was about to be finalized, once Anderson sentenced Baca.


THE BACK-TO-SQUARE-ONE OPTION

In most plea deals, when it comes time to sentence, the defense and the prosecution each make their pitch for the sentence they hope to sell to the court, then the judge delivers the sentence he or she deems just, and that sentence is binding.

But Baca’s agreement was a slightly different breed of federal plea bargain called an 11(c)1(C) agreement. This form of plea deal allows the government and the defense to agree upon a narrow range of possible sentences from which the judge may select. If the court doesn’t agree with the sentencing range, it may go outside the agreed upon parameter. Then the defendant must decide whether to accept the rogue sentence, or instead be allowed withdraw his or her plea, in which case everyone is back to square one. Commonly the judge stays within the agreed upon sentencing range since, in most cases, no one is all that interested in the square one option.

In Baca’s case, the agreed-upon sentencing range was 0 to 6 months —zero meaning probation only.

Thus, all that had to happen on Monday was for both defense and prosecution to make their respective pitches to the judge for their preferred sentences, and for Anderson to select the point on the 0 to 6 month continuum he believed to be the most appropriate for Baca.

But that was not what occurred.

As most of you reading this likely know by now, Anderson instead flipped the game table, took a blow torch to the sentencing spread, dynamited the plea agreement (or whatever other metaphor you prefer). He chose none of the above— which essentially rendered the carefully crafted 11(c)1(C) agreement null and void.

However, at the beginning of the morning, everyone was still blissfully ignorant of the curve ball that was coming.


A CRUEL PLACE?

When Baca entered the hallway outside Anderson’s court, stopping to greet be greeted by supporter after supporter, he seemed relatively prepared for whatever fate was going to be handed to him. (In contrast, when the former sheriff came to court back in February, he seemed on the verge of shattering.)

After some necessary legal remarks by the judge, Baca’s lead defense attorney, Michael Zweiback, got up with his client beside him, and made an eloquent case for the probation only alternative. Zweiback read excerpts from letters written by a wide variety of people whose lives Baca seemed to have touched or helped to make better, and listed Baca’s accomplishments.

Finally Zweiback laid out the Alzheimer’s issue, and why he believed his client’s condition would make a federal prison “a cruel place” for the former sheriff to be.

Unlike other sheriff’s department defendants the judge has sentenced, the defense attorney said, “my client is accepting responsibility” for what he’s done….

“We would urge this court not to incarcerate Mr. Baca. There is so much more that can be done for him and by him” if he is allowed to stay out of prison.


IT’S NOT ABOUT HIM, IT’S ABOUT JUSTICE

When it was the federal prosecutors’ turn, as they had in their sentencing briefs, the prosecution pushed for the full six months. Assistant U.S. Attorney Brandon Fox praised Baca’s positive achievements, But “this is not all about Mr. Baca,” said Fox. “It’s about justice.” And about “deterrence,” and communicating to others that “they will be held accountable.”

When Baca lied to federal officials, he did so to protect himself from an indictment, Fox said “That’s not what a leader does. That’s what a coward does.”

The former sheriff also “ignored plenty of warnings that deputies in his jails were abusing inmates,” and then became “angry” when the FBI began investigating his department,” the prosecutor said. Yet Fox also made it clear that the government thought anything greater than a six month sentence for Baca was excessive, considering his medical condition.

Furthermore Fox said, the government believed that Paul Tanaka was “far more responsible” for the wrongs that had been done in the Los Angeles Sheriff’s Department, than the former sheriff. He also pointed out that no other defendant involved in the obstruction cases has admitted to the court that they’d done anything wrong, save Baca. “They remained defiant throughout the process.”

After Fox sat down, Baca read a page long prepared statement in which he expressed regret about his actions. “I failed,” he said. “I did not lead. Instead I delegated the responsibility for this investigation. I should not have done that.


MEASURING THE HARM

Finally it was Anderson’s turn. And, as the judge began to talk, it quickly became evident that he was not happy with the sentencing choices the plea deal had given him.

A six month sentence, Anderson said, does not “fairly account for the significant harm” caused “by this defendant” and “under-appreciates this defendant’s culpability.” The guidelines agreed upon, the judge continued, “fail to fairly measure the culpability of this defendant….and the nature and circumstances of criminal conduct.”

Under Baca, said Percy Anderson, a grand jury investigation was derailed, jail deputies “were taught to how to cover up abuse by other deputies.” If an inmate disrespected a deputy, his fellow deputies were taught that they should beat the inmate badly enough “to put him in the hospital.”

While [in the agreement] the parties place no value on this harm,” Anderson said grimly, “I do.

“The behavior of the chief law enforcement officer on Los Angeles county” involves covering up abuse in the men’s central jail.

Yes, Baca has many accomplishments, Anderson said. “But those factors are greatly outweighed by other sentencing factors.”

Six months in prison, he said, “would trivialize the seriousness of his offenses, his lack of respect for the law and the gross abuse of the public trust….”

“…Thus this court rejects the plea agreement.”

And that, was that.


NOW WHAT?

Anderson informed Zweiback that Baca was not longer bound by the plea agreement, a fact of which Zweiback and his associates were already quite aware.

This meant he and his client could withdraw the plea, and the “court could impose a sentence that is “more severe than what had been agreed upon.” But Anderson declined to say how severe.

After Zweiback and Baca conferred, the defense attorney asked for a continuance.

It was agreed that everyone would return to court in two weeks, on August 1.

Outside the courtroom, Zweiback said that in seventeen years as an Assistant US Attorney, and 9 years as a criminal defense attorney he’d never had a deal rejected.

Between now and August first, Zweiback added, he will meet with the federal prosecutors and try to hammer out another deal that will work both the government and the defense—and, of course, for Judge Percy Anderson.

But, said Zweiback, “It may well be that nothing will satisfy the court except for a trial.”

Yet a trial is a risk for both the defense and the prosecution, said former Assistant U.S. Attorney Miriam Krinsky, who was also the executive director of the Citizen’s Commission for Jail Violence. “If they go to trial, that means first the government has to present its evidence to a grand jury and get an indictment. And the government may decide to indict on more charges.”

At the same time, Krinsky said, the prosecutors have indicated that their evidence on Baca is likely not as strong as it was on Tanaka and others.

So what kind of sentence would Percy Anderson like to impose? There is no way of knowing, of course. However, two different veteran attorneys guessed that a one or two year sentence. “And if you’re Baca, you take that deal,” one of the attorneys said.

Miriam Krinsky agreed “This judge is very aware,” she added, “that a lot of people got caught up due to Baca’s failure of leadership, and got much higher sentences” than he found in the now-rejected deal.


WLA’s photo of Baca and one of his attorneys was taken after his plea hearing in February 2016.

Posted in LASD | 77 Comments »

What to Expect When Lee Baca To Be Sentenced Monday Morning

July 18th, 2016 by Celeste Fremon


On Monday morning, U.S. District Court Judge Percy Anderson will announce
what sentence he believes is appropriate for former Los Angeles County Sheriff Leroy Baca.

There are a number of factors that could influence Anderson’s decision.

But, we’ll get to all that in a minute. First let’s quickly review how we got here:

In late 2015, it became fairly clear to Baca and his attorneys that the former sheriff was very likely going to be indicted for some part of his alleged participation in obstructing the FBI’s investigation into corruption and brutality by deputies in the LA County jail system. With this in mind, toward the end of last year—according to members of the U.S. Attorney’s office—Baca’s people floated the idea of a deal. However, it took until the first week of February 2016 for the final language of the plea deal to be nailed down in a flurry of negotiations.

Finally, it was agreed that Baca would plead to one count of lying to federal officials. Specifically, according to the feds, the former sheriff replied falsely to certain questions when he was interviewed in April 2013 by members of the FBI and the U.S. Attorney’s office, having to do with Baca’s knowledge of alleged attempts by LASD personnel working under him to obstruct the aforementioned federal investigation.

In return for the plea, the government would recommend a sentencing range of between zero to six months, but not to exceed six months. Additionally, Baca would agree not to contest certain other accusations, but would not plead guilty to them.

For their part, prosecutors would agree not to bring charges based on those acts that the sheriff would not contest.

And so it was that, on the morning of February 10, 2016, the deal was announced, and in the afternoon Baca pleaded guilty to that one count of lying before Judge Percy Anderson. All that remained was for Anderson to actually sentence Baca.

There was one small caveat: for the deal to remain in place, Anderson’s sentence must stay within the agreed upon 0-6.

Until the plea hearing, it was pretty much assumed that Anderson would stay within the 0-6 boundary because, should Anderson decided to give Baca a sentence greater than six months, this would effectively dynamite the deal, bringing everyone back to pre-deal conditions where the government was prepared to indict Baca and take him to trial, an outcome that nobody really wants.

But during that February hearing, while the judge didn’t say he’d exceed the 0-6 boundaries, Anderson also made it clear that he legally could go as high as five years, leading some court watchers to wonder if the judge might be toying with the notion of going at least a little higher.

Or then again, maybe not.


NO PRISON TIME, PROBATION ONLY

As one might expect, Baca’s team of attorneys, led by Michael Zwieback, has asked the court to sentence the former sheriff to probation only.

Baca “did the unthinkable,” wrote Zwieback and company in a 30 plus-page sentencing memo. But “he accepted responsibility and pleaded guilty to a crime.”

Baca is seventy-four years old, his attorneys wrote of their client. “He has early stage Alzheimer’s disease. He needs constant monitoring, prescription medications, and any treatment that may slow or stall the progression of this degenerative disease. No one contends that he is a threat to the community. He will not offend again. All conditions support a probation only sentence.”

(Lead defense attorney Zweiback is, by the way, a former assistant U.S. attorney.)

The former sheriff’s attorneys also told the judge that, if Baca was not sentenced to prison, he would be accepted into a clinical study at UCLA that might change the course of his disease, plus as a former high profile member of law enforcement, along with his medical condition, he would be a target for victimization in a federal prison.

The 36-page brief was accompanied by scores of letters from supporters that include sports personalities, religious figures, former jail inmates, at least two former California governors, and a lot of other names that you would know.

The elephant in the room, however, when it comes to Baca’s sentencing, is the fact that seven people to date working under the former sheriff, and to whom he directly, or through the chain of command, gave orders, have already been given federal prison terms by Judge Anderson ranging from 18 months to 41 months. And those sentences are arguably, at least in part, a consequence of the orders Baca allegedly gave. And then there is former undersheriff, Paul Tanaka, who received a sentence of 60 months.

Baca’s attorneys argue that those other cases and sentences don’t apply because their client is to be sentenced for the crime of making a false statement in connection with a single interview, not with obstruction, bribery or any of the other alleged Illegal acts on which the other “Related Cases” are based.


A STUDY IN CONTRASTS

The prosecution, in contrast, wants Judge Anderson to give the former sheriff a sentence of six months in a federal prison.

“Defendant Leroy Baca is a study in contrasts,” prosecutors Brandon Fox, Lizabeth Rhodes, and Eddie Jauregui wrote in their most recent sentencing brief. “He was a champion of certain reforms in the criminal justice system, yet ignored warnings that his deputies were committing serious abuses in the Los Angeles County jails” and became “angry that the federal government was investigating his department”

Baca, they wrote, issued orders that,” taken literally, may not have been corrupt,” but were carried out, without Baca’s objection, in a manner that was corrupt.

And then he “lied to the federal government.”

As for the matter of the former sheriff’s Alzheimer’s, the prosecutors contend that, while Baca “suffers from a mild cognitive impairment” it should not preclude a sentence like the six months they propose.

In a separate 10-page declaration, Dr. James Pelton, Regional Medical Director for the Western Region of the Federal Bureau of Prisons, assured the judge that “Mr. Baca’s medical condition is not unusual in the BOP.”As discussed below,” Pelton wrote, “there are hundreds of inmates who have cognitive impairment that is more severe than Mr. Baca’s condition. Additionally, contrary to the assertion of Mr. Baca…it is very likely that Mr. Baca would continue to be able to take medication prescribed to him to treat his disease while incarcerated. I make this statement as the person who would be deciding whether Mr. Baca 2 would receive this medication….”


ABOVE THE LAW

Near the end of their brief, the prosecutors pointed to an incident that they said suggested that the former sheriff still felt he had done nothing wrong, and that he was “above the law” and that he “refuses” even now “to acknowledge the problems within the Los Angeles County jails.”

The were referring to Baca’s May 29, 2016, speech and interview given when he was honored on May 29, 2016, by a Jewish organization.

At that time, Baca stated he was not afraid of jail. “I’m not afraid of
anything….” he said. “I can serve time, I don’t care what the circumstances are…I’ll stand on my record proudly, anywhere, whether it’s in the free world or in jail.”

Similarly, although it was too recent to make it into their brief, the prosecution was also reportedly very interested in a panel with which the former sheriff participated this past Friday, July 15, entitled Every Life Matters – Solving the Imbalance of Race Relations From Both Sides.


WHAT WILL ANDERSON DO?

So will Anderson go with six months, or probation only? Or will he blow up the deal?

Those reading tea leaves, point to Anderson’s harsh remarks after he sentenced Gilbert Michel (the deputy who accepted a bribe to bring in the cell phone to inmate/FBI informant Anthony Brown), and then the scorched earth lecture he gave to Paul Tanaka before he handed down the undersheriff’s sentence.

If by some chance Anderson decides to go above the 0-6 boundary on Monday, Baca and his attorneys will have a decision to make. They can roll the dice and go to trial where, in addition to the public spectacle, if Baca loses, the judge can give him up to 5 years, which is what he gave Tanaka.

Or, if the sentence isn’t too excessive, Baca could elect to cut his losses and decide to keep the deal in place.

In any case, Monday morning all speculation will end, and we will learn what sentence Judge Percy Anderson considers just.

So…stay tuned.

Posted in Uncategorized | 11 Comments »

9th Circuit Hears Appeal Arguments for 7 Former LA Sheriff’s Deputies – UPDATED

July 5th, 2016 by Celeste Fremon



On Tuesday morning, July 5, attorneys for former Los Angeles County Sheriff’s deputy James Sexton,
and six more department members who were convicted of obstruction of justice in a trial separate from Sexton’s, tried to convince the 9th Circuit Court of Appeals that their convictions should be overturned, and that U.S. District Court Judge Percy Anderson should be replaced in any future proceedings, should Sexton or the six be retried.

Most of the former members of the Los Angeles Sheriff’s Department who have been convicted by federal prosecutors, are similarly appealing their cases (unless, like former sheriff Lee Baca, they have taken a deal, in which case appeals are precluded).

Former undersheriff Paul Tanaka and his attorneys, unsurprisingly, filed an appeal before the sun went down on the day of his conviction.

But the appeals of Sexton and the six others—namely former LASD members Gregory Thompson, Stephen Leavins, Gerard Smith, Mickey Manzo, Scott Craig, and Maricela Long—were the first to actually appear in front of the 9th Circuit. Thus the arguments put forth by the defense and countered by the prosecution, were both interesting, and closely watched.

The defendants’ attorneys traditionally are given very little time to make their legal pitches in front of the three-judge panel, which heard Tuesday morning’s cases for Sexton and the six others, so presentations have to be brief, persuasive and to the point.

In the cases of all seven, attorneys argued, among other things, that the defendants didn’t really obstruct justice, but were following lawful orders.

Among the issues that seemed to catch the attention of the 9th Circuit panelists are the following:


JUROR NUMBER FIVE

In the trial of Greg Thompson, et al, one issue flagged by the defense had to do with the dismissal of a certain juror, by U.S. District Court Judge Percy Anderson, who presided over all trials pertaining to the alleged obstruction of the FBI’s investigation into corruption and brutality inside the LASD-run LA County jails, which included the hiding of a federal informant from his FBI handlers in an operation that came to be known, unofficially, as Operation Pandora’s Box.

Here’s the deal:

On the fifth day of jury deliberations, Juror Five sent a note to Judge Anderson asking to be dismissed from the panel.

Jurors, of course, can be legally and appropriately dismissed for a host of reasons. That is why any court is wise to have a good supply of alternates on hand.

In the trial of the six, one juror had already been dismissed earlier in the deliberation process because she suddenly had an emergency that affected her childcare situation. No one raised any particular objection to her exit. Emergencies are emergencies.

(We were to learn later that this mom juror was reportedly leaning strongly toward acquittal, so her dismissal was bad luck for the defense. But those are the breaks, not grounds for appeal)

A few hours later, however, a second member of the jury panel, Juror Number Five, sent the note to Judge Anderson. It read as follows:

Due to duress, I would appreciate your consideration in accepting my resignation from this case. Always loyal to our justice system and the privilege to serve my decision has been clouded with fear of retaliation.

Juror Five was an anxious-appearing woman who always seemed to keep her distance from the rest of the pack, when it was time for the jury to leave the building.

According to the defense’s initial brief, the judge asked the juror if she feared “retaliation” from an “outside source.” But reportedly, that wasn’t the issue. She said, the defense writes, that her feelings would not affect her ability to deliberate personally. But she did not believe that there was a fair exchange of ideas among he panel, and she was also doubtful that a fair and impartial verdict could be reached. (Or words generally to that effect. )

In their second brief, the defense went further:

Two things, taken together, make Juror Five’s dismissal unlike what occurred in any of the cases cited by the government, or any case of which Defendants are aware. First, juror dismissal usually results from a claim of misconduct made by another juror or jurors. Here, no one complained about Juror Five, she raised her concerns with the court. Second, after discussing her concerns with the court, Juror Five stated, repeatedly, that she could continue with deliberations, and there was no good reason to doubt her – after all, it was she who raised her concerns with the court. On the other hand, there was ample reason to believe that her initial request to be excused stemmed from a dispute amongst jurors about the merits of the case. (Ital. from WLA.)

In other words, the defense suggested that the judge improperly and unnecessarily dismissed Juror Five, who was distressed—not because she was fearful for her safety, or because she personally could not continue deliberate fairly and impartially—but because she was in disagreement with the majority, which upset her.

To put it another way: Juror Five, had she not been dismissed, arguably could have produced a hung jury, and thus a mistrial. (The defense attorneys did not say this directly, but the possibility was implied.)

The defense attorneys say more in their briefs (the second of which you can find here), and several of the court watching attorneys who were present when the dismissal occurred mentioned that they thought letting Number Five go could cause Judge Anderson problems on appeal.

The panel seemed very interested in this issue, and two of the judges asked a string of questions. What those questions portend is impossible to say.


TO EDIT OR NOT TO EDIT

When it was Sexton’s teams’ turn, his attorney, Tom O’Brien, focused primarily on two issues, both having to do with Sexton’s grand jury testimony.

The first of the two issues, had to do with editing, in particular whether Judge Anderson allowed the prosecution to introduce an improper and misleading edit of Sexton’s grand jury testimony that essentially changed its meaning by excluding certain contextual sections that, according to the defense, would have given the jury a different and, by definition, more accurate view of what Sexton did and didn’t know.

(James Sexton, we should remind you, was tried twice. The first trial resulted in a mistrial caused by a hung jury, which was evenly split, six to six.)

In the first trial, according to Sexton’s defense team, the prosecution read a mostly intact portion of Sexton’s grand jury testimony to the jury, which—in both trials—they characterized as a confession.

In the second trial, a portion of grand jury testimony was also presented. But in trial number two, the defense contends, the original text was selectively edited.

“Selectively editing the transcript—-including significant context–—allowed the jury to be misled,” the defense wrote in their briefs, and reiterated to the three 9th Circuit judges Tuesday morning.

This is from one of their briefs, which were delivered to the panel weeks ago:

“Similarly, the Government eliminated numerous other statements clarifying Sexton’s intent and knowledge behind his alleged confessions. As described in the Opening Brief, the Government withheld from the jury numerous statements regarding Sexton’s actual lack of foundation for his alleged confessions, such as: ‘there were rumors,’ ‘we as young deputies were speculating,’ ‘I was not privileged to the entire information,” “I had conversations about this with . . . my peers and just trying to establish what we were doing,’ ‘innuendo,’ ‘we’re baby faced in there,” “I’m not going to detain a U.S. Attorney at gun point’….and so on.

To make their point clearer still, the defense included the following:

One of the justices asked a number of questions about why the editing made such a big difference, while the other two judges made notes, their expressions impassive.


THE LEGALITY OF BEING A TARGET

The second issue in Sexton’s attorneys emphasized, both in their briefs, and in oral arguments, was the idea that the prosecution grievously erred when it reportedly failed to appropriately notify Sexton that he was a target before he testified twice under oath in front of the grand jury, particularly the first time.

(Interestingly, Sexton testified that first time without an attorney, because his lawyer from the deputies’ union, ALADS, failed to show up. But that’s another issue altogether, and not relevant to the appeal.)

In any case, believing himself to be a cooperating witness, not a potential defendant, Sexton didn’t demand to have an attorney present. Nor did he invoke his 5th Amendment rights, or claim a faulty memory when answering questions that could have put him in legal jeopardy.

Here’s a clip from Sexton’s attorneys’ argument:

A target must be notified of his status and rights prior to being subpoenaed for Grand Jury testimony. That did not occur here. The Government specifically advised Sexton, and his counsel, that he was not a target of the investigation (a claim that was false). (Sexton’s prior counsel stated under penalty of perjury that “it was obvious to me that I had been misled and James Sexton had always been a target defendant”).

By its own admissions—particularly given its reliance on the evidence at trial—the Government believed it had sufficient facts linking Sexton to a crime. It, therefore, had a duty to notify Sexton (or counsel) of his target status prior to obtaining a sworn “confession.”

Using that first Grand Jury testimony as a “confession,” wrote the defense, without letting Sexton know he was a target, is the equivalent of introducing a confession obtained by questioning a suspect without a Miranda warning.

The attorneys for Sexton and for the six will likely argue other points. But, as mentioned above, these are the legal questions we’ll be watching with the most ardent interest.

The prosecution replied to all of these and other points in their various briefs, and in Tuesday’s arguments.

Tuesday morning we will see how the 9th Circuit’s panel reacts.

By the way, the three judges who listened to Tuesday’s arguments and who will decided the fates of the seven defendants are:

1. Judge Ferdinand Francis Fernandez, a 1989 G. H. W. Bush appointee, stationed in Pasadena
2. Judge Richard Clifton, a 2002 G. W. Bush appointee, stationed in Honolulu
3. Judge Michelle Friedland, a 2014 Obama appointee, stationed in San Francisco

More in a while.

So, stay tuned.

Posted in How Appealing, LASD | 25 Comments »

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