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As Lee Baca’s Trial Approaches, the Fight Heats Up About the Former LA Sheriff’s “Cognitive Impairment”

November 21st, 2016 by Celeste Fremon



THE LEGAL FIGHT OVER LEE BACA’S MEMORY

Earlier this month, both the defense and the prosecution agreed with the assessment of a court-appointed examiner
that former Los Angeles County Sheriff Lee Baca was competent to stand trial on charges of obstruction of justice, conspiracy to obstruct justice, and lying in four different instances to federal officials.

The trial is scheduled to begin on December 6.

Now the fight is over whether or not the former sheriff was cognitively able in 2011, and again in 2013, to be legally responsible for his alleged crimes.

Baca was diagnosed with early stage Alzheimer’s disease in early 2016, news that became public in June of this year. Since that time, the issue of the former sheriff’s cognitive impairment has been a legal matter as well as a medical one. (WitnessLA first broke the story of Baca’s illness in late May.)

Yet, although both parties have agreed that Mr. Baca’s is fit to go to trial next month, the former sheriff’s mental state will clearly be a major feature of the defense’s argument that Baca should be acquitted of all charges. The defense team contends that in the late summer and early fall of 2011, when the events underlying the obstruction of justice charges occurred, Baca was already failing cognitively.

They further contend that the former sheriff was suffering from memory impairment during his April 12, 2013 government interview, where he was asked about “events and conversations” that occurred in August-September 2011. It was his answers to questions in this interview that resulted in the charge of lying to federal officials.

The defense has a medical expert, Dr. James Spar, a professor of clinical psychiatry at UCLA’s med school, who will testify that Baca was already suffering from memory loss and confusion in 2013, and very likely was comprimised for up to ten years prior to his diagnosis this year.

In Baca’s filing, defense attorney Nathan Hochman also names two former department members—former LASD deputy Micky Manzo, and former LASD captain Tom Carey—who reported observing Baca seeming “confused.”

Not surprisingly, the prosecution team of Assistant U.S. Attorneys Brandon Fox, Lizabeth Rhodes, and Eddie Jauregui presents a very different view.


“NO MEDICAL EVIDENCE”

In a motion filed earlier this month, government prosecutors write that, during Baca’s 16-year tenure as LA County sheriff, he “never reported any concerns about memory loss or cognitive impairment to any doctor.”

The opposite is true, they write. “There is no medical evidence of cognitive deficiencies in
defendant’s medical records during, or before, his alleged crimes.”

According to the prosecution, Baca “repeatedly went to the doctor and reported no issues related to cognitive functioning.’ Doctors who saw him from 2010 to 2013 “observed and reported that he was alert and oriented to person, place, and time, that there were no significant neurological findings, and that psychiatric affect was always normal.”

In addition, Baca “planned to run for re-election in 2014.”

The prosecution further notes that it was only in March 2014 that Baca sought medical advice based on concerns about his cognitive functioning. “Medical records from that period indicate that defendant’s chief complaint was sleep disturbance,” they write, “although defendant also complained of anxiety, depression and memory difficulties.”

It was not until May 13, 2014, when Baca went to see a neuropsychologist, “that cognitive impairments were first noted by a clinician.”


TUESDAY HEARING

In a hearing at 3 p.m. on Tuesday, U.S. District Court Judge Percy Anderson will hear the defense and the prosecution both present arguments about whether or not Baca’s expert, Dr. James Spar, should be permitted to testify at trial–along with some other issues.

Baca, if you’ll remember, originally pleaded guilty in February of this year to one felony count of lying to federal authorities when officials questioned him in the course of a wide-ranging investigation into “corruption and civil rights violations” in the department he’d led for fifteen years, 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 at a hearing scheduled for late July.

However, when the hearing arrived, Anderson rejected Baca’s plea deal, 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…..”

Rather than risk the unspecified longer sentence that Judge Anderson intimated he intended to hand down, Baca opted to go to trial. Thus in early August, the former sheriff was indicted by a federal grand jury for obstruction of justice and conspiracy to obstruct justice. The two new charges were added to an expanded version of the original charge of lying to federal officials.

We’ll let you know what happens on Tuesday. So stay tuned.


PHOTO OF LEE BACA BY SAXON BRICE

Posted in LASD, Pandora's Box, Sheriff Lee Baca | 11 Comments »

Fed Judge Denies Baca’s Motions to Recuse Lead Prosecutor and Change the Trial Location

November 1st, 2016 by Taylor Walker

At 3:00 on Monday afternoon, in the courtroom of U.S. District Judge Percy Anderson, former Los Angeles County Sheriff Lee Baca’s attorneys made the case for why the lead federal prosecutor, Brandon Fox, should be recused from Baca’s upcoming trial, as well as why the trial venue should be moved from Los Angeles. Both of these motions were denied by Judge Anderson.


A BIT OF BACKSTORY

Mr. Baca, if you’ll remember, pleaded guilty in February to one count of lying to federal officials. In return for his plea, he was to receive a sentence of between 0 and 6 months in prison.

Judge Anderson rejected the plea because of the low sentencing range, saying it trivialized the harm that Baca had done to the department and to the community at large.

In mid-October, US District Court Judge Otis D. Wright, II, denied a motion filed by Baca’s attorneys to recuse Judge Anderson from presiding over the former sheriff’s trial.


THE MOTION TO REMOVE PROSECUTOR BRANDON FOX FROM THE CASE

Standing before Judge Anderson, former sheriff’s defense lawyer, Nathan Hochman, cited a need to call lead prosecutor Brandon Fox as a witness in the trial as the reason for the motion to remove the prosecutor from the case.

Hochman argued that Fox is “uniquely qualified” to provide testimony regarding the Baca’s demeanor—whether Baca exhibited “physical manifestations of Mr. Baca’s being confused, distracted, lucid, tired, or alert”—during the interview Fox and a handful of others conducted in 2013 that resulted in the former sheriff’s plea deal. Baca has, as most readers are aware, been diagnosed with early stage Alzheimer’s disease. The diagnosis was made public in late June (although WLA broke the news the month before).

There were five others present for the interview who could be called to the witness stand instead of Fox, according to the team of prosecutors, which along with Fox, included Assistant U.S. Attorneys Lizabeth Rhodes and Margaret Carter, plus two FBI agents.

The motion appeared to be less about “securing the testimony of a witness,” and “more about kicking of the prosecutor.” Anderson said. It would be like the Buffalo Bills’ coach asking to disqualify Tom Brady from a game, the judge quipped.

It’s also worth noting that Baca has added a new member to the defense team, former Assistant U.S. Attorney Tinos Diamantatos, who was present on Monday, but stayed silent.


SEEKING A NEW TRIAL LOCATION

Along with the motion to recuse Fox, Hochman argued in favor of moving the former sheriff’s trial to another part of California due to a “tsunami of highly prejudicial media coverage.”

Hochman told Anderson jurors would not be able to put Baca’s previous admission of guilt “out of their heads,” arguing that potential jurors within the Central District—or in LA—have been subject to a deluge of “inflammatory” media coverage regarding the case.

Judge Anderson regularly interrupted Hochman to ask questions or make comments about the validity of the defense’s arguments. Anderson said that it was ironic that the defense would ask for a change of venue when Hochman gave an interview to a member of the press “the same day the motion was filed.” It was a theme Anderson seemed to like. At a previous hearing, the judge noted that Baca’s lead attorney seemed fond of holding press conferences on the steps of the courthouse.

In the prosecution’s response to the request to move the trial, Jauregui pointed out that the Central District of California is the “largest judicial district in the nation.”

If the question is “Can this person get a fair trial?”, the answer is “Yes,” said Jauregui.

Judge Anderson also called attention to the fact that not all of the 7.5 million potential jurors residing within the Central District’s Western Division are in Los Angeles County. The division also includes communities more than 200 miles away in counties stretching up the coast. Jurors could come from as far away as Ventura, Santa Barbara, and San Luis Obispo Counties.

Furthermore, it “was not difficult to find impartial jurors” for former undersheriff Paul Tanaka’s trial, Anderson said. As for Baca’s case, the “decibel level of media attention” has also diminished somewhat over the past few months, the judge noted.


STRIKING A PARAGRAPH FROM THE INDICTMENT

There was, by the way, a third motion, albeit one that elicited less drama than the first two. In this last motion, Baca and his attorneys wanted to strike the following paragraph, 7(b), from the indictment:

From no later than December 2010 and continuing to at least July 2011, allegations surfaced that LASD deputies working on the 3000 floor of [Men’s Central Jail], who called themselves the “3000 Boys,” exhibited gang-like and violent behavior, used excessive force against inmates, and falsified reports to cover up wrongdoing.”

The defense team reasoned that the information “goes beyond alleging the elements” of Baca’s charges, and “is irrelevant and is extremely prejudicial.”

Anderson said that for the paragraph to be excised, it would have to include information not related to the defendant. In this case, however, the paragraphs above 7(b) qualify the information by stating that Baca was “well aware” of the allegations of abuse described in paragraph 7(b).

After nearly two hours of discussion between Anderson, Hochman, and the federal prosecutors, the judge denied each of the three motions.

All parties have been ordered to appear at a mental health competency hearing for Baca on Nov 21 at 3:00pm.


THIS STORY WAS UPDATED at 12:02 P.M, November 1, 2016

Posted in LASD | 6 Comments »

Former Sheriff Lee Baca Goes to Court to Get Trial Moved Out of LA & to Get Lead Prosecutor Off Case

October 31st, 2016 by Celeste Fremon


LEE BACA & COMPANY MAKE MOTIONS

On Monday afternoon, former Los Angeles County Sheriff Lee Baca and his attorneys will go to court to try to persuade a federal judge to grant two motions that Baca and company say are crucial to their case.

The first request is for a change of venue. Baca’s lead attorney, Nathan Hochman wrote in the lengthy motion that his client cannot get a fair trial in Los Angeles County, and likely not in areas as close as Orange or Riverside Counties either, due to “a tsunami of highly prejudicial media coverage of the case.”

Motion two seeks to have the government’s lead prosecutor, Brandon Fox, removed from the prosecution’s team because the defense says it plans to call Fox as a crucial witness.

Attorney Hochman’s argument about what he describes as Fox’s importance on the witness stand is laid out in 56 pages, and centers around the interview with Baca by the feds that took place on April 12, 2013, during which the former sheriff allegedly lied to two federal prosecutors, one of them Fox—along with two FBI agents—about his alleged knowledge and participation in event that took place in the late summer of 2011, and that would ultimately form the basis for all the obstruction of justice cases against members of the sheriff’s department.

Baca, if you’ll remember, was indicted by a federal grand jury for obstruction of justice and conspiracy to obstruct justice. These two new charges came on top of an 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 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…..”

Among other things, Hochman contends that, as the main questioner of Baca during his interview with the feds (which led to his original charge), Fox can testify uniquely about the former sheriff’s physical and mental state as he answered questions during the four and a half hour interview, “since part of Mr. Baca’s defense….will rely on the impairment of his memory as a result of his Alzheimer’s disease, to remember in April 2013 what occurred twenty months before in August and September 2011.”

Hochman also wants to ask Fox why he decided to only audiotape the interview rather than video-taping it, when video “would be able to show whether Mr. Baca showed signs of tiredness, confusion, or lucidity…” and more.

Another question the defense feels it is crucial to ask Fox is “why he failed at the beginning of the interview, in contrast to other interviews he conducted in the investigation, to admonish Mr. Baca that although he was not under oath, he could be prosecuted for any false statement made to the FBI and U.S. Attorney’s Office. “

One might wonder why a four-time elected sheriff who headed up the nation’s largest sheriff’s department for a decade and a half should need to be warned that lying to federal officials was against the law, whether under oath or not, but that’s a matter that will no doubt be taken up at the trial.

(WLA wrote about Baca’s motions at more length here.)


CAN’T GET JUSTICE IN LA

A week or so after Baca’s motions were filed, the government team came back with its own strongly-word arguments explaining why the defense’s motions should not be granted.

Regarding the defense demand for a change of venue, the government wrote, “While this case is of public interest, as many cases in this district are, the trial atmosphere has not been ‘utterly corrupted’ such that defendant cannot obtain a fair trial. The idea that twelve impartial individuals could not be empaneled in this, the largest federal judicial district in the nation, is indeed ‘hard to sustain.’

Furthermore, the government argued, “if the Court finds, based on the voir dire process, that actual prejudice may exist,” then the Court can have a back-up jury pool on stand-by in Santa Ana or elsewhere.”


As for getting lead prosecutor Brandon Fox kicked off the government’s legal team, the prosecution had this to say:

“Defendant’s motion is frivolous,” the government wrote. “Defendant has shown no need, let alone the required ‘compelling need’ for AUSA Fox’s testimony. It is obvious that he does not intend to call AUSA Fox as a witness. Instead, defendant’s filing is a thinly veiled attempt to remove from his case an experienced trial attorney who has led the successful prosecutions of defendant’s co-conspirators.”

Originally, Baca and his team also sought to have U.S. District Judge Percy Anderson recused from the case, arguing that Anderson was prejudiced against the defendant.

Since that motion was shot down earlier this month, it means that Anderson will be deciding on Monday’s motions.

Also, we noticed that, after replacing his original attorney, Michael Zweiback, with Nathan Hochman in August, the former sheriff is adding yet another lawyer to his line-up, this one, an out-of-towner from Chicago named Tinos Diamantatos.

More after the hearing. So stay tuned.

Posted in LASD, Sheriff Lee Baca | 1 Comment »

Baca’s Motion to Recuse Federal Judge is Denied….& Tanaka’s Appeal Keeps Him Out of Prison (For Now)

October 14th, 2016 by Celeste Fremon



FEDERAL JUDGE SHOOTS DOWN LEE BACA’S EFFORTS TO HAVE TRIAL JUDGE REMOVED

On Thursday, U.S. District Court Judge Otis D. Wright, II, denied the motion filed by attorneys for former Los Angeles County Sheriff Lee Baca to recuse federal Judge Percy Anderson from presiding over Baca’s trial, which is due to begin on December 6.

Late last month, Baca’s legal team led by attorney Nathan Hochman, filed three dramatic pre-trial motions, one of which was to try to force the recusal of Judge Anderson, whom the defense argued could not be an objective jurist.

Hochman’s argument for recusing Anderson centered around statements that Anderson made when he rejected Baca’s plea deal. The defense argued that those statements indicated that “the Court predetermined that Mr. Baca is guilty of conspiracy and obstruction of justice,” even though, at the time, Hochman pointed out, the former sheriff had yet to be indicted on those charges.

Mr. Baca, if you’ll remember, pleaded guilty in February to one count of lying to federal officials. In return for his plea, he was to receive a sentence of between 0 and 6 months in prison.

Judge Anderson rejected the plea because of the low sentencing range, saying it trivialized the harm that Baca had done to the department and to the community at large.

“It’s one thing to lie to an AUSA,” Anderson told Baca. “It’s another thing entirely, as the evidence has shown, where the chief law enforcement officer of the County of Los Angeles is involved in a wide-ranging conspiracy to cover up abuse and corruption occurring in the Men’s Central Jail.”

Anderson was, of course, also the judge who presided over the trial of the six former department members who were previously convicted of obstruction of justice for allegedly getting in the way of the FBI’s investigation into abuse and corruption in the jails, plus the two different trials of former LASD deputy James Sexton, who was convicted of the same charges. Perhaps, most significantly, Anderson presided over the trial of Paul Tanaka, where the part that Lee Baca did or did not play in allegedly trying to derail a federal investigation repeatedly came up in testimony.

Baca and company argued that given the various statements Anderson made during the sentencing hearings, the judge should not remain. “Even if the Court were to offer that it could put these predeterminations aside,” wrote attorney Hochman, “the standard for recusal is whether the Court’s appearance of impartiality may be reasonably questioned, not whether the Court is actually biased against Mr. Baca.”

But in an 11-page ruling, Judge Wright disagreed.

“In order to prevail on a disqualification motion based on bias,” Wright wrote, “the defendant must provide facts which ‘must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ Judge Anderson’s remarks do not even approach the category of expressions of dissatisfaction or annoyance or anger directed at either the defendant or defense counsel which the Court has found permissible, much less an indication of a ‘bent of mind that may prevent or impede impartiality of judgment.’”

In the final analysis, Wright continued, “Baca has failed to offer facts which would lend supportfor the claim that disqualification of Judge Anderson is warranted in this matter.”

(Interestingly, Wright, who was appointed to the federal bench in 2007 by George W. Bush, served as a member of the Los Angeles County Sheriff’s Department from 1969 to 1980, by which time he’d graduated from law school and was ready for his legal career.)

Wright’s denial of the motion to get rid of Anderson may or may not bode well for the other two significant motions that Baca’s team filed last month.

Specifically, defense attorney Hochman also filed a motion asking for Baca’s trial to be moved to another part of the state of California, claiming that, due to the “constant, inflammatory, and far-reaching media coverage surrounding this matter,a trial within the Central District of California, particularly within Los Angeles County, will violate Mr. Baca’s due process rights.”

And in another interesting move, Baca and company asked for lead government prosecutor Brandon Fox to be removed from the prosecution’s team, claiming that the defense needs to call Fox as a crucial witness.

On Monday, October 31, the not-recused Judge Percy Anderson will hear the motions to move the trial out of LA County, and to recuse prosecutor Fox.

So stay tuned.


AND IN RELATED COURTROOMS: PAUL TANAKA’S APPEAL TO THE 9TH CIRCUIT PAUSES THE GO-TO-PRISON CLOCK

Back in late September, U.S. District Court Judge Percy Anderson ruled that the fact that Paul Tanaka, the former second in command of the Los Angeles Sheriff’s Department, was appealing his conviction didn’t mean he could stay stay out of prison while he waited around to see what the Ninth Circuit Court of Appeals would do.

Instead, Tanaka was ordered to report on October 7, either to the low-security federal prison camp in Englewood, Colorado, or to the U.S. Marshals office in downtown Los Angeles, to begin his five year sentence—appeal or no appeal.

But, Anderson’s ruling is only part of the dance between the courts and Mr. Tanaka’s attorneys, Dean Steward and Jerome Haig, who—following Anderson’s ruling—quickly filed their appeal with the Ninth, which automatically stopped the clock anyway when it came to their client’s report-for-prison day.

This means Tanaka can stay out of prison until the Ninth Circuit decides whether or not it will hear the former undersheriff’s appeal. The appeals court could say no, but that is unlikely.

Then, presuming the Ninth Circuit agrees to hear Tanaka’s appeal, the clock is further stopped until the hearing, and then until the ruling. If Tanaka loses his appeal before a three-judge panel at the Ninth, then he and his attorneys can still ask to appeal en banc, which means to the court as a whole, which again stops the clock….and so on.

The former undersheriff of the nation’s largest sheriff’s department was convicted of obstruction of justice and conspiracy to obstruct justice pertaining to allegations that Tanaka personally directed and oversaw deliberate efforts to upend the FBI’s investigation into a culture of brutality and corruption inside the LA County jails, which began in 2010.

Seven of the other former department members who were also convicted of obstruction of justice charges filed appeals with the Ninth Circuit and, after hearings early this summer, lost their appeal. Six of the seven have requested to be heard en banc. The seventh, former deputy James Sexton elected not to continue to try to avoid prison. Instead, he left the en banc appeal behind, and arranged to turn himself in on August 31, to begin his 18-month sentence. He will try a U.S. Supreme Court appeal when he gets out.

Former LASD Captain Tom Carey, was originally charged with the same obstruction charges but, in a deal made with the government, pleaded guilty to lying on the witness stand during the 2014 trial of James Sexton, and is due to be sentenced in January.


MEANWHILE, THE CASE OF FORMER LOS ANGELES SHERIFF’S DEPUTY BAN NGUYEN CONTINUES TO MOVE TOWARD TRIAL – UPDATED

The retaliation case involving former Los Angeles County Sheriff’s deputy Ban Nguyen, who is suing the sheriff’s department along with former undersheriff Paul Tanaka and others, is due to begin trial on October 19.

UPDATE: We just learned today, that the trial has now been moved to January.

In early 2015, Nguyen filed a civil lawsuit alleging that he was retaliated against when he refused to falsify paperwork for certain unsuitable job candidates favored by department higher ups, particularly those candidates supported by former undersheriff Paul Tanaka.

The retaliation got worse, Nguyen alleges, when he was asked to raise money for Tanaka’s 2013 campaign to become LA County Sheriff, and he refused, explaining that he didn’t favor Mr. Tanaka for that post.

After being what he describes as forced into retirement, Nguyen decided to sue the former undersheriff, and the Los Angeles County Sheriff’s Department, for alleged violations of his civil rights along with violations of the state labor code and more. Nguyen also names in his lawsuit two LASD captains, and two department sergeants. (Kevin Hebert and Judy Gerhardt, are the captains named, although both have since been promoted to commander.)

Many of issues outlined in Nguyen’s civil complaint suggest that this trial will be an intriguing one.

More as we know it.

Posted in LASD, Pandora's Box | 23 Comments »

Bill Roundup—Round 2

September 30th, 2016 by Taylor Walker


On Wednesday, WLA posted a list of noteworthy bills signed into law by California Governor Jerry Brown. As the governor decides the fate of dozens of bills each day this week before his September 31 signing (and vetoing) deadline, WLA has gathered a second roundup of relevant justice-related bills we’ve been following this year.


ASSET FORFEITURE REFORM BILL SIGNED

On Thursday, Governor Brown signed an important bill to rein in police officers’ ability to seize money and/or property that may be tied to a crime (usually a drug crime), without due process.

Law enforcement agencies in California and other states circumvent their own states’ forfeiture laws through the controversial federal Equitable Sharing Program, which creates a loophole allowing police, by bringing feds into an investigation, to use seized money as revenue, with only the suspicion that laws have been broken. Across the nation, local agencies are abusing the tool and using it as a cash cow, taking money and property from people who have not been convicted of a crime.

SB 443, introduced by Senator Holly Mitchell (D-Los Angeles), blocks law enforcement from bypassing California’s civil asset forfeiture laws. To take advantage of the controversial Equitable Sharing Program without a conviction, the seized cash must be over $40,000.

“Solutions like SB 443 give communities plagued by injustice some relief,” said Zachary Norris, Executive Director, Ella Baker Center for Human Rights. “Low income people simply do not have the means to hire an attorney to get their lawfully earned cash returned to them. When their money gets taken by law enforcement, it’s a family crisis affecting rent, food, everything.”

Last year, a version of the asset forfeiture reform bill could not survive lobbying from law enforcement groups.

“SB 443 will not only rein in the abuse in California, but also offers a blueprint for workable solutions to other states seeking reforms. We applaud Governor Brown for signing it,” said Mica Doctoroff, a legislative advocate at the ACLU of California Center for Advocacy and Policy.


NO MORE STATUTE OF LIMITATIONS ON RAPE

SB 813, a controversial bill that eliminates the statute of limitations for rape and other sex crimes, also made it past Brown’s desk.

The bill, introduced by Senator Connie Leyva (D-Chino), was propelled by the more than 30 rape allegations against comedian Bill Cosby, many of which have passed beyond the current 10-year statute of limitations. The new law will not, however, apply retroactively.


ENSURING VOTING RIGHTS FOR AB 109ERS

Brown also signed a bill that will clarify and affirm the voting rights of individuals who are locked-up for non-serious felonies serving time in county jails because of California’s prison realignment (AB 109). The bill, AB 2466 by Assemblymember Shirley Weber (D-San Diego), also applies to eligible AB 109ers under county supervision.


ANOTHER WINNER FROM ASSM. WEBER: CALGANG DATABASE OVERHAUL

Thanks to the governor’s signature on AB 2298, people will be notified of their impending inclusion on California’s gang database, CalGang, and will have the opportunity to challenge the designation.

People who admit to law enforcement officers that they are gang members or who have gang-related tattoos are added to the database, but associating with known gang members and wearing clothing that might be gang-related also sends people into the CalGang database. Advocates say the vague criteria often have the effect of penalizing people of color for living in the wrong neighborhood.

A recent audit from State Auditor Elain M. Howle found serious errors in the database, which the audit shows lacks necessary state oversight and does not adequately protect the rights of the more than 150,000 people listed in the database.


SIGNED: RESTORATIVE JUSTICE ACT

The Restorative Justice Act, also by Assm. Weber, aims to increase rehabilitation and education programs and make them available for all inmates, not just non-violent offenders.

The bill changes language in a section of the penal code, removing references to punishment as the purpose of incarceration. Now, according to the changes, public safety—which is carried out through rehabilitation, restorative justice practices, and accountability—is the purpose of incarceration.


PROP. 47 DEADLINE EXTENDED

Brown signed another bill introduced by Assm. Weber, AB 2765, , which will extend the deadline for Proposition 47-eligible Californians to get their low-level felony convictions reclassified as misdemeanors. The will give Prop. 47ers seeking to reduce their felony convictions—upon a showing of good cause—an extra five years to apply beyond the current November 2017 deadline.


BILLS TO PROTECT VULNERABLE FOSTER CHILDREN FROM DOCTORS WHO PRESCRIBE PSYCHOTROPIC MEDICATIONS AT ALARMING RATES

The newly signed SB 1174 by Senator Mike McGuire (D-Healdsburg) will trigger regular reports on physicians and their prescribing patterns of psychotropic medications, making it easier for the Medical Board of California to confidentially identify, conduct investigations of, and hold accountable doctors who over-prescribe psychotropic drugs to foster children. (For backstory, read Karen de Sá’s five-part investigative series for the San Jose Mercury News, “Drugging Our Kids,” which inspired SB 1174 and a number of other reform bills and policy changes.)

Governor Brown vetoed another bill that would have increased the requirements for juvenile court authorization of psychotropic meds for child welfare system or probation-involved kids. SB 253 by Senator William W. Monning (D-Carmel) would have required, among other safeguards, second medical opinions for prescriptions to foster kids under five, or in cases of multiple prescriptions. Brown called the bill “premature” in a veto message, and said he wants to wait to see the impact of new juvenile court medication authorization rules from a bill signed last year.


VETOED: BILL TO BAN CONTRACTING WITH FOR-PROFIT PRISONS

Governor Brown vetoed SB 1289, a bill introduced by Sen. Ricardo Lara (D-Bell Gardens), which would have banned cities and counties from contracting with (scandal-plagued) for-profit prison companies to run immigrant detention centers in California. All-told, four municipalities, including cash-strapped city of Adelanto, are currently contracting with private detention centers.

“I have been troubled by recent reports detailing unsatisfactory conditions and limited access to counsel in private immigration detention facilities,” Brown wrote in a veto message. “The Department of Homeland Security, however, is now considering whether private contracting should continue for immigrant detention, and if so under what conditions…These actions indicate that a more permanent solution to this issue may be at hand.”


RECORDING INTERROGATIONS

Under current law, officers must record interrogations of minors suspected of committing murder. SB 1389, a bill from Sen. Steven Glazer (D-Orinda), will expand the rule to include adults accused of murder.

The recording of police interrogations is an important safeguard against false confessions, which land innocent people behind bars, sometimes for decades.


UNCORRUPTED AUTOPSIES

SB 1189, signed by Brown on Wednesday, aims to reduce the political pressure leveraged against forensic pathologists, and would require all autopsies to be carried out by a licensed physician and surgeon. Introduced by Sen. Richard Pan (D-Sacramento), the bill will also force law enforcement agencies to hand over all information about a death to those conducting an autopsy prior to the close of an investigation. This KQED story by Julie Small gives some alarming context as to why this bill is such an important reform.


“YES” TO COMPASSIONATE RELEASE

SB 955, a bill from Sen. Jim Beall (D-San Jose), will give state hospitals the power to grant compassionate releases for terminally ill or incapacitated patients who are charged with a crime but found unfit to stand trial.

Posted in children and adolescents, Edmund G. Brown, Jr. (Jerry), Foster Care, Gangs, Restorative Justice, Sentencing, Uncategorized | 1 Comment »

Baca Wants Lead Prosecutor, Federal Judge AND City of LA Disqualified

September 29th, 2016 by Celeste Fremon



In a string of motions filed early this week, Nathan Hochman,
the attorney for former Los Angeles County Sheriff Lee Baca, claimed that lead government prosecutor Brandon Fox plus U.S. District Judge Percy Anderson should both be recused from Baca’s upcoming trial that is scheduled to begin on December 6 of this year.

In addition Hochman has argued that Baca’s trial must be moved to another part of the state of California. Due to the “constant, inflammatory, and far-reaching media coverage surrounding this matter,” Baca’s legal team writes, “a trial within the Central District of California, particularly within Los Angeles County, will violate Mr. Baca’s due process rights.”

The defense went on to say that, if legal proceedings remain in Los Angeles, the former sheriff could not get a fair trial, due to “a tsunami of highly prejudicial media coverage of the case.” Thus, attorney Hochman would like proceedings to be transferred to, say, Sacramento, or Fresno, or San Diego. 
 And failing that, they would settle for Riverside or Orange counties.



DUMPING THE JUDGE

The former sheriff’s attorneys—present and past-–hinted when Baca’s plea deal was falling apart that they might make a push to remove Judge Percy Anderson from the case if Baca ended up going to trial. Now that Baca’s trial date is set, he and his attorney, Nathan Hochman, are making a forceful pitch for Anderson’s removal.

Hochman’s argument for recusing Anderson centers around statements that the judge made when he rejected Baca’s plea deal, which the defense argues makes clear ”that the Court predetermined that Mr. Baca is guilty of conspiracy and obstruction of justice,” even though, at the time, the former sheriff had yet to be indicted on those charges.

Mr. Baca, if you’ll remember, pleaded guilty in February to one count of lying to federal officials. In return for his plea, he was to receive a sentence of between 0 and 6 months in prison.

Judge Anderson rejected the plea because of the low sentencing range, saying it trivialized the harm that Baca had done to the department and to the community at large.

Anderson arguably had reason, at the time, to knowledgably make such statements since he was the judge who presided over the trial of the six former department members who were previously convicted of obstruction of justice for allegedly getting in the way of the FBI’s investigation into abuse and corruption in the jails, plus the two different trials of former LASD deputy James Sexton, who was convicted of the same charges. Perhaps, most significantly, Anderson presided over the trial of Paul Tanaka, where the part that Lee Baca did or did not play in allegedly trying to derail a federal investigation repeatedly came up in testimony.

Now the defense points to statements such as this one below, which Anderson made at one of this summer’s sentencing hearings, as the reason why he should not preside over the trial of the man who ran the Los Angeles Sheriff’s Department, when those previously convicted of obstruction engaged in the actions, and followed the orders, that led to their convictions.

Anderson: It’s one thing to lie to an AUSA; it’s another thing entirely, as the evidence has shown, where the chief law enforcement officer of the County of Los Angeles is involved in a wide-ranging conspiracy to cover up abuse and corruption occurring in the Men’s Central Jail.

Hochman and company contend that there is no reasonable way Anderson can remain. “Even if the Court were to offer that it could put these predeterminations aside, the standard for recusal is whether the Court’s appearance of impartiality may be reasonably questioned, not whether the Court is actually biased against Mr. Baca. “

The defense also considered it problematic that Anderson was a member of the Christopher Commission, the independent commission that investigated misconduct in the Los Angeles Police Department leading up to the Rodney King beating.

“Some general determinations of the Christopher Commission include,” wrote Hochman, “[t]he failure to control [certain] officers is a management issue that is at the heart of the problem…”


THE LEAD PROSECUTOR AS WITNESS

The lengthiest motion—56-pages—was reserved for Baca and company’s legal pitch to have the government’s lead prosecutor, Brandon Fox, removed from the prosecution’s team because the defense says it plans to call Fox as an important witness.

Attorney Hochman’s argument about what he describes as Fox’s importance on the witness stand centers around the interview with Baca by the feds that took place on April 12, 2013, during which the former sheriff allegedly lied to two federal prosecutors, one of them Fox, along two FBI agents, about his knowledge and participation in departmental actions in the late summer of 2011 that would ultimate form the basis for all the obstruction of justice cases against members of the sheriff’s department.

In addition to being charged with obstruction of justice, and conspiracy to obstruct justice, Baca is charged with four counts of lying to federal officials, based on what he said in that interview in the spring of 2013.

Hochman contends that, as the main questioner of Baca, Fox can testify uniquely about the former sheriff’s physical and mental state as he answered questions during the four and a half hour interview, “since part of Mr. Baca’s defense….will rely on the impairment of his memory as a result of his Alzheimer’s disease, to remember in April 2013 what occurred twenty months before in August and September 2011.”

Hochman also wants to ask Fox why he decided to only audiotape the interview rather than video-taping it, when video “would be able to show whether Mr. Baca showed signs of tiredness, confusion, or lucidity…” and more.

Another question the defense feels it is crucial to ask Fox is “why he failed at the beginning of the interview, in contrast to other interviews he conducted in the investigation, to admonish Mr. Baca that although he was not under oath, he could be prosecuted for any false statement made to the FBI and U.S. Attorney’s Office. “

(One might wonder why a four-time elected sheriff who headed up the nation’s largest sheriff’s department for a decade and a half should need to be warned that lying to federal officials was against the law, whether under oath or not, but that’s a matter that will no doubt be taken up at the December trial.)

Since Fox was the lead prosecutor on all the obstruction of justice cases against former members of the sheriff’s department, along with several of the cases involving alleged brutality by former sheriff’s deputies, one presumes the prosecution team would be very loathe to lose him.

“All Mr. Baca wants is a fair trial that has a fair judge, a fair prosecutor and a fair jury,” Hochman told Matt Reynolds of the Courthouse News Service on Tuesday. “If he receives that fair trial he believes that he will prevail.”

Two of these matters will be taken up in a hearing in the courtroom of Judge Percy Anderson on October 31, Halloween.

The recusal of Anderson has been referred to another federal judge, Michael W. Fitzgerald



MEANWHILE, ON WEDNESDAY JUDGE ANDERSON RULES THAT PAUL TANAKA MUST REPORT TO PRISON WHILE HE WAITS FOR HIS APPEAL

At a Wednesday hearing, Judge Percy Anderson ruled that Paul Tanaka cannot remain out of prison while he waits to for the 9th Circuit Court of Appeals to rule his appeal.

However, the next step is for Tanaka and his lawyers to appeal Anderson’s decision to the 9th, which will keep Tanaka from having to report to a federal lock-up.

Joel Rubin at the Los Angeles Times has more on the ruling, and the appeal to come.

Posted in Uncategorized | 11 Comments »

Case Going to Trial of LA Sheriff’s Investigator Claiming Retaliation for Refusing to Falsify Job Apps & to Raise Big $$ for Tanaka

September 19th, 2016 by Celeste Fremon


NO SETTLEMENT, GOING TO COURT

In early 2015, former Los Angeles County Sheriff’s deputy Ban Nguyen filed a civil lawsuit alleging that he was retaliated against when he refused to falsify paperwork for certain unsuitable job candidates favored by department higher ups, particularly those candidates supported by former undersheriff Paul Tanaka.

The retaliation got worse, Nguyen alleges in his lawsuit, when he was asked to raise money for Tanaka’s campaign to become sheriff, and he refused, explaining that he didn’t favor Mr. Tanaka for that post.

(If you remember, Tanaka was in the running from mid-2013 through November 2014 for the job that Sheriff Jim McDonnell holds today.)

After being what he describes as forced into retirement, Nguyen is suing the former undersheriff, and the Los Angeles County Sheriff’s Department for alleged violations of his civil rights along with violations of the state labor code and more. Nguyen also names in his lawsuit two LASD captains, and two department sergeants. (Kevin Hebert and Judy Gerhardt, are the captains named, although both have since been promoted to commander.)

According to court documents filed late last week, the defendants attempted with reams of paperwork to get a summary judgement without going to trial. But it appears that the case is going to trial anyway.**

“For Ban it isn’t about the money,” sources close to the case told us. At this point, say the sources, Nguyen wants to “expose the corruption” he alleges, in open court.

Indeed, given some of the witness already deposed, the trial, which is expected to begin in mid October, will be well worth watching.


PRESSURE, POOR POLYGRAPHS, AND PAINTING THE PAPERWORK WHITE

Ban Nguyen, 51, has an interesting background. He was born in what was then Saigon, and emigrated with his family to the United States in 1974, when he was approximately nine-years-old, and the writing was on the wall about where the war in Vietnam was headed. (Saigon fell—or was liberated, depending upon your political perspective—on April 30, 1975.) In 1985, eleven years after his arrival, Nguyen became a U.S. citizen.

Nguyen joined the LA County Sheriff’s department in 1996, when he was in his early 30s. For the first ten years of his career as a deputy, according to court documents, things went well. Nguyen, who has a BS in Biology and and MA in Public Administration, did not try to promote past the rank of deputy. He comes from a high achieving family and reportedly had—and still has—other business interests of his own, and thus additional sources of income. As a consequence, he had no real desire to advance up the promotion ladder. He simply liked the work of being an LASD deputy.

After working in various other parts of the department, Nguyen was transferred in 2008 to the personnel division’s “Pre-Employment Unit,” where for four years he recruited deputy candidates and oversaw and reviewed parts of their application process, a job he liked and at which he seemed to excel.

In 2012, however, according to Nguyen’s court filings, he was transferred to personnel’s “Administrative/Reserve” team, where a healthy portion of his duty was to handle the job applications of “sensitive” deputy or reserve candidates, meaning those who, for one reason or another, were important to someone or other on the LASD’s command staff, most often, allegedly, the then-undersheriff, Paul Tanaka.

Applicants for deputy sheriff training (DST)—as opposed to applicants for “non-sworn” positions—are required to complete an 11-page application that includes questions on work history, education, family, references, along with questions designed to reveal any potential problem areas such as drug use, arrests and the like. After that, an investigator checks out references and does other probing. The candidate must also make it past such hurdles as a psych evaluation, and a polygraph test.

Once he began working on personnel’s Administration/Reserve team, according to Nguyen, he became aware that there was a practice of not only giving the “sensitive” candidates a leg up, but also the team was expected to whitewash the applications of favored candidates when necessary.

For instance, in one alleged situation, a candidate whose father was a friend of the former undersheriff failed the required polygraph test six separate times, specifically around questions relating to drug use and some other problematic issues. When Nguyen declined to recommend that the candidate be accepted for deputy training anyway, the applicant’s case was allegedly yanked from Nguyen and given to another, presumably more agreeable investigator, at which time the polygraph-challenged candidate magically passed the poly the seventh time around.

In other cases, according to court filings, Nguyen and colleagues were given a negative background report on a pet candidate, and told to rewrite the report, in effect ‘sanitizing” it, until it was shiny and clean enough to get the applicant through the gate.

Sometimes the alleged sanitization involved finding a more compliant psychologist to redo the psych evaluation, if “there were negative psychological or psychiatric issues” that had previously prevented the candidate from passing. Or, as with the earlier alleged example, Nguyen and his colleagues would be ordered to redo polygraphs, modifying or leaving out questions that produced problems.

When Nguyen refused to whitewash an application, reportedly stating to his immediate boss, Sergeant Ismael Chavez, that the practice of shoehorning “unqualified” candidates onto the force was both wrong and a potentially dangerous strategy, Chavez allegedly “berated and screamed” at him, according to court documents.

Nguyen states that he went over Chavez’s head to request to the appropriate lieutenant that the matter be investigated, but the lieutenant allegedly declined to look into the matter.


PERSONNEL AND POLITICS

The 2012 job transfer also coincided, according to Nguyen, with the discovery by the captain of personnel division at the time, Kevin Hebert, now a department commander, that Nguyen had experience and expertise with political fundraising. For instance, in 2010, he had reportedly been helpful in helping Sandra Hutchens get elected to the position of Orange County Sheriff-Coroner. (Hutchens, who was originally with the LA Sheriff’s Department, before moving to Orange County, served first as the interim sheriff after former sheriff Mike Corona resigned in the face of federal indictments.)

One day at work in mid-November 2012, according to Nguyen, his boss, Sgt. Chavez took him to see then-captain Hebert, who Chavez said wanted to talk to Nguyen. Hebert then allegedly asked Nguyen what his experience was with raising money, and how one went about raising big bucks for a political campaign, or words to that effect. Nguyen states that he told of his involvement in previous political campaigns, and explained, in general, how one goes about raising $100,000 in political funds.

A few days later, according to Nguyen, he was again brought to meet with Hebert during the work day, at which time Hebert asked if he’d like to raise money for Paul Tanaka, who was planning to run for sheriff. Would he be on the team? Hebert allegedly asked.

Nguyen says he declined multiple requests.

(For the record, Hebert has stated in a deposition that he never met with Nguyen, much less pressured him to become involved in Tanaka’s campaign.)

Near the end of 2013, according to the lawsuit, Nguyen told then Sheriff Lee Baca about the demand to “lie about or conceal damaging background information concerning Tanaka connected applicants,” and the retaliation that occurred when he would’t comply, or support Tanaka’s political campaign. Rather than helping matters, Nguyen alleges that, after he went to Baca the retaliation—which had begun after his various failures to cooperate with what he believed was wrongdoing—got worse. Hebert was no longer captain of personnel, but his successor, then-captiain Judy Gerhardt, allegedly told Nguyen “he was not allowed to go beyond the chain of command again with his complaint.”

Interestingly, when Nguyen went to meet with then Sheriff Baca, which he did more than once, a retired LASD commander who had been Nguyen’s mentor in earlier years, came with him to help bolster his case. The retired commander was Robert Lindsey, a man with his own personal story about refusing what he believed were illegal (or at the very least corrupt) orders coming from Paul Tanaka.

According to the signed declaration Lindsey made for this case, when Lindsey was still with the department, Chief Tanaka told him to make it possible for certain chosen favorites to advance up the ranks by giving these favored few the answers to the lieutenants’ exam. Additionally, according to Lindsey, Tanaka asked him to give certain applicants-for-promotion credit for non-right test answers that Tanaka allegedly claimed were “close enough.” Lindsey alleges that when he declined to facilitate Tanaka’s orders to…well….cheat, Tanaka told him that he would “live to regret it,” and that his career was over, and then allegedly triggered an internal affairs investigation against Lindsey.

(Lindsey also alleges that, years later, Tanaka took out his still existing fury on Lindsey’s LASD deputy son by ginning up a criminal case against Robert Lindsey Jr. But that’s another upcoming civil lawsuit for another day.)

Nguyen describes an increasingly hostile work environment, then a transfer to an “entry level position” in what was known as the Civilian Investigative Unit. When he tried to transfer to what he believed was a more appropriate job, he was moved to a desk job under then-Captain Gerhardt, which he alleges involved “no real duties.” At the same time, he was told that an anonymous complaint had been filed against him, and that he was being “investigated,” although according to Nguyen he was never told anything about the investigation, or whether it was criminal or administrative in nature.

Nguyen states that, around this point, his health and state of mind began to suffer.

In September 2014, he was put on sick leave. In November 2015, Nguyen retired. In between he filed his lawsuit, now slated to go to court in October.


THE UNDERLYING ISSUES

In court, the defendants will of course tell a very different story—or more accurately multiple different stories—than that which plaintiff Nguyen and his attorney, Richard A. Love, have told through court documents.

Yet, whichever side ultimately prevails in this lawsuit, many of the issues underlying Nguyen’s civil complaint call out loudly for better examination.

For years there have been credible reports of certain people in the LASD’s personnel division being asked to shave the dice, so to speak, for either unsuitable job applicants, or candidates for promotion who didn’t manage to make the grade on their own.

Perhaps this lawsuit will trigger a long overdue closer look at those stories of corruption.


**NOTE: We originally wrote that there was talk of a settlement of the case, which Ban Nguyen declined. Whether true or not, the most recent court documents pertain to a “Summary Judgement,” which is basically a kind of appeal from the defendants to dismiss the case.

Posted in LASD | 55 Comments »

BEGGING TO GO TO PRISON: Former LA County Sheriff’s Deputy Wants to Begin His Federal Prison Term Right Away—If He Can Get Past the Bureaucratic Obstacles

August 29th, 2016 by Celeste Fremon



On August 31, former Los Angeles County sheriff’s deputy James Sexton
will turn himself in to federal marshals in order to begin his eighteen month sentence in federal prison.

Weirdly, Sexton’s choice to get on with his prison term has not been a simple matter to achieve.

Sexton is the first and only former department member indicted for obstructing a federal investigation who has elected to go ahead and begin his prison time. Everyone else—including Paul Tanaka, the former undersheriff of the LASD—is still fighting their respective convictions. And former sheriff Lee Baca has yet to go to trial. But surrendering one’s self to the feds, it turns out, isn’t quite as simple as it seems.

As most readers remember, the obstruction indictments brought by the government against a total of 10 former LA County Sheriff’s Department members pertained to the alleged hiding of federal informant Anthony Brown from his FBI handlers, falsely threatening an FBI agent, interfering with potential federal witnesses, and generally attempting to get in the way of an undercover FBI investigation into allegations of civil rights violations, brutality, and corruption on the part of deputies inside the county’s troubled jail system.

Sexton is the lowest person on the departmental food chain to be convicted of the obstruction charges, and sentenced to federal lock-up. Although the government does not suggest he had anything to do with the threatening of FBI agents, or interfering with witnesses, he was involved in hiding federal informant Brown, based on orders coming from several layers of supervisors, including—according to federal prosecutors—the two people running the department.

Among the other defendants already convicted are former LASD deputies Mickey Manzo and Gerard Smith, former sergeants Maricela Long and Scott Craig, and former lieutenants Gregory Thompson and Stephen Leavins, who were tried as a group and whose sentences in a federal lock-up range from 21 months to 41 months.

Paul Tanaka, the notorious former second in command of the department, was himself convicted of the dual charges of obstruction of justice and conspiracy to obstruct justice for his role as the shot caller of the obstruction actions, and was subsequently sentenced to five years behind bars.

Tanaka has appealed to the 9th Circuit for relief thus he is able to stay out of prison until his appeal is settled.

The six—Manzo, Smith, Scott, Craig, Thompson and Leavins—-appealed to the 9th Circuit Court of Appeals and lost with a ruling from a three-judge panel. Now they are appealing to the entire 9th Circuit for their collective case to be reheard, so they too are not yet packing for incarceration.

Former LASD captain Tom Carey, who made a plea deal with the government, has yet to be sentenced.

And of course, there is former Los Angeles County Sheriff Lee Baca who, according to the government, gave the orders that set the whole obstruction circus in motion, with Tanaka doing the micromanagement.

Baca originally agreed to a plea deal for which he expected to do somewhere between no time at all, and six months. He backed out of the deal in early August, after it became evident that U.S. District Court Judge Percy intended to go with a sentence that could be substantively longer than the maximum six months that his agreement with the feds prescribed. (It should be noted former deputy Sexton’s sentence was three times higher that the highest end of Baca’s proposed sentence 0 to 6 months.)

Now Baca is going to trial, beginning in early December, and his attorney, Nathan Hochman has indicated he will likely have experts and witnesses explain to the jury that the former sheriff was too compromised by his oncoming Alzheimer’s disease to have knowledgably committed the three crimes of which he is charged by the federal government.

(Mr. Baca has been indicted for obstruction of justice and conspiracy to obstruct justice, along with the original charge of lying to federal officials that Baca admitted to back in February, as part of his now dynamited plea deal.)


GETTING ON WITH IT

Sexton, who is 31, has been fighting his case for the last three years, and through the whole of his three-year marriage, and says he wants to pay whatever debt he owes so that he can begin to plan a new future.

“Out of respect for the jurors who sat for my two trials,” he wrote to WitnessLA in a text, “I’m going to continue the appellate process while serving time in an effort to move on with my life…..I am grateful for the people in my life, especially my wife, family, and friends who supported me exercising my Constitutional Rights.” But now he is ready to move on, he said.

(Sexton refers to “two trials” because he was tried twice, with the first proceeding ending in a mistrial due to a hung jury that was “hopelessly divided” with six for conviction, and six against. Also, although Sexton says he has stopped fighting his prison term, he is not completely giving up on his right to appeal in the future.)

When Sexton decided to move forward with serving his time, however, the U.S. Bureau of Prisons, the 9th Circuit and the rest of the federal bureaucratic machinery was not ready to take him, although he was sentenced on September 16, 2014, and his appeal to the 9th—along with that of the six—was rejected on August 4 of this year.

He could turn himself in if he wanted, but the BOP has nowhere to put him. Former law enforcement officials are generally incarcerated in facilities where the BOP is better able to keep them safe from inmates who may wish to harm cops. However, they didn’t have such a facility ready. So, he might languish in a less secure private lock-up for an indefinite time.

Concerned at where his client might wind up, Sexton’s lawyer, former U.S. Attorney, Tom O’Brien, attempted to blast through the logjam by filing a urgent motion with the 9th Circuit to pull Sexton out of the appeals queue, where he had landed automatically when the six decided to re-appeal, even though Sexton had not himself asked for a second appeal.

“In order to move forward with his life,” O’Brien wrote to the 9th, “Mr. Sexton now seeks to begin serving his sentence as expeditiously as possible. To do so, he respectfully requests, and the Government does not oppose this request, that the mandate should be issued as to him as quickly as possible.”

Once the 9th Circuit gave up their dominion over Sexton, O’Brian submitted a petition to Judge Anderson, in whose court Sexton was convicted and sentenced.

At first it was not clear that the various motions would shove the slow-moving governmental cogs. But finally, late on Friday Judge Anderson signed the necessary stipulation, which went then to Sexton’s probation officer and then to the US Marshals immediately. Sexton hopes the BOP will be ready for him by his wished for turn-in date of August 31. It remains to be seen what prison will be his home for the next year and a half.

“Still, I think we’re prepared now,” Sexton’s wife, Keely Sexton told WLA. “We’ve come to a peace with it. Yeah, it’s scary. I respect him for going in. But it’s scary. It is. I’m scared of coming home to an empty house, and scared of not knowing what’s going on with him, and scared of not being able to talk to him for a while. We’ve gotten to go through a lot of things that people who have been married for 30 years had never gone through. And it’s made us stronger. I wouldn’t trade any of that. Now it’s time to get on with it.”

Posted in LASD | 13 Comments »

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

August 22nd, 2016 by Celeste Fremon

UPDATE:

At Wednesday’s hearing, although former sheriff Lee Baca’s lawyer, Nathan Hochman, pushed for any trial to be delayed until February or March of next, after considerable debate, U.s. District Court Judge Percy Anderson set a new trial date for December 6th.


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 | 20 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.

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