Tuesday, August 16, 2016
Page 8
PERSPECTIVES (Column)
Judge Percy ‘Mad Dog’ Anderson Clings to Baca Case
By ROGER M. GRACE
At the arraignment last Friday of former Los Angeles County Sheriff Leroy D. Baca on an amended indictment, there was a change in the cast of characters; Baca had a new lawyer. There was one change in the cast that was constitutionally mandated but hadn’t been made: Judge Percy “Mad Dog” Anderson was still presiding.
Anderson made it clear, through earlier remarks, that he has prejudged the evidence and that Baca stands no chance of receiving a fair trial in his courtroom.
“A fair trial in a fair tribunal is a basic requirement of due process,” United States Supreme Court Justice Hugo Black wrote for the majority in the 1955 case of In re Murchison. “Fairness of course requires an absence of actual bias in the trial of cases.”
Actual bias unquestionably exists on the part of Anderson, of the Central District of California—whose fitness as a judge, as discussed here previously, is widely questioned.
Should a trial of Baca take place, there would be no semblance of fairness in the proceeding if the judge presiding were someone who had assumed the role of the defendant’s antagonist.
Anderson revealed his hostility to Baca at a hearing on July 18, at which the jurist was expected to mete out a sentence which, under a plea bargain, was to be anywhere from zero days of confinement to six months (in conformity with federal sentencing guidelines). Anderson scotched the deal, proclaiming that six months in prison was inadequate punishment, given that the ex-sheriff had participated “in a broad ranging conspiracy to obstruct justice that included hiding an inmate from the grand jury, altering records, witness tampering and threatening an FBI agent.”
What Baca had pled guilty to on Feb. 10 was making false statements to federal investigators, in violation of 18 U.S.C. §1001(a)(2). He had not been charged with obstruction of justice or conspiracy.
Yet, Anderson adjudged him guilty of conduct that had not been alleged, let alone proven.
While Anderson might think he is in possession of knowledge as to what Baca did and didn’t do, based on presiding over an earlier trial of seven former deputies and that of the erstwhile undersheriff, Baca did not testify in those proceedings and was not represented by counsel in them. It’s an adage that “a little knowledge is a dangerous thing,” and when a judge with a little mind converts his or her little knowledge, gleaned from evidence in past cases into a presumption of guilt as to the defendant in a present case, there is not only a blatant breach of due process, but a despicable display of hubris.
Baca on Aug. 1 withdrew his guilty plea, and on Aug. 5 was socked with a superseding indictment, now alleging obstruction of justice and conspiracy. The Office of U.S. Attorney Eileen M. Decker apparently saw nothing to be lost by charging crimes of which the judge had already proclaimed the defendant to be guilty.
What this overlooked was that the office was now seeking a prison term of more than six months, while it had cogently stated reasons in a sentencing position paper why a sentence should not exceed that period…a paper that minimized Baca’s involvement in frustrating a federal probe of the county jails. Its prior statements reveal the superseding indictment to be a sham pleading.
So, a vulturous U.S. attorney, taking a cue from an irrational judge, is seeking a multiple-year sentence for a 74-year-old man who is in the early stages of Alzheimer’s Disease, a man whose dangerousness is nil and whose public service over a period of decades has been extraordinary.
Putting aside that there should not have been an indictment in the first place, any sentence of this first offender whose misconduct was so minimal—making misstatements, not under oath, to federal investigators, which caused no prejudice to their efforts—that no prison term should ever have been contemplated.
Baca’s conduct, the judge asserted at the July 18 sentencing hearing, included “witness tampering.”
Not only did the indictment not allege that, but the Office of U.S. Attorney has virtually exonerated Baca of any involvement in it.
One witness who was the object of “tampering” was then-Sheriff’s Deputy Gilbert Michel who had accepted a bribe to smuggle a cellphone to an inmate of the Men’s Central Jail, who had become an FBI informant. On Aug. 30, 2011, then-Lieutenant Steve Leavins and then-Sergeants Scott Craig and Maricela Long conversed with Michel at the jail.
Here’s what the Office of U.S. Attorney’s position paper says:
“Leavins, Craig, and Long told Michel he had been ‘manipulated’ by the FBI. After Michel told Leavins, Craig, and Long that the FBI was trying to get information from him about brutality inside the jails, the Sheriff’s Department ordered Michel not to talk to the FBI. That same day, Leavins, Craig and Long interviewed Deputy William David Courson, who had unknowingly provided the FBI with information on abuse at Men’s Central Jail. The Sheriff’s Department once again ordered Courson not to talk to the FBI.
“The extensive investigation and multiple trials have revealed no evidence that suggests defendant Baca was ever aware of this witness tampering.”
That last sentence is not ambiguous. It is not complicated. Anderson should not have difficulty deciphering its meaning.
Notwithstanding the concession that “no evidence…suggests defendant Baca was ever aware of this witness tampering,” “Mad Dog” Anderson proclaimed that Baca was implicated in witness tampering.
The new indictment contains no such allegation.
There is also no allegation in the superseding indictment that Baca participated in, or authorized, the alteration of documents.
The alteration occurred after the Sheriff’s Department found the cellphone that Michel had smuggled in and provided to inmate/informant Anthony Brown, a convicted bank robber. Baca was incensed that the FBI was intruding on his terrain and was, without his knowledge, using an inmate as a spy.
He gave the green light to his staff to keep Brown outside the reach of the FBI. Then-Undersheriff Paul Tanaka (sentenced by Anderson on June 27 to five years in prison) was put in charge of the effort.
Computer records were altered to reflect that Brown had been released. In actuality, he had been transferred to a different jail, under a false name, and he was subsequently moved under other pseudonyms. Whether this was, as later alleged, to protect Brown, who had been revealed as an FBI “snitch,” from both inmates and guards, or not, what is relevant here is that there is no evidence that Baca was involved in the alteration of records.
Nonetheless, Anderson on July 18 proclaimed Baca to be guilty of that.
Then there’s the pronouncement by Anderson that Baca was part of a conspiracy that included “threatening an FBI agent.”
Baca made no secret of the fact that he viewed the smuggling of a cellphone into the jail as a criminal offense. As alleged in the superseding indictment:
“On or about September 26, 2011, defendant BACA appeared on television and stated that he believed the FBI had committed a crime.”
It was on that very date that two sheriff’s deputies threatened FBI special agent Leah Marx with arrest based on the perceived offense.
As it happened, Marx was not arrested. As the Office of U.S. Attorney recites in its position paper, André Birotte Jr., then U.S. attorney for the Central District of California (now a District Court judge) and Steve Martinez, then the assistant director in charge of the FBI’s Los Angeles office, telephoned Baca, “who provided his personal assurance that Special Agent Marx would not be arrested.”
Looking at it from Baca’s standpoint, a deputy sheriff would have the authority, under proper circumstances, to arrest an FBI agent. “Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law,” the United States Supreme Court’s 1932 opinion in Colorado v. Symes declares.
California Penal Code §4575(a) renders it a misdemeanor for “[a]ny person in a local correctional facility” to “possesses a wireless communication device,” and a person supplying such a device could be convicted under §182(a)(1), conspiring with another to “commit any crime.”
Alternatively, someone supplying a cellphone to an inmate of a prison or jail might be subject to a conviction of conspiracy to violate Penal Code §4570 which renders it a misdemeanor to communicate with an inmate without permission, or to bring in or take out any “writing…or reading matter.” In People v. Redd, decided by the Fifth District Court of Appeal in 2014, a man who smuggled cellphones into a prison and the inmate who received them were charged with conspiracy to violate §4570. The appeals court’s opinion upheld the conviction of the inmate, but its reasoning would equally apply to the prison cook who supplied the contraband (and pled guilty to conspiracy, as well as bribery).
The court said that the jury could reasonably infer that at least one cellphone was intended for communicating, and another one contained movies, financial documents, and photographs which constituted writings or reading matter.
It might well be that the FBI’s conduct in violating state law was privileged, occurring, as it did, in the course of a lawful investigation. An Aug. 4 decision of the Ninth U.S. Circuit Court of Appeals, upholding the convictions of Leavins, Craig, Long and four other members of the Sheriff’s Department, left that an open question.
The court, in an opinion by Judge Ferdinand Francis Fernandez, skirted the matter of whether Anderson was correct in instructing jurors that under California law, “introduction of contraband” into a jail must be “unauthorized in order for crimes to occur,” adding:
“If Anthony Brown possessed any contraband including a cellular phone at the direction of the FBI, such possession or introduction of contraband would be authorized and no violation of these California Penal codes would have occurred.”
Fernandez said that even if the instruction was infirm, other instructions rendered it harmless error.
Assuming that the FBI did have sufficient leeway in carrying out its investigation that it breached California law with impunity, that does not mean that the Sheriff’s Department, proceeding under a contrary assumption, acted for the purpose of obstructing justice. Indeed, even if Baca and his deputies knew that Marx had committed no offense—which does not appear to be the case—the Sheriff’s Department surely had leeway in conducting its own investigation as to how contraband was smuggled into the jail.
Marx was confronted in front of her home. The deputies wanted information. Intimidation (short of using a rubber hose, of course) is a common, and accepted, investigative technique.
One criminal law expert advises that “Lee Baca was a constitutional officer of a sovereign state obligated by law,” in particular, the Government Code, “to maintain the integrity and security of the jail system.”
(While the legitimacy of such an investigation seems obvious, the undertaking of it is cited in the new indictment as one of the “overt acts” in furtherance of a criminal conspiracy. Other privileged conduct—such as Baca meeting with members of the U.S. Attorney’s Office to complain of the FBI probe, and Leavins telling deputies to look for listening devices in the offices and conference rooms of Baca and Tanaka—are also denominated “overt acts.” What if a “bug” had been encountered? Would it have been “obstruction of justice” to remove it?)
Under the totality of circumstances, for Anderson to declare Baca to be a culprit in a conspiracy that included “threatening an FBI agent” was utterly irresponsible .
Under Canon 3(c)(1) of the Code of Conduct for United States Judges, Anderson is obliged to “disqualify himself… in a proceeding in which the judge’s impartiality might reasonably be questioned.”
In U.S.A. v. Baca, his lack of impartiality cannot reasonably be doubted. On July 18, he declared, in the course of an harangue, that “the [former] chief law enforcement officer of the County of Los Angeles [was] involved in a wide-ranging conspiracy to cover up abuse and corruption occurring in the Men’s Central Jail,” and pronounced Baca guilty of crimes that were then not charged, but now are. He accused him of acts that were either unsubstantiated or plainly noncriminal.
He is Baca’s adversary and, in light of his sentencing powers, would-be tormentor.
Anderson’s failure to recuse himself is judicial misconduct.
It is seemingly too late to file a disqualification motion under 28 U.S. Code §144 although, if such a motion had been timely filed following the July 18 hearing, it might well have been recognized by the Ninth Circuit as founded on one of the rare circumstances which, under the 1994 U.S. Supreme Court case of Liteky v. U.S., would justify a recusal based on a judge’s in-court comments.
If Anderson cannot be forced to step aside from the case, his manifest bias should provide a basis for reversal on appeal, should a conviction occur.
As U.S. Supreme Court Justice Felix Frankfurter observed in a 1949 concurring opinion, which he quoted in a 1957 opinion dissenting opinion, a “biased judge…is intrinsically a lawless judge.”
“Mad Dog” Anderson is, in that sense, a lawless judge, guided not by established legal precepts, but by an infatuation with power.
Use of “Mad Dog” as an imputed middle name of a jurist, by the way, was originated by the late Sir John Mortimer, creator of Rumpole of the Bailey. A recurring character in his teleplays and books was the cranky and inflexible Judge Roger “Mad Dog” Bullingham. Anderson outdoes Bullingham.
Is there to be a trial in a kangaroo court presided over by a mad dog, with a vulture prosecuting? The courtroom would be a menagerie; the proceedings would be a farce; due process would be defied.
Copyright 2016, Metropolitan News Company