Metropolitan News-Enterprise


Wednesday, January 11, 2017


Page 1


Decision to Retry Former Sheriff Baca Is Questioned

Former Court of Appeal Justice Elizabeth Baron Says It ‘Smacks of Vindictive Prosecution’;

Ex-District Attorney Cooley Declares Judge Anderson Should Not Have Assented


By a MetNews Staff Writer


A decision by federal prosecutors to retry former Los Angeles County Sheriff Lee Baca on obstruction of justice and conspiracy charges drew negative comments yesterday in light of the 11-1 jury verdict on Dec. 22 in Baca’s favor.

Former Court of Appeal Justice Elizabeth Baron, who was a deputy attorney general from 1977-82, commented that “retrying Sheriff Baca on charges in which there was an 11-1 vote for acquittal smacks of vindictive prosecution,” adding:

“Of course, the prosecutors have the ‘right’ to retry him on those charges, but they also have an ethical obligation not to try anyone unless they have a sincere good faith belief they can prove the person’s guilt beyond a reasonable doubt. I think it is incumbent upon the trial judge to question whether any new evidence has surfaced that would lead to such a good faith belief and, if not, to dismiss those…charges.”

Under an earlier ruling by U.S. District Judge Percy Anderson of the Central District of California, Baca was to be tried separately on a charge of lying to federal investigators. That charge, Anderson yesterday decided, will now be rejoined with those previously tried.

Former Los Angeles County District Attorney Steve Cooley said he is “surprised at this prosecutorial decision” and expressed the view that Anderson “would have been well advised to reject the US Attorney’s decision to retry,” asserting:

“That would have been in the interests of justice.”

He noted that “there will be a new U.S. attorney” for the Central District of California, under the Trump Administration, hinting that the decision by the current holder of that position, Eileen M. Decker, to pursue the prosecution of Baca will be overridden.

He said he anticipates that U.S. Sen. Jeff Sessions, R-Ala.—whose confirmation hearing was held yesterday—will become U.S. attorney general, will have input on the selection of U.S. attorneys, and that there will be a “change in dynamics” that could affect Baca’s case.

Pellman Comments

Former Los Angeles County Counsel Lloyd Pellman commented:

“I have never been a prosecutor, but in civil litigation I never would have wasted the taxpayers’ money in a second trial after the first jury deadlocked 11 to 1 against our position. This retrial, in being combined with the alleged lying to federal investigators, smacks of a desperate attempt to throw a net over nuances and circumstantial evidence in hopes of obtaining a conviction on something at the taxpayers’ expense.”

One long-time former prosecutor accused the U.S. Attorney’s Office of “disgraceful activity.”

The person commented that except in a rare case such where the defendant is “a diabolical axe murderer and you think the jury was out to lunch,” prosecutors would not retry a case where the first jury overwhelmingly sided with the defendant.

A former judge, who presided for several years over criminal cases, remarked:

“I am surprised by the decision by the prosecution. I assume it is the harbinger of efforts to reach a new disposition based on the assumption that the trial judge will, in light of the jury verdict, have a less jaundiced view of any such disposition. If that is not the case, this prosecution is beginning to look less like an attempt to achieve justice and more of a vindictive prosecution intended to vindicate the original decision to file it.” 

Civic leader Lee Kanon Alpert, a former president of the San Fernando Valley Bar Association, labeled the decision by federal prosecutors “ludicrous.” He said the jury “spoke loud and clear and the advice provided the prosecutor and the judge in that hung jury decision should have been respected and heeded.”

Contrary View

Royal F. Oakes, a partner in Hinshaw & Culbertson LLP and a network legal commentator, saw it differently. He said it was “not a shock” that there will be a retrial, observing:

“It’s rare that simply because a jury in a first trial was tilting strongly toward the defense, prosecutors won’t aggressively pursue, and a judge won’t seriously entertain, the idea of a second trial.”

He added:

“It’s difficult to gauge the impact of now permitting a single jury to evaluate all charges against Baca, and hear evidence of his mental deterioration. On the one hand, this lets the government assert to the panel that Baca not only conspired to break the law, he also lied about it two years later. On the other hand, the sympathy a jury might feel when they hear about the former sheriff’s mental condition might diminish the chance of a conviction on any basis.”

Baca is in the early stages of Alzheimer’s Disease.

Baca and prosecutors had agreed last year that in return for a guilty plea, charges would be limited to one count of lying to investigators as to knowledge of deputies seeking to intimidate an FBI agent, and a sentence would be capped at six months in prison. Anderson, however, denounced the proposed sentence as inadequate, and Baca withdrew his guilty plea.

The charges involve efforts by sheriff’s deputies to frustrate a federal probe into conditions in the county jails. Baca has disclaimed having knowledge of their efforts.


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