Wednesday, November 7, 2018
Ninth Circuit Mulls Effect of Barring Evidence at Trial of Leroy Baca
Oral Argument in Pasadena Centers on Exclusion of Expert Testimony As to Then-Sheriff’s Faulty Memory as a Result of Onset of Disease
By a MetNews Staff Writer
Assistant United States Attorney Bram Alden addresses a Ninth Circuit panel. Seated is attorney Benjamin Coleman, who argued for former Sheriff Leroy Baca.
Arguments yesterday before the Ninth U.S. Circuit Court of Appeals in the case of United States v. Leroy Baca centered on whether the trial judge erred in excluding testimony that the then-sheriff of Los Angeles County was in the early stages of Alzheimer’s disease in 2014 when he gave false statements to federal investigators.
Baca, who resigned from office Jan. 31, 2014, was convicted March 15, 2017, of conspiracy, obstruction of justice, and false statements. He was sentenced on May 12, 2017, by District Court Judge Percy Anderson of the Central District of California to three years in prison, but has been free, pending the outcome of the appeal.
Charges stemmed from Baca’s reaction when it was ascertained that a deputy took a bribe in return for which he delivered a cell phone—in contravention of jail rules—to an inmate who was serving as an FBI informant in connection with conditions in the facility. In a turf battle, the informant was moved from jail to jail to keep him incommunicado from the FBI.
The panel hearing arguments in Pasadena yesterday was comprised of Circuit Judges Andrew D. Hurwitz and Johnnie B. Rawlinson, along with District Court Judge Stephen Bough of the Western District of Missouri, serving by designation.
Hurwitz sought a concession from Baca’s lawyer, Benjamin L. Coleman, that if Anderson erred in excluding expert testimony as to the effect of Alzheimer’s disease on memory, it would affect only the charge of making false statements at an interview.
Coleman maintained that the exclusion of the evidence affected the other charges as well, explaining that the prosecution pointed to false statements by Baca and, with the defense barred from showing the cause for his faulty memory, the jury was bound to infer “consciousness of guilt” in connection with obstruction of justice and conspiracy.
At the first trial in 2016, at which no evidence of false statements was produced, the jury voted 11-1 for acquittal, the lawyer pointed out.
Members of the Ninth U.S. Circuit Court of Appeals panel hearing arguments in the appeal of former Los Angeles County Sheriff Leroy Baca, convicted of obstruction of justice and other offenses, are, from left, Circuit Judges Andrew D. Hurwitz and Johnnie B. Rawlinson and District Court Judge Stephen Bough of the Western District of Missouri, serving by designation.
No ‘Corrupt Intent’
Hurwitz pointed to Baca’s role in having the informant shuttled “from place to place and hiding him from the FBI.” Coleman responded that his client “did that without a corrupt intent,” a requisite for a conviction.
Arguing for the government, Assistant United States Attorney Bram Alden pointed to a conclusion of an expert whose testimony was barred based merely on the facts that Baca had on one occasion forgotten the name of a bladder medication, that some persons who know the former sheriff told of instances where he seemed confused, and that he mistook the first name of a colleague. He commented law enforcement personnel commonly refer to each other by surnames.
Alden said that medical reports showed that at the time of the 2014 interview, Baca was in a “pre-clinical stage” of Alzheimer’s disease, or suffering “mild cognitive impairment.” In a pre-clinical stage, he declared, there are “no symptoms.”
He scoffed at Baca’s belief, while he was sheriff, that it was the federal authorities who were “obstructing justice and committing a crime.”
In questioning Coleman, during rebuttal, Hurwitz challenged the notion that any perception on the part of Baca that federal authorities were acting illegally would be a defense.
“If I’m one of those nuts who believe everything the federal government does is unconstitutional,” he asked, would that be a defense to crimes?
Coleman said Baca was not a nut with a wild theory. Rather, federal authorities did smuggle “a cell phone and drugs into a jail.”
Rawlinson noted a statement in a report in the record that “There are no symptoms in the pre-clinical stage.” Coleman responded by pointing to a statement on the next page that “memory impairment can occur in the pre-clinical stage.”
Disputing Alden’s assertion that an expert’s conclusion had an inadequate foundation, he said:
“Mr. Baca took a variety of different tests at different times.”
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