Former Sheriff Leroy D. Baca Deserves a Presidential Pardon

Friday, January 31, 2020

Page 9

EDITORIAL

Former Sheriff Leroy D. Baca Deserves a Presidential Pardon

Leroy D. Baca, a 49-year veteran of the Los Angeles County Sheriff’s Department who led that agency for slightly over 15 years, has been ordered to report to a prison in Texas by next Tuesday to serve a three-year sentence based on his conviction in the U.S. District Court for the Central District of California for obstruction of justice. And he will be incarcerated, unless President Donald Trump grants a pardon, which we fervently hope that he will.

Justice has, indeed, been obstructed—but not by Baca. That cause was frustrated and circumvented by federal authorities who were not about to allow an official of some county agency to stand up to them and seek to block unlawful conduct on their part. Their attitude was: How dare a mere sheriff question the supremacy of the federal government?

Baca was the victim of muscle-flexing by the FBI after he broke off its access to one of his prisoners whom it was using as a stoolie, and was the prey of a high-handed and cold-blooded judge whose fitness for judicial office parallels an orderly’s suitability for performing an organ transplant.

HERE WERE REPORTS OF ABUSES in the county jails, overseen by the Sheriff’s Department. Day-to-day management of the detention centers had been relegated by Baca to his undersheriff, Paul Tanaka. Meanwhile Baca tended to broader aspects of jail administration, including instituting innovative programs to teach inmates crafts—and even earn degrees—enabling them to obtain jobs, minimizing the prospects of recidivism on their part.

Baca did not desire to block an investigation; he simply wanted to be a part of uncovering the facts and remedying what was wrong. Instead of accepting the sheriff’s offer of cooperation, the FBI in July 2011 smuggled a cellphone into a jail and provided it to an inmate, Anthony Brown (who is currently serving 423 years-to-life sentence for armed robbery), so he could communicate with federal agents.

Possession of a cellphone by an inmate of a jail was at that time, as now, a misdemeanor under California Penal Code §4575, punishable by a fine.

How did the FBI get the cellphone to Brown? It bribed a deputy sheriff, Gilbert Michel, to betray his duties to his department by bringing in contraband. He was paid $1,500. The FBI had put aside $10,000 for bribes and kickbacks in connection with its probe, according to an FBI memo later uncovered.

This is not conduct of an upright and valiant agency, which the FBI once was.

It was Baca’s response to that conduct that led to the criminal charges against him.

E PAUSE TO LOOK AT JUST WHY the presence of cellphones in a jail is unlawful, and why Baca was justifiably upset that the FBI had caused such a device to be sneaked into a facility under his command. (Why Baca would resent the corruption of one of his deputies, the bringing about of the man’s disloyalty to the department, is obvious.)

The Legislature’s banning of cellphones was not a matter of a picayune denial of an amenity. In fact, recognition of a pressing need for excluding these devices from jails and prisons led to legislation, effective Oct. 6, 2011, creating Penal Code §4576 which rendered it a misdemeanor, punishable by up to six months in jail and a $5,000 fine, to deliver a cellphone to an inmate.

The bill was declared to be an urgency measure, reciting:

“In order to prevent the smuggling of wireless communication devices into prisons and to prevent the commission of future crimes involving those devices at the earliest possible time, it is necessary that this act take effect immediately.”

In support of the bill that created the statute, its author, then-state Sen. Alex Padilla (now California’s secretary of state) said:

“Smuggled cell phones in our State prison system are a growing and dangerous problem. Inmates with access to cell phones have been ordering murders, organizing escapes, facilitating drug deals, controlling street gangs, and terrorizing rape victims. In 2006 the number of phones confiscated was 261. Last year it reached 11,000. This year we are on pace to exceed 13,000. 43 states and the federal government have taken action to tackle this problem in their prisons. Yet California which has the biggest problem has failed to act year after year.”

Then-Gov. Jerry Brown, in signing the bill, remarked:

“When criminals in prison get possession of a cell phone, it subverts the very purpose of incarceration. They use these phones to organize gang activity, intimidate witnesses and commit crimes. Today’s action will help to break up an expanding criminal network and protect law-abiding Californians.”

The FBI was hardly oblivious to these concerns. An “FBI Enforcement Bulletin,” dated July 2010, says that inmates have used cellphones, among other purposes, to “intimidate and threaten witnesses; transmit photographs, including offensive pictures sent to victims; orchestrate crimes, such as gang activities’ coordinate escapes; bribe prison officers; [and] order retaliation against other inmates.”

O, HOW DID BACA RESPOND to the intrusion on his terrain by the hot shot feds? Once the cellphone was discovered on Aug. 11, 2011, Brown was shifted around, from jail to jail, under pseudonyms, to prevent FBI access to him. Was this obstruction of justice? No, it was a ploy utilized in a governmental turf war—a war the federal government had launched.

What Baca didn’t realize was that the adage “You can’t fight City Hall” is dwarfed by the reality that the federal government will tolerate no challenge to its notion that it is almighty, not subject to impudent challenges by local law enforcement officers, and will spare no effort to wreak vengeance on those who dispute its power.

In an indictment, the Office of U.S. Attorney for the Central District of California charged:

“On or about September 26, 2011, defendant BACA appeared on television and stated that he believed the FBI had committed a crime.”

He did say that. There’s no reason to suspect he did not believe that what he said was true. Possession of a cellphone by an inmate was a crime, under §4575. Although Penal Code §4576, which criminalizes the act of bringing a cellphone into a jail or prison, was not to take effect until the following week, Penal Code §182 was in force, rendering it a crime to conspire to commit a crime.

The same day Baca appeared on TV, two sheriff’s deputies threatened FBI special agent Leah Marx with arrest, under Baca’s authority, based on what was perceived to be—and reasonably so—criminal conduct on the part of the FBI.

If the FBI had authority to do what it did, it cannot be expected that Baca, who is not an attorney, would have appreciated that in light of what facially appears to be a clear violation of California law which federal agents are, in general, not privileged to breach. Good faith and reasonableness on his part are not reasonably contestable.

HAT IS CONTESTABLE IS THE REASONABLENESS of the government’s position that no crime was committed by Brown—hence none by an FBI agent—because §4575 proscribes the possession of a cellphone by an inmate who is not “authorized” to possess that item, and it provided that authority.

Another Penal Code section that less directly forbids such possession—§4573—also pertaining to unauthorized possession, has likewise been dismissed by the federal government because it gave consent.

Section 4575, which applies to “[a]ny person in a local correctional facility who possesses a wireless communication device…who is not authorized to possess that item,” unmistakably contemplates a lack of authorization by the authorities in charge of that local facility. And §4573 expressly refers to authorization “by the person in charge of the prison or other institution referred to in this section.”

Yet, in the 2016 Ninth Circuit case of United States v. Smith, dealing with the convictions of seven deputy sheriffs in connection with the federal investigation, it is recited that Anderson instructed:

“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.”

The Ninth Circuit neither embraced nor rejected that faulty proposition. It said:

“[E]ven if we assume, without deciding, that the instruction was incorrect, it is not a basis for overturning the verdicts.”

The government’s position reflects its fairmindedness-be-damned quest for victory, and Anderson’s rendering of that instruction is a characteristic of his lack of impartiality with respect to Baca and his deputies.

HE OFFICE OF U.S. ATTORNEY INITIALLY charged Baca simply with lying to investigators about efforts of his office to impede the federal probe. Whether he consciously lied is not known. At the time he was quizzed, Alzheimer’s disease was already affecting his memory.

The former sheriff—he retired on Jan. 31, 2014—on Feb. 10, 2016, pled guilty to one count of making a false statement in connection with his role in the hiding Brown from the FBI. It was agreed with the Office of U.S. Attorney that he would be sentenced to anywhere from no time in jail to six months.

A report by that office noted how minimal Baca’s role was.

But Anderson would not hear of a light sentence for the ailing septuagenarian notwithstanding his background of selfless service to the people of this county. At a hearing on July 18, 2016, the judge excoriated Baca for his participation in witness tampering—notwithstanding that a position paper of the Office of U.S. Attorney’s said that the “extensive investigation and multiple trials have revealed no evidence that suggests defendant Baca was ever aware of this witness tampering.” Anderson accused Baca of complicity in altering evidence, something not charged, not even hinted at by prosecutors.

Baca subsequently withdrew his guilty plea; he was tried; the jury was deadlocked 11-1 in his favor.

Given that vote, the federal prosecutors did something inordinate. They opted to retry Baca. Not only that, they added a charge of obstruction of justice, and now portrayed Baca—contrary to its initial depiction—as a sinister character.

He was retried with the added charges. He did not testify, which no doubt went against him. How could he testify when Anderson barred any reference to his suffering from Alzheimer’s disease and every time he failed to remember something he was asked about, it would appear he was concealing the truth.

The former sheriff was convicted on March 15, 2017, and on May 12, 2017, Anderson sentenced Baca to three years in prison.

Anderson wanted the former sheriff jailed pending appeal, but the Ninth Circuit stepped in on Oct. 18, 2017, saying:

“Baca has clearly and convincingly shown that he is not likely to flee or to pose a danger to the safety of any other person or the community if released, and the parties do not dispute this finding.”

THE LOS ANGELES TIMES, IN A JAN. 22 EDITORIAL, commented:

“Baca is sick and elderly, it is true. But he and others who abuse their considerable power to harm others must be brought to account or otherwise leave us with a nagging sense that they evaded justice. For Baca to go free would be an indictment of a system that turned a blind eye for too long to the jail violence, the corruption and the misuse of high office.”

Baca did not harm others. He did not cause or condone jail violence. He did not misuse his office. The Times’s implication to the contrary is balderdash.

For the Times to employ the term “corruption” reflects irresponsibility. It is true that the Ninth Circuit opinion affirming his conviction said that “ ‘corruptly’ as used in the statute means the act must be done with the purpose of obstructing justice.” That’s entails use of the word in a technical legal sense. “Corruption,” as it commonly understood, connotes taking something of value under circumstances connoting dishonesty—such as taking a bribe.

EE BACA IS NOT A MISCREANT. He’s a hero—a dedicated public servant who never missed a day of work in his 49 years in the Sheriff’s Department, a beloved elected official who was placed at his post by voters four times. The blackguards are the “feds,” including FBI officials and prosecutors, right down to the lowest of the culprits, Judge Percy “Mad Dog” Anderson.

Baca should not be going to prison.

President Trump should grant a pardon.