In Baca retrial, familiar battle lines with some new faces as prosecutors hope for a different ending

The voice of former Los Angeles County Sheriff Lee Baca filled a downtown L.A. courtroom last week.

On a short recording of Baca, pulled from a past interview, jurors heard him assure federal authorities he had been unaware of a plan by a group of subordinates to confront and threaten an FBI agent who was investigating abusive sheriff’s deputies.

Listening as well from the witness stand was one of those subordinates. The recording ended and a prosecutor asked retired Capt. William “Tom” Carey if Baca had been telling the truth.

“Was he aware? Absolutely he was aware,” Carey said firmly.

The exchange was a notable moment in the retrial of Baca, who for a second time faces allegations that he was part of a scheme to obstruct the FBI. The use of Baca’s own words and the appearance of Carey underscored the changes the government had made in its second attempt to convict Baca after nearly losing the first go-around. Neither Carey nor the recording was part of the first trial.

After almost two weeks of testimony, jurors are expected to begin deliberations Monday. The first trial in December ended in a mistrial when the jury was unable to reach a verdict. All but one of the 12 jurors in that case voted to acquit Baca.

The addition of new witnesses, elimination of others, and playing excerpts of Baca’s interview were an attempt by prosecutors to address what jurors from the first trial said was a fundamental problem with the government’s case: A lack of hard evidence tying Baca directly to a ploy by subordinates to interfere with an FBI investigation into widespread abuses by deputies in county jails.

In the face of the government’s adjustments, Baca’s attorney, Nathan Hochman, stuck largely to the script that almost won Baca his freedom in the first trial. He argued that Baca’s second in command, former Undersheriff Paul Tanaka, took advantage of the sheriff’s trust, keeping Baca in the dark while he carried out the obstruction scheme. And as before, Hochman tried to poke holes in the government’s case by emphasizing the lack of any smoking gun that proves Baca’s guilt.

Hochman was hamstrung by several rulings U.S. District Judge Percy Anderson made before the retrial. A psychiatrist, for example, was barred from testifying about Baca being diagnosed last year with Alzheimer’s disease and his belief that the illness can explain why Baca might have made inaccurate statements to prosecutors during the recorded interview.

And for the retrial, the judge ordered Baca to remove the Sheriff’s Department pin that he wore on his suit lapel. Baca did not testify in either trial.

A prominent figure in national law enforcement circles during his nearly 15 years as sheriff, Baca stands as the final and most high-stakes target for federal prosecutors in a years-long campaign to convict the group of sheriff’s officials accused in the jail scandal. Already, nine rank-and-file deputies and higher officials, including Carey and Tanaka, have been convicted or have pleaded guilty.

A conviction would bear out the decision by the U.S. attorney’s office to pursue criminal charges against Baca and then to retry the case after the jury’s lopsided 11-1 vote. An acquittal, or another deadlocked jury, would be a significant loss — a sign prosecutors overreached in trying to prove a major corruption scandal had reached to the top of the Sheriff’s Department.

The case revolves around six weeks in August and September 2011 after the discovery by sheriff’s officials that FBI agents had bribed a deputy to smuggle a cellphone to a county jail inmate. The inmate was working as an informant for the agents in an investigation into allegations of widespread corruption by deputies working in the jails, including claims that inmates were routinely beaten without justification.

In response, prosecutors have alleged, Baca and Tanaka directed a group of deputies and mid-level commanders in a ploy to derail the FBI inquiry. The plan allegedly included hiding the informant from his FBI handlers, pressuring deputies and the informant not to cooperate with the FBI and the attempt to intimidate the lead agent in the case by threatening her with arrest.

A cache of emails, along with phone records and testimony, led to convictions against Tanaka and the others in the group. But without nearly as much evidence pointing to his knowledge and involvement in the obstruction plan, building a case against Baca proved to be difficult.

Seeing the weakness in their case, prosecutors tried to avoid a trial and struck a deal with Baca last year that called for the 74-year-old to plead guilty to a single count of making false statements to federal investigators and spend no more than six months in prison.

The agreement fell apart when Anderson, who has handed down stiff sentences in the previous obstruction cases, announced it was too lenient and indicated he would put Baca behind bars for longer than six months. Baca opted to withdraw his plea and go to trial.

In the retrial, Assistant U.S. Atty. Brandon Fox jettisoned several witnesses who previously testified about the obstruction plan but didn’t have any knowledge about Baca’s alleged involvement.

He replaced them with, among others, Carey and former Lt. Greg Thompson. Both men testified to meetings they attended with Baca where they said various aspects of the obstruction plan were discussed.

Thompson, who received a 37-month sentence, told jurors that he was prepared to send the inmate informant, Anthony Brown, to state prison, but that Baca ordered him to keep Brown in the county jails run by the Sheriff’s Department.

And Thompson added a previously unknown detail to a conversation he had with the sheriff. After FBI agents were allowed into the jail to speak with Brown despite orders that he be kept from visitors, Thompson went to the sheriff’s office to apologize.

Baca, he said, was calm and told Thompson the slip-up was part of a “chess game” — a statement prosecutors say points to Baca’s attempt to outmaneuver federal officials.

Carey, who has pleaded guilty to giving false testimony as part of a deal with prosecutors, testified that Baca was aware his subordinates were carrying out a plan to hide the informant from FBI agents by registering him under fake names in the jail computer system and moving him to a holding cell in a distant station.

He added that Baca was also present for a meeting with Tanaka, Carey and another sheriff’s official in Tanaka’s office, where it was decided that two of Carey’s investigators would confront the lead FBI agent in the case at her home.

While the purported purpose was to question the agent as part of an investigation into the smuggled phone, confronting her at her home was meant to send a message of defiance to the FBI and intimidate the agent by threatening her with arrest, Carey said.

“He was OK with it,” Carey testified of Baca. “He didn’t tell us not to do it. His advice to us was just not to put handcuffs on her.”

Hochman pounced on Carey as an admitted liar, calling into question his credibility and Carey’s expectation that, in exchange for his cooperation, prosecutors will ask Anderson to show some leniency when he sentences Carey.

In the retrial, Baca faces charges he made several false statements to investigators during the interview he gave Fox and others in 2013, in which he denied knowing about the plan to obstruct the FBI. The judge chose to set that charge aside in the first trial and had planned to hold a separate proceeding for it.

Adding the false statement charge back in for the retrial opened the door for Fox to play excerpts of the interview — something he could not do in the first trial. Instead of simply playing the clips for the jury, he and other prosecutors used them while questioning witnesses, a tactic meant to amplify their effect on the jury.

To bolster his contention that Baca was aware of what Tanaka was up to, Fox also played for jurors a recording from a 2015 deposition the former sheriff gave in an unrelated lawsuit. In it, Baca talked of his close relationship with Tanaka, who “had a unique talent of doing exactly what I wanted.”

Stymied by Anderson’s rulings, which limited the types of defenses he could mount, Hochman called only a single witness on behalf of Baca.

Michael Gennaco testified about his role as a watchdog over the department for more than a decade. His testimony, however, was repeatedly cut short by the judge, who ruled that Gennaco’s observations about his experiences were irrelevant to the case.

Times staff writer Victoria Kim contributed to this report.

[email protected]

For more federal courts news from Los Angeles, follow @joelrubin on Twitter

ALSO

Baca ‘was aware’ of plan to obstruct FBI, former sheriff’s official tells jury

Lee Baca in court, Round 2: What will sound familiar in the retrial, and what will be new

The story behind the mistrial in the Lee Baca corruption case