LOS ANGELES (CN) – Federal prosecutors said Tuesday they will again try former LA County Sheriff Leroy Baca on charges that he obstructed an FBI investigation into abuse at county jails, following a mistrial last month.
U.S. District Judge Percy Anderson declared a mistrial after concluding the six men and six women of the jury were hopelessly deadlocked. Jurors later revealed that they had voted 11-1 to acquit Baca, with one juror refusing to budge from his position that the retired official was guilty.
The government accuses the former official of conspiring to hide inmate-informant Anthony Brown from the FBI to prevent him from testifying before a federal grand jury, after jailers discovered a deputy had unwittingly smuggled an FBI phone into Men’s Central Jail.
At a morning hearing in Anderson’s courtroom, prosecutor Brandon Fox said the government wants to rejoin counts of obstruction and conspiracy to obstruct justice to an additional charge that Baca made a false statement at a meeting with investigators in April 2013.
Last year, the government won a ruling to divide the trials because it said that admission of testimony about Baca’s Alzheimer’s diagnosis would prejudice its case by painting him in a sympathetic light. The second trial on one count of making a false statement was to follow, but the mistrial derailed that.
Fox said the government is now willing to live with the prejudice.
“We think it’s best for us to go with all three counts,” Fox told Anderson.
Baca, who was wearing a gold tie and a small sheriff’s badge on the lapel of his gray jacket, looked on sternly as Hochman called the move strategic and “highly unusual.”
“We would have liked to have had one trial,” Hochman said.
But Anderson agreed that it was the prosecution that faced prejudice by trying all the counts together.
“If they are willing to live with the prejudice – if there is any – that’s their decision,” Anderson said.
The judge said attorneys would make opening arguments on Feb. 21.
Government spokesman Thom Mrozek declined to comment to reporters after the hearing. Baca also declined comment.
Outside the courthouse, Hochman said the government had lost the trial and was now “backtracking.” But he said he welcomed the chance to try all three counts.
“We look forward to it and look forward to the same type of result because we do not believe the government will meet its burden of proof in the upcoming trial,” Hochman said, with Baca and wife Carol Chiang standing behind him.
In court, Hochman said Baca would consider filing a double jeopardy motion. Fox told the court that he had provided case law to Hochman that shows that Baca has no grounds to make that claim.
But Hochman said the former official was keeping his options open.
“Anytime a judge declares a mistrial, that can be an exception to the double jeopardy rule if the basis for the mistrial was properly articulated by the judge,” Hochman said.
The attorney said that if Anderson or the Ninth Circuit rules that double jeopardy applies, the government would not be able to retry the two counts.
But Miriam Krinsky, a former federal prosecutor who has also served as executive director of Los Angeles County’s Citizens’ Commission on Jail Violence, told reporters outside the courthouse that a ruling in Baca’s favor would be unprecedented.
“If they’ve been tried and acquitted, found not guilty, you can’t go back to the well. You don’t have a second shot,” Krinsky said. “Now, that principle has never been applied in the context of a hung jury. The defense is going to need to argue that this really shouldn’t be viewed as a hung jury – that whatever happened at sidebar vis-a-vis the one holdout means that the jury really would have found Lee Baca not guilty had the court or the government not interfered in that process.”
Fox said in court that he was considering filing a motion that would prevent Baca from wearing his sheriff’s star during the trial. The prosecutor argued that the badge could improperly influence the jury.
Anderson will also consider an outstanding motion to exclude the testimony of witness Dr. James Spar, who the defense says will talk about Baca’s Alzheimer’s diagnosis and whether he was cognitively impaired at the April 2013 meeting.
If a new jury finds Baca guilty, he faces up to five years in prison on the conspiracy charge, 10 years for obstruction and up to five years for making a false statement.