LA jail scandal: Feds may revamp strategy in retrial of LA sheriff's deputy

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Federal prosecutors told a judge Monday they'll retry an L.A. County Sheriff's Deputy charged with conspiracy and obstruction of justice for allegedly helping in a plot to thwart a federal investigation into jail abuse.

In May, a jury split six-to-six on whether James Sexton, a low-level deputy working in Men's Central Jail, participated in a conspiracy to hide a jail inmate working as a federal informant from FBI agents who were looking for him.

Legal experts called the decision to launch a second trial somewhat unusual but not unexpected, considering the feds secured guilty verdicts against six of Sexton's colleagues last week. 

"Normally when we see a retrial, it's after the government has been faced with a hung jury where only a few lone jurors held out for acquittal," said Miriam Krinsky, executive director of the Citizen's Commission on Jail Violence and a former federal prosecutor. "I think the decision to retry is really based on the resounding verdicts against the other defendants."

The six convicted last week, along with Sexton, launched a plot to undermine an FBI investigation into inmate beatings and deputy corruption in L.A.'s jails, prosecutors say. 

In 2011, as part of their investigation, the FBI launched a sting operation involving a cell phone. An undercover FBI agent bribed a sheriff's deputy to smuggle a cell phone into Men's Central Jail to an inmate working as a federal informant.

A group of deputies later found the phone, traced back the inmates' calls to the civil rights division of the FBI, and surmised that agents were investigating their colleagues for abuses, prosecutors say.

Deputies, including the six convicted and allegedly Sexton as well, then hid the inmate from the FBI until they convinced him to stop cooperating with the federal government. Two sheriff's sergeants were also convicted last week of lying to a federal agent for visiting the home of an FBI agent and threatening her arrest.

According to prosecutors at Sexton's first trial, his alleged role amounted to working the computer system at the jails to help hide the informant, and later standing guard at his jail cell to keep other law enforcement and inmates away from the informant.

After Sexton's first trial, a juror who voted to acquit told KPCC he felt Sexton was "low-hanging fruit for the prosecution."

Sexton's attorney had argued Sexton was following orders from higher-ups in the department, such as Sheriff Lee Baca and Undersheriff Paul Tanaka, when he, by his own sworn testimony, helped hide an FBI informant, changing the inmate's name and moving him from jail to jail to avoid detection. 

"Sexton was definitely the low guy on the totem pole," the juror told KPCC.  The juror voted not to convict.

Sexton's attorney also portrayed the 2011 incident as a power struggle between higher-ups in two competing law enforcement agencies--one that had the FBI using untrustworthy informants and engaging in the potentially risky act of smuggling a cell phone into a locked jail. 

Krinsky said prosecutors will have to preempt those and other arguments that didn't sway the jury in Sexton's first trial.

They'll likely rely on strategies proved in the conviction of Sexton's colleagues, "that develops a much more robust backdrop of violence in the jails, of a sheriff's department out of control, and the violations of constitutional rights that compelled the government to move forward with an unorthodox plan and with the smuggling of a cell phone into the jails."

Loyola Law Professor Laurie Levenson, a former federal prosecutor, said retrials tend to favor the prosecution, who've had a chance to hone their strategy and hear all the defense's likely arguments.

"There's no guarantee they're going to win the second time around," Levenson said. "Their odds are higher this time."

Levenson said last week's guilty verdicts also open the door to further prosecutions, potentially of any higher ups in the sheriff's department who may have been involved. Particularly if any convicted defendants choose to cooperate with the federal government. But it won't necessarily be easy.

"They're going to have to put the higher ups fingerprints on what's happening, they're going to have to point out how they were in the loop, they're going to need corroboration for it," Levenson said, meaning phone records, memos not previously disclosed, or some other verification of what officials actually knew and approved.

During Sexton's first trial, prosecutors told former Undersheriff Paul Tanaka, currently a candidate for sheriff, along with current Captain Tom Kerry that they're subjects of investigation.

Former Sheriff Lee Baca, through a spokesman, told KPCC he's been told he's not under investigation. 

Sexton will be retried on September 9, 2014.

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