October 2, 2023 by Celeste Fremon
Late Monday, the defense attorneys for Mark Ridley-Thomas filed a 37-page motion requesting bail for their client so that he won’t be in prison while they appeal his case to the 9th Circuit Court of Appeals.
It is up to U.S. District Court Judge Dale S. Fischer, the jurist who oversaw Ridley-Thomas’s trial, whether she issues permission for the longtime lawmaker to stay out on bail during the appeal—or not.
His defense team points out that the longtime policymaker is not likely to flee and does not pose a danger to the safety of any other person in the community.
“As underscored by the over 130 individuals in the community who wrote letters of support, Dr. Ridley-Thomas has an otherwise proven track record of abiding by the law and remaining close to his community in South Los Angeles.”
Furthermore, wrote the attorneys, he essentially observed the conditions of his bail for the nearly two years he spent waiting for a trial, going to his trial, and awaiting a decision from the jury. “The same would be true pending a decision on appeal.”
In case you’re wondering, there are three basic conditions for bail during an appeal:
- Not a flight risk.
- Not a threat to public safety.
- Not a frivolous appellate claim.
Thus, in today’s filing, the defense also gave us the first glimpse of some of the grounds on which Ridley-Thomas and his team will likely base their appeal.
In particular, we have learned that one of the topics the defense intends to explore on appeal is the legal concept known as the Batson challenge.
“Dr. Ridley-Thomas’s Batson challenges,” the defense attorneys wrote, “raise substantial appellate questions likely to result in reversal or a new trial.”
This case, wrote the defense, “involved one of the most prominent Black officials in Los Angeles who has had a substantial impact on the Black community.”
Thus the “government’s desire to remove Black jurors—it succeeded in removing half—was apparent during voir dire.”
(“Voir dire,” for those who have forgotten, means jury selection.)
Here’s what the defense team is talking about when it comes to a appeal based on “Batson.”
The Batson challenge
The term is based on the 1986 case of Batson v. Kentucky, in which the U.S. Supreme Court ruled that a defendant can make a case for purposeful racial discrimination in jury selection.
In the 1986 case, a black man named James Kirkland Batson was on trial for charges of second-degree burglary and receipt of stolen goods. During jury selection for Batson’s trial, the prosecutor used his peremptory challenges to get rid of the four potential black jurors, resulting in a jury composed of all whites. Batson was convicted on both of the charges against him.
Batson, however, appealed all the way to the U.S. Supreme Court, which took the case.
In their ruling, SCOTUS found that the prosecutor’s actions violated the Equal Protection Clause of the Fourteenth Amendment, and the 6th Amendment right to an “impartial jury.”
The ruling also held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it “undermines public confidence in the fairness of our system of justice.”
The challenge part of a Batson challenge refers to an objection the defense may make to take issue with the government’s use of a peremptory strike to exclude a juror from the jury pool on the basis of race.
The government must, upon the judge’s inquiry after such a challenge by the defense, present a “neutral, non-discriminatory reason for excluding a potential juror.”
Then, the district court judge may accept the government’s explanation of why the prosecution dismissed the potential juror, and overrule the defense’s objection.
Or, alternatively, the court has the right to reject the government’s reason and either seat the juror in question, or dismiss the entire slate of prospective jurors.
In MRT’s case, during jury selection Judge Fischer overruled the Batson challenge brought by the defense regarding two of the prosecution’s uses of its peremptory strikes, that the defense contends were done in a manner that was race-based.
Specifically, the prosecution struck two black female jurors and the defense made a “Batson challenge” in each of those instances.
The problem with Batson, say many legal experts, including the American Bar Association, is that proving intent in a Batson challenge is difficult.
Yet, in today’s filing, Ridley-Thomas’s team gives a preview of the argument they will make to the 9th as to why the defense’s two Batson challenges during jury selection were legally righteous when the government’s attorneys dismissed two Black women from the jury panel, “leaving no Black women jurors” on the jury at all.
On appeal, the defense reportedly intends to argue that the judge, in deciding there was no “discriminatory intent,” used a problematic legal standard.
Evidently, Judge Fischer argued that there were already a lot of non-white people on the jury—which already included two black men—so there was no problem. (Obviously, we’re paraphrasing here.)
Yet, the Batson challenge had to do with excluding Black women so, according to the defense, the fact that there were jurors of races other than solely white jurors on the panel, didn’t fix the problem of the prosecution knocking off the only two Black women from the jury.
In Ridley-Thomas’s case, the defense writes in the new motion, “the prosecutor claimed it had removed Juror No. 1, the last Black female in the panel, because when the allegations were read aloud, ‘she was shaking her head and she had her head tilted downward,’ she had sunglasses on, and took them off only when the Court addressed her, and she was at that time unemployed.’”
The defense objected to this explanation saying they had not seen Juror No. 1 shake her head and noted, “that the other reasons given are the type of reasons frequently used as pretexts to remove Black jurors.”
Furthermore, the defense added, when Judge Fischer denied the final Batson motion during jury selection, she remarked that she had not “personally observed the juror’s disputed demeanor.”
Dr. Ridley-Thomas, wrote the defense in their new filing, will raise this and other “substantial questions” on appeal “that are likely to result in reversal, a new trial, or, at minimum, a substantially reduced sentence.”
Rule 29 and Rule 33
In addition to Batson, Monday’s filing also mentions some other issues that will likely be a part of Ridley-Thomas’s appeal to the 9th Circuit. They point in particular to topics covered in two earlier legal filings by the defense (which we wrote about in July).
As readers may remember, after his March conviction, Ridley-Thomas’s defense team from Morrison & Foerster LLP (known as MoFo, for short) took the next logical legal step by filing two post conviction motions.
One of the two motions is known as a Rule 29 motion, which asked Judge Fischer to declare an acquittal, alleging that the government failed to adequately prove Ridley-Thomas’s guilt in any of the prosecutors’ nineteen charges.
Since the rule 29 motion asked the judge to overturn thejury verdict, it was the longest of long shots.
Yet, as we mentioned in July, the other purpose of a Rule 29 motion is to preserve issues for an appeal, which is the case here.
The same was true of the Rule 33 motion, also filed in July, in which the defense attorneys asked Judge Fischer for a new trial.
In presenting this motion, Ridley-Thomas’s defense team argued (and in so doing, again “preserving” the issues for appeal) that during their client’s trial, there were multiple instances of “false and misleading testimony” by the prosecution’s star witness, FBI Agent Brian Adkins, which the defense contended strongly affected the jury’s decision.
Specifically, the defense attorneys wrote that FBI Agent Adkins lied several times while testifying under oath, two of those “false and misleading” statements on critical issues pertaining to the renewal of a contract between Los Angeles County, and USC’s Suzanne Dworak-Peck School of Social Work, the so-called Telehealth Contract renewal, that became the lynch-pin of the goverment’s case.
Since we’ve been researching the conviction of MRT we’ve run across at least one additional statement made by Agent Adkins under oath that also appears to be untrue. But we’ll get to that particular issue in one of the upcoming chapters.
Which brings us back to bail
As readers know from previous chapters of this series, on March 30, 2023, after a 16-day trial, the 12-person jury found Ridley-Thomas to be guilty of seven of a total of 19 federal counts with which he was charged by the U.S. Government on October 13, 2021.
On August 28, 2023, five months after his conviction, Fischer sentenced Ridley-Thomas to 42 months in federal prison, with three additional years of post-prison supervised release, plus a $30,000 fine.
At the sentencing hearing, Judge Fischer also ordered MRT to self-surrender to federal marshals on November 13, at which time he would begin his three-and-a-half year term.
On Monday, September 11, Ridley-Thomas filed what is called a Notice of Appeal, an eight-page document in which his attorneys formally notified Fischer that their client would be appealing both his conviction and his sentence to the United States Court of Appeals for the Ninth Circuit.
As we reported earlier, last month’s Notice of Appeal also included the news that the former lawmaker would be changing the makeup of his legal team for the appeal process.
The new four-person team is made up of lawyers who are particularly experienced when it comes to the Ninth, notably including Erwin Chemerinsky, the dean of the University of California Berkeley School of Law.
Today’s filing, however, was submitted by MRT’s original legal team.
In any case, now that the defense has filed a motion for bail, government prosecutors reportedly have until October 16, to file their own brief on the matter of bail, which the feds will presumably oppose.
Judge Fischer will have until October 30, 2023, to rule on the bail question, which she can reportedly do in a public hearing on that day, or simply by filing her ruling online.
The matter of bail, say those who know Ridley-Thomas well, is a critical issue for a variety of reasons, including some health matters, and the fact that being locked up makes it extremely challenging for attorneys to work closely with their client in crafting an appeal, if those attorneys have to travel to federal prison for an in-person meeting.
“Even the judge said this is a unique case,” said Reverend Norman Johnson, who is a longtime friend of Ridley-Thomas, and the leader of a network of around 50 other local pastors.
“He doesn’t constitute a threat,” Rev. Johnson told WLA. “Bail gives MRT the ability to raise money for legal fees,” and to spend time with his family. And also to “stay in circulation to do the work in the community that he’s been devoted to for the last 30 years.”
The idea that he might not get bail, said the pastor, “raises concerns.”
More soon on the case and the appeal, so….watch this space
This article was originally posted to Witness LA