In a San Diego courtroom, the Orange County district attorney’s office and a defense lawyer are set to clash this month over sweeping allegations that top prosecutors have for more than a decade hid evidence of law enforcement misconduct.
Orange County Assistant Public Defender Scott Sanders will be asking a San Diego County Superior Court judge to order a special hearing on whether a former high-level Orange County prosecutor — now a judge — withheld evidence in a murder case and covered up the county’s illegal use of jailhouse informants.
Orange County Senior Deputy District Attorney Seton Hunt opposes Sanders’ request for a hearing, saying the allegations are part of a personal vendetta by the defense attorney against the former prosecutor and have no bearing on the real issue, which is the retrial of Paul Gentile Smith. Smith is accused of killing his boyhood friend and marijuana dealer in Sunset Beach.
Smith’s conviction was thrown out after revelations that ex-prosecutor Ebrahim Baytieh failed to turn over evidence that might have been beneficial to the defense. Sanders now wants the charges dismissed entirely based on the argument that the actions of Baytieh and others constitute “outrageous government conduct.”
Sanders and Hunt are scheduled to argue before Judge Daniel Goldstein on April 19 on whether the special hearing should be held. The Smith case was transferred to San Diego because Baytieh is a sitting judge in Orange County.
In his latest motion, Sanders accused Orange County District Attorney Todd Spitzer of failing to fully investigate accusations against Baytieh and failing to inform defense attorneys under the Brady notification system about law enforcement officers engaged in the illegal use of jailhouse informants.
Because of Spitzer’s alleged inaction, Sanders contends, Smith cannot get a fair trial.
“The refusal to investigate obvious wrongdoing undermines any reasonable faith that all favorable evidence will be disclosed in this case,” Sanders wrote in his motion.
Spitzer responded that he commissioned an independent probe on Baytieh’s conduct and terminated him as a result.
“It defies logic that I’m trying to protect Brahim when I fired him,” Spitzer said. “I’m happy to litigate any issues Mr. Sanders wants to raise in court.”
Spitzer added that he now must personally approve the use of jailhouse informants by his prosecutors, and no request has been made under his administration.
Spitzer took office in 2019 pledging to reform the agency after revelations that prosecutors and Orange County sheriff’s deputies were violating jail inmates’ civil rights by using a secret network of in-custody informants. Sanders launched a crusade to unmask the network, leading to a federal investigation that confirmed the illegal use of the informants.
Sanders now contends Spitzer is not following through with his promise of reform and is instead behaving like former District Attorney Tony Rackauckas in trying to protect Baytieh to save the murder case.
Sanders wrote that the D.A.’s office is now engaged in an office-wide effort to do “damage control” in the Smith prosecution.
Baytieh was fired from his top job in the district attorney’s office in February 2022 for not turning over the evidence. Baytieh’s supporters contend he was actually fired for whistleblowing on racially charged statements made by Spitzer in an unrelated double-murder case.
Sanders alleges Baytieh failed to disclose evidence that multiple informants were used in getting incriminating statements from Smith instead of the single informant disclosed to the defense. He added that more than a dozen other pieces of evidence that might have been helpful to Smith’s defense also were withheld.
Sanders has claimed that Baytieh, in his top position at the D.A.’s office, denied the existence of the informant network for years to keep anyone from finding out about his own misuse of the snitches.
He also alleged Baytieh did not include in the required Brady notifications the deputies who aided him in the illegal use of informants. Those deputies went on to participate in nearly 100 other cases in which defense attorneys were unaware of their alleged exploits and unable to use that information to question their credibility, Sanders said. Almost all of those cases ended in convictions.
After his firing, Baytieh was elected to the Orange County bench with substantial backing from other judges.
If granted the special hearing, Sanders could subpoena Baytieh to testify.
In the past, Sanders has used the evidentiary hearing process to unmask the surreptitious use of jailhouse informants, leading to one of the largest criminal justice scandals in the nation. By the time the dust settled, Sanders had gotten the district attorney’s office removed from the case against mass killer Scott Dekraai, who fatally shot eight people at a beauty salon in Seal Beach.
Because of the misconduct, Dekraai was given multiple life terms in prison instead of the death sentence.
Sanders now represents Smith, who was convicted in 2010 of stabbing Robert Haugen 18 times and torching his body in Sunset Beach. That conviction was dismissed because sheriff’s deputies indicated they would refuse to testify about allegations they had illegally used the informants.
In previous motions, Sanders said three informants were used by the prosecution and sheriff’s officials to engage Smith in a day room at the Orange County jail. Only one of the informants was disclosed to the defense, with no hint that it was an organized operation with two other informants.
In a recorded interview, one of the informants laid out the illegal plan to get Smith to incriminate himself. Although Sheriff Don Barnes has said the CD recording was properly booked into evidence by deputies, Baytieh did not turn it over to the defense.
Baytieh did not return a telephone message seeking comment Friday. A spokesman for the court has said judges are not allowed to speak to reporters on cases.
