San Diego judge allows hearings over misconduct allegations in OC murder prosecution

A San Diego judge has agreed to hold a special hearing on whether a former high-level Orange County prosecutor, now a current judge, withheld evidence in a murder case and covered up the county’s illegal use of jailhouse informants.

San Diego County Superior Court Judge Daniel Goldstein on Monday agreed to a defense request for an evidentiary hearing that would include courtroom testimony tied to sweeping allegations of top prosecutors spending more than a decade hiding evidence of law enforcement misconduct.

Paul Gentile Smith was convicted in 2010 of killing his boyhood friend and marijuana dealer in Sunset Beach in 1988. But the conviction was thrown out in 2021 following revelations that ex-prosecutor Ebrahim Baytieh failed to turn over evidence that might have been beneficial to the defense.

Smith’s attorney, Orange County Assistant Pubic Defender Scott Sanders, is seeking to have the case thrown out entirely, alleging that the actions of Baytieh and others constitutes “outrageous government misconduct.” Since Baytieh is currently a sitting judge in Orange County, the Smith case was transferred to San Diego.

The Orange County District Attorney’s Office opposed Sanders’ request for an evidentiary hearing. Deputy District Attorney Seton Hunt previously described the allegations raised by Sanders as being part of a personal vendetta by the defense attorney against the former prosecutor, and argued they have no bearing on Smith’s retrial.

Sanders was instrumental several years ago in unveiling the illegal use of jailhouse informants in Orange County. Citing the resulting anger against Sanders amongst some at the Orange County DA’s office and sheriff’s department, Judge Goldstein asked Monday whether it was possible for Smith to get a fair trial.

Hunt, the prosecutor, noted that Tony Rackauckas, the DA at the time of the informant scandal, is no longer in office. Current DA Todd Spitzer repeatedly cited the scandal — and promised to reform the DA Office — in his successful effort to unseat Rackauckas.

Sanders — who argues Spitzer has not followed through on his promised reforms — told the judge during a hearing Monday in San Diego that anger at him by Orange County law enforcement officials has not ceased. As an example, the Sanders told the judge that Orange County Sheriff Don Barnes recently filed a state bar complaint against him that included allegations tied to the Smith case.

“I think there is enormous hostility against me,” Sanders said.

Asked after the hearing about the alleged bar complaint, Orange County Sheriff Spokeswoman Carrie Braun said that Sheriff Barnes “has not made any allegations to the California State Bar regarding the Smith case, despite Mr. Sanders’ claims.” Braun added that “there is no hostility toward him for raising issues regarding (the sheriff department) and custodial informants because those issues resolved nearly a decade ago.”

During the hearing, Sanders alleged that prosecutors have gone through “a massive effort to conceal evidence” in the Smith case. When asked by the judge if he believes there is still evidence out there that could point to his client’s innocence that he hasn’t received, Sanders responded “absolutely.”

Judge Goldstein at one point during the hearing Monday remarked regarding the Smith case that “it is something that looks like a conspiracy,” though he quickly second-guessed whether he should have used such direct language. The judge noted that it looked like more than just “a group of detectives making a bonehead move.”

In agreeing to allow an evidentiary hearing and witness testimony, the judge made clear that the defense will have to establish not only that past wrongdoing occurred, but also that it would prevent Smith from currently getting a fair retrial.

The judge added that he wasn’t guaranteeing how long the evidentiary hearings will last, warning Sanders that he “wouldn’t hesitate to cut you off when I’ve had enough…”

“There is too much water under the bridge and I have to find out what happened, why it happened,” Goldstein said. “I want to have a record when I make this decision.”

Sanders responded that “the past never ended,” alleging that DA Spitzer failed to fully investigate the accusations against Baytieh or to inform defense attorneys about law enforcement officers engaged in the illegal use of jailhouse informants.

Spitzer has previously responded that he commissioned an independent probe of Baytieh’s conduct and ended up terminating him. Baytieh’s supporters argue he was actually fired for acting as a whistleblower regarding racially charged comments Spitzer made in an unrelated double-murder case. Baytieh was elected to the bench after his firing, drawing substantial backing from other judges.

Hunt, the prosecutor, acknowledged that there was “no question” the DA office had been in possession of information that should have been turned over to Smith’s attorneys prior to his original trial. But the prosecutor argued that he couldn’t read the minds of those who didn’t turn over the evidence or speculate on why they failed to do so. Throwing out the charges against Smith based on such “speculation” and “assumptions” wouldn’t be fair, the prosecutor told the judge.

“A dismissal would be wholly inappropriate,” Hunt added.

In past cases, Sanders used the evidentiary hearing process to unmask the secret network of in-custody informants. That led to a federal investigation in which the illegal use of informants was confirmed. The informant scandal resulted in the OC DA’s office being removed from the case against mass killer Scott Dekraai — also a Sanders client — and Dekraai receiving multiple life terms in prison rather than a death sentence.

In the Smith case, Sanders alleges that Baytieh failed to disclose evidence that multiple informants were used in order to obtain incriminating statements from Smith, rather than the single informant previously disclosed to the defense. He also alleges that more than a dozen other pieces of evidence that could have been helpful to Smith’s defense were also withheld by prosecutors.

It wasn’t initially clear if Baytieh will be required to testify during the evidentiary hearing. Testimony in the hearing will begin on Tuesday in San Diego, but will likely be scheduled sporadically after that, to accommodate the judge’s court schedule and witness availability.

Source: Orange County Register