By David M. Greenwald
Orange County, CA – Last month the Orange County DA Todd Spitzer and his office agreed to retry a 2010 high profile conviction of Paul Gentile Smith for a Sunset Beach murder based on the conduct of Ebrahim Baytieh, a high-ranking DA executive.
In a motion filed on September 10 by Assistant Public Defender Scott Sanders, he alleges that the court has “a bias toward Senior Assistant District Attorney Ebrahim Baytieh,” and that “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
As the result of the motion, Judge Gregg Prickett agreed to voluntarily step aside and disqualify himself.
In a brief written ruling, Judge Prickett wrote, “Pursuant to Code of Civil Procedure section 170.1 … where the ‘judge believes his or her recusal would further the interests of justice’ and where ‘a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial’ based on the representations of defense counsel … this court voluntarily disqualifies itself.”
It was Baytieh who brought charges against Smith back in 2009 and ultimately obtained the murder conviction with a finding of special circumstances for torture and use of a dangerous and deadly weapon.
As reported last month, rather than having Baytieh and others testify about the withholding of evidence, the DA’s office asked Judge Donahue to simply throw out the conviction and hold a new trial.
In a statement, the DA’s office acknowledged that the office had a duty to turn over this evidence to the defense, yet “that was not done until nearly nine years after trial.
“It is indisputable that an interview of an informant related to this defendant existed and was in the possession of the Orange County Sheriff’s Department. It is also indisputable that the prosecutor had a duty to discover that to the defense,” the DA wrote.
Following the granting of a new trial, the case was ultimately assigned to Judge Prickett.
Sanders points out: “Judge Prickett endorsed Baytieh’s announced candidacy for Orange County Superior Court Judge in or before March 2021. Judge Prickett’s name has remained on the list of endorsements through the date of this filing.”
In his motion, Sanders writes, “Defendant will pursue litigation in which the decade-long concealment of evidence by Baytieh and his prosecution team will be the focus.” He adds, “Defendant also anticipates it will be necessary to file a motion to compel discovery seeking a significant quantity of items related to Baytieh.”
Sanders wrote that he believes the endorsement of Baytieh “demonstrates a bias in favor of Baytieh and creates an appearance of bias, and the endorsing judge should not thereafter make determinations about 1) whether the prosecution will be required to provide additional discovery relevant to Baytieh’s misconduct, 2) whether Defendant can present evidence of Baytieh’s misconduct at evidentiary hearings and trial, 3) whether defendant can be called as a witness at hearings and trials and the scope of that testimony, 4) whether Baytieh’s conduct supports recusal of the OCDA, and 5) whether he and his prosecution team committed outrageous governmental misconduct that warrants dismissal or another remedy.”
The charges by Sanders against Baytieh are quite serious, alleging “brazenly unlawful and unethical actions demonstrating an unrelenting win-at-all costs effort led by Baytieh that rivals any in this County’s history.”
Baytieh, Sanders adds, “led a coordinated prosecution team effort to conceal evidence from Defendant, while deceiving his counsel, fact-finders, and courts through an ever-expanding output of misconduct.”
This involves the concealment of Orange County Sheriff Department (OCSD) involvement with informant Jeffrey Platt.
Sanders believes that Baytieh attempted to mislead the defendant and the Grand Jury about his knowledge that Platt was an informant who had provided statements during his 2009 interview describing how informant members of the dayroom group questioned Smith in violation of Massiah v. U.S.
“Baytieh concealed for more than a decade a recorded interview with informant Jeffrey Platt,” Sanders argued, noting that Platt at this point admitted he and two others were intentionally placed in a dayroom group “where they then repeatedly questioned the Defendant about his crime until he made incriminatory statements.”
During the same proceedings, “Baytieh called another member of the same dayroom group, Arthur Palacios, who admitted to a long history of informant work and that he hoped for a benefit in return for his efforts on this case, but claimed to have coincidentally been located at the right place in the jail at the right time when a talkative fellow inmate (Smith) began speaking about his crime.”
Sanders adds, “Baytieh introduced Defendant’s statements even though he knew from Platt’s interview that they had been obtained as a result of repeated questioning in violation of Massiah.”
Further, Sanders charges, “Baytieh misled the Grand Jury by eliciting testimony from Palacios designed to falsely portray Platt as an authentic co-conspirator with the Defendant in the alleged effort to kill or assault Wert, even though he knew that Platt was an informant.”
Baytieh, as far back as 2015, denied these allegations.
As reported by the Orange County Register, Baytieh called the allegations “baloney.”
“The notion that there is any effort on anybody’s part, at any level, to intentionally hide evidence … is from our perspective absolutely false,” Baytieh said at that time.
But the denials by Baytieh, going back to 2015, are now belied by the DA’s office moving for a new trial and the recusal of the judge in this case.
When the Vanguard spoke to Sanders in August, he noted “they don’t give special circumstance murder defendants new trials. That doesn’t happen unless they know that the situation is really dire.”
While they definitely wanted a new trial—and ultimately couldn’t turn it down when the DA conceded it—they really wanted to put witnesses on the stand.
“We wanted everybody to testify—that’s what we were preparing for,” he said.
Hiding of evidence is at the center of the informant scandal. That’s what makes this overall informant scandal so troubling to the DA’s office.
Sanders said, “This is always from my perspective the single most compelling informant case that I had studied both in terms of the district attorney’s role and the sheriff’s role.”
The fact that it’s Baytieh implicated here should not be lost on people.
“It’s the culture (of the office),” Sanders said, pointing out that Baytieh is the guy “who’s running the Brady Unit… He’s the guy who trains everyone.”
In a 2020 OCDA report the agency finally admitted an allegation that had been continually raised by Sanders. For years the prosecutorial agency hid the most significant revelation of the scandal: Years of notes written by the deputies who ran the informant program. Baytieh was the prosecutor with primary responsibility during that time period for making sure evidence from that log which showed deputies committed misconduct would be disclosed when those deputies took the witness stand.
Neither the report nor the agency has explained how this failure to disclose happened or its version of who was responsible.
“We’re just touching the surface,” he said. “This is an enormous problem.”