The overturning of a murder conviction this week is unleashing serious allegations of misconduct against one of the most senior prosecutors in Orange County.
It centers on the 2010 conviction of Paul Gentile Smith for a Sunset Beach murder, which Superior Court Judge Patrick Donohue tossed the conviction after District Attorney Todd Spitzer acknowledged the prosecutor failed to turn over informant evidence that legally had to be disclosed to the defense.
The DA’s office requested the move after public defenders Scott Sanders and Sara Ross discovered what they allege was illegal withholding of evidence that sheriff investigators had unlawfully used jail informants in the case.
The prosecutor in the case is Brahim Baytieh, a high-ranking DA executive Spitzer kept in charge of making sure evidence is properly disclosed to defendants and deciding whether to prosecute police officers.
Baytieh, who is running to become an OC Superior Court judge in next year’s election, didn’t return phone and email messages asking about the claims made against him.
He’s the highest-ranking prosecutor to be accused of wrongdoing in OC’s jailhouse snitch scandal, which so far has resulted in the overturning of at least half a dozen convictions for murder and other serious crimes.
After Sanders and Ross asked to put Baytieh and the deputies and sheriff investigators on the witness stand to question them about withholding evidence, the DA’s office asked last week to toss the murder conviction altogether and hold a brand new trial on the murder, which happened in 1988.
Sheriff’s deputies involved in the case were refusing to testify, asserting their Fifth Amendment rights against self-incrimination, according to the DA’s office.
Donahue granted the request to toss the conviction and hold a new trial.
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The DA’s office had a duty to turn over the informant evidence to the defense, yet “that was not done until nearly nine years after trial,” Spitzer said in a recent statement, noting the case was prosecuted before Spitzer took office in 2019.
“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,” he added.
“As a result of that failure to provide proper discovery I was forced to make the very difficult decision to concede that a convicted murderer sentenced to life in prison without the possibility of parole should be granted a new trial,” the DA wrote.
Spitzer is hiring an outside firm to investigate how the DA’s office handled the Smith case, DA spokeswoman Kimberly Edds said this week.
Baytieh wrote letters to Smith’s defense lawyers in 2016 and 2019 detailing how he was promptly disclosing evidence he just learned about informants in the case.
Yet Sanders says it’s clear Baytieh and the entire prosecution team knew back in 2009 that jail witnesses were informants, yet misled a grand jury about it and failed to disclose it to the defense until years after the 2010 conviction.
A 2009 interview of one of the jail witnesses, which wasn’t disclosed to defense attorneys until 2019, showed the illegal scheme that was kept from jurors and the defense, according to Sanders.
“It laid out a clear violation of Constitutional rights, that if disclosed, would have stopped the prosecutor from introducing evidence from any of the three informants that were questioning the defendant illegally,” Sanders said in a statement.
“They made the recording disappear and then had [an informant] testify, as he omitted all of the illegal questioning of the defendant,” he continued.
Sanders said it’s clear Baytieh misled a grand jury about it in 2010.
“Mr. Baytieh has an enormous problem that he can never explain away,” Sanders wrote in the statement.
“At the grand jury proceedings in 2010 he presented [a jail witness] as working with the defendant to carry out an assault on [sheriff] Investigator [Raymond] Wert. But in 2016 when we studied the case we realized that [the witness] was never prosecuted nor even investigated for that crime,” he added.
He said their failure to prosecute someone who allegedly threatened an officer reveals he was actually an informant.
“[The witness] was left on the streets to apparently kill a police officer. Of course, the true alternative is that [he] was an informant – and Baytieh knew this from day one.”
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Spitzer didn’t return a phone message seeking an interview, though his spokesperson provided his previous public statements about the overturned conviction.
“We try our cases in a court of law and not in the press,” DA spokeswoman Kimberly Edds wrote in an emailed statement responding to Voice of OC’s request for comment.
Baytieh took on a high-profile role in 2015 defending the DA’s office after a judge found prosecutors had systematically misused informants in what became known as the “snitch scandal.”
Then-Superior Court Judge Thomas Goethals, in a March 2015 ruling, kicked the entire DA’s office off the 2011 Seal Beach mass shooting case after finding sheriff’s deputies “either intentionally lied or willfully withheld material evidence from [the] court.”
At a highly-attended public debate later that year, Baytieh said no one at the DA’s office intentionally hid evidence.
“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 the October 2015 debate at Chapman University’s law school.
However, an appellate court later found the DA’s office had participated in “intentional or negligent” withholding of information they were required to provide defendants.
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Lawrence Rosenthal, a former federal prosecutor who teaches law at Chapman University, said the Orange County District Attorney’s office hasn’t been as proactive as other counties’ DAs in finding and correcting wrongful convictions.
“The Orange County District Attorney has never undertaken the kind of proactive review necessary to get these kinds of convictions overturned. Instead, it’s really been left to the public defender’s office to drag exculpatory evidence out of the district attorney’s office, because they haven’t been producing it,” Rosenthal said.
Instead, Rosenthal said, Spitzer kept Baytieh in a high-level position, despite being involved with the controversy.
At a victims’ rally this year, Spitzer praised Baytieh, describing him as one of “the best prosecutors in the entire nation.”
He told the OC Register he kept Baytieh in his high-ranking position because he respects his guidance.
“I kept Brahim because Brahim’s a North Star, he’s someone you look up to to guide you. He’s someone I listen to a lot,” Spitzer told the OC Register for an article published in April.
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The sheriff’s deputies union says sheriff investigators did their job by booking the 2009 interview, and that the responsibility was on the DA’s office to turn it over to the defense.
Sheriff Don Barnes said his department has fixed the informant problems that were identified several years ago, and has safeguards in place to make sure violations don’t occur again.
“I trust the criminal justice system has processes in place to address this matter appropriately, and have confidence that people will be held accountable for their criminal acts,” Barnes said in a statement about the Smith case.
Rosenthal said there needs to be accountability.
“Mistakes happen. But you can’t prevent them in the future if you don’t hold people accountable,” he said. “Prosecutors are very big on accountability. Go to any sentencing and you will hear the prosecutor claim that the defendant should be held accountable for his conduct.”
The same standard, he said, should apply to prosecutors.
“Same thing applies to prosecutors. If they have engaged in professional misconduct, you can’t expect it to stop if no one is held accountable. And that is Mr. Spitzer’s responsibility.”
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By requesting a new trial, the DA’s office may be blocking Sanders and Ross’ ability to question Baytieh and sheriff staff in court about the alleged misconduct.
“It may be that the reason that the prosecutors agreed to a new trial is because a hearing at which Mr. Baytieh and the sheriff’s deputies would [testify] would cause more embarrassment for them,” Rosenthal said.
“And one has to worry that what’s driving prosecutorial decisions here isn’t the Constitution or the law, but it’s the political interests of the current district attorney.”
Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.