Orange County’s District Attorney’s office continues to be plagued by mounting allegations that local prosecutors don’t play by the rules.
This week, the scandal shook the very core of the top prosecutor’s inner circle with Spitzer firing a top assistant he once called his ethical North Star, raising questions himself publicly about ongoing cheating on prosecutions and whether Spitzer’s own department has fully cooperated with an ongoing Department of Justice probe.
It all stems from a 2010 murder conviction when Brahim Baytieh reportedly withheld evidence from defense attorneys in the Paul Gentile Smith murder case, which eventually led to a new trial.
“This decision was as a result of allegations that a prosecutor failed under the prior administration to turn over information about an informant to the defense,” Spitzer said in a statement.
Voice of OC County Reporter Nick Gerda reported on those allegations last August, noting the controversy was first discovered by public defenders Scott Sanders and Sara Ross.
The public defenders accused Spitzer’s main executive prosecutor in charge of ensuring evidence is properly disclosed, Baytieh, to himself failing to disclose evidence. And recently, a court backed them up.
I called Spitzer’s spokesperson Kimberly Edds on Wednesday about Baytieh’s firing, which she confirmed by forwarding a statement from Spitzer – his only answer to the rationale and timing of the dismissal.
In his statement, Spitzer said he took immediate action after those disclosures came out last August.
“I immediately hired an independent law firm to investigate whether there was a failure by the prosecutor to properly turn over discovery and whether the prosecutor was truthful in all subsequent and related inquiries by the United States Department of Justice,” Spitzer said.
On Wednesday, Spitzer added, “yesterday, that independent investigation was completed. As a result of those findings, the prosecutor is no longer employed by the Orange County District Attorney’s Office.”
Yet almost immediately upon Spitzer’s firing of Baytieh on Wednesday, Orange County political and legal circles were buzzing, questioning the timing and public nature of Baytieh’s firing.
Spitzer’s spokeswoman, Edds, insisted there was no other reason behind the timing of the firing.
Yet I heard almost simultaneously from deep sources, from directly opposite perspectives connected to the DA’s office, offering the exact same description of events that they believe led to Baytieh’s public firing.
According to several anonymous sources close to the issue, during a recent meeting with prosecutors in an ongoing, high-profile criminal case in Orange County Superior Court, Spitzer uttered what some in the room considered racist statements about the defendant, statements that under a rule called Brady (after a relevant court case) should have been disclosed to the defendant’s attorney.
Sources indicate that Baytieh and at least one other prosecutor wrote memos about the issue, which are being reviewed by a Superior Court judge, who may ultimately disclose them.
Spitzer’s spokeswoman Edds dismissed the claims.
“The investigation is solely related to the Smith case. It is both a personnel issue and a litigation issue. We are working with County Counsel on this and there is no additional information available at this time,” Edds texted in response to follow up questions about the allegations coming from anonymous sources close to the department.
“The information you were provided by unnamed sources is inaccurate,” Edds wrote, adding, “Spitzer did not utter any racist statements.”
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Now you would think if anybody would be speaking up publicly about such an explosive allegation and the timing of his firing, it would be Baytieh.
This is a guy who was just publicly fired in the midst of a well-funded campaign for judge that has just about every politician and labor union in Orange County supporting him.
But he’s not.
Baytieh didn’t respond to any of my calls or emails for comment. And he also didn’t comment to the Orange County Register reporters who broke the news of his firing on Wednesday.
On Friday, a source close to the issue forwarded a statement that Baytieh emailed his supporters — a short statement that totally ignored the background of his exit from the DA’s office.
“Today was my last day as a prosecutor in the Orange County District Attorney’s Office,” Baytieh wrote.
Almost hinting that there’s something else to his exit, he notes “People who know me, including my colleagues, opposing counsel, and judicial officers, know that I always carried out my responsibilities by following the highest ethical standards. I want to thank each and every one of you who have supported me, and I want to assure you that I will continue to work hard to earn the trust you have placed in me.
I am excited and energized to continue working hard on my judicial campaign, and I will spare no effort to earn the trust and support of the voters in the upcoming election. I know this is a long journey, but with your help and support I have no doubt that I will be successful. My family and I are honored and heartened by your support and friendship. Thank you.”
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In another odd twist, Baytieh potentially could have found himself running for the same judgeship as Shawn Nelson, who was Baytieh’s superior at the DA’s office.
Nelson also has an active campaign to become an OC Superior Court judge, announcing just last month that was running for District 11, currently held by John L. Flynn III.
Before Spitzer launched his 2018 DA campaign, then-supervisor Nelson was his rival on the OC Board of Supervisors.
While Nelson initially endorsed former DA Tony Rackauckas, he eventually switched his endorsement to Spitzer.
Then, right after Spitzer’s election, Nelson – who termed out as a county supervisor – went to work for Spitzer with the title of Chief Assistant District Attorney.
The expectation was that Nelson would hang his hat at the DA’s office until he ran for judge.
Baytieh, a prosecutor since the late 1990s, rose to prominence in Orange County back in 2015 when he became the main defender of how Orange County prosecutors were handling disclosures to defense attorneys – often referred to as the informants 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.”
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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.
Despite his ties to the former Rackauckas administration that Spitzer ran against, he kept Baytieh in a high-level position, despite being involved with the controversy.
At a victims’ rally last 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.
Yet last August, questions around Baytieh’s actions in court surfaced again.
Judge Patrick Donohue tossed out a 2010 conviction of Paul Gentile Smith for a Sunset Beach murder after public defenders forced Spitzer to acknowledge to Donahue that Baytieh had failed to turn over informant evidence that had to be legally disclosed to defense attorneys – the same allegation made by OC public defenders in previous years.
At the time, Spitzer – who declined to be interviewed for this story, but forwarded a statement – said his office was commissioning a study into how the case was handled, which Spitzer said culminated on Wednesday.
“I made it unequivocally clear when I ran for Orange County District Attorney that I would not tolerate the ‘win at all costs’ mentality of the prior administration. My prosecutors will not violate the Constitution and the rights of defendants in order to get convictions,” Spitzer said in a statement.
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For once, the most visible public defender in Orange County and the District Attorney agreed on something.
When reached for comment, OC Assistant Public Defender Scott Sanders, who has been raising questions about prosecutors’ lack of disclosure on the use of jail informants over the past decade, agreed with Spitzer’s characterization of Baytieh’s conduct.
Yet Sanders said despite what prosecutors tell themselves and the public, their cheating is clear and systematic.
“We will soon be filing a motion that details the astonishing quantity of evidence that was withheld for more than a decade,” reads a statement sent by Sanders.
“The misconduct in this case is arguably the most egregious of that uncovered during the entire informant scandal–and the leader was the same person who insisted publicly there was not a ‘shred of evidence’ that any prosecutor withheld evidence,” he said.
Sanders said all of that should’ve been disclosed under the law.
“And what makes it so egregious is what was done in hopes of having the defendant die in prison without the truth ever being discovered. The law under the Supreme Court case of Brady v. Maryland required that the misconduct of the prosecution team members from this case be disclosed in every other case where those who participated in the misconduct later became witnesses,” Sanders wrote.
“Baytieh did not disclose the misconduct in any case for more than a decade, infecting those cases as well.
“We don’t think there is another case in this nation where the defense is able to establish the amount of Brady violations stemming from a single case. It is unconscionable,” Sanders wrote.
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Now, for the even trickier part.
If Spitzer is indeed right about Baytieh, Sanders notes it raises disturbing issues about all the so-called probes of the cheating scandal and whether a ton of federal prosecutors have been lied to by their fellow local prosecutors.
“Both sides now appear to be in agreement that the United States Department of Justice was misled,” Sanders wrote. “And there is every reason to believe that the incredibly important misconduct in this case was hidden from the California Attorney General and the Orange County Grand Jury, as well.”