OC Judge Defends Against Allegations Of Cover-Up In Snitch Scandal

SANTA ANA, CA — Orange County Superior Court Judge Ebrahim Baytieh defended his record as a prosecutor Monday in an evidentiary hearing into allegations he illegally used jailhouse snitches to win a murder conviction and spent years covering it up.

Much of Baytieh's testimony centered around a recorded interview with jailhouse informant Jeffrey Platt, who claimed he heard Paul Gentile Smith, 64, confess to killing 29-year-old Robert Haugen in Sunset Beach on Oct. 24, 1988.

Smith's attorney, Scott Sanders of the Orange County Public Defender's Office, is working to get the case against Smith dismissed or some other sanction related to allegations of outrageous governmental conduct.

The case was reassigned before San Diego County Superior Court Judge Daniel B. Goldstein because of the claims against Baytieh, who won election to his post after Orange County District Attorney Todd Spitzer fired him for failing to turn over evidence to the defense in Smith's first trial, which resulted in a conviction in 2010 for murder and special circumstance allegations of torture and robbery.

After the conviction, Smith pleaded guilty to soliciting an attack on the lead investigator in the case, sheriff's investigator Raymond Wert, but those charges were later dismissed by prosecutors after they agreed to a retrial of Smith's murder case in 2021.

At issue is whether law enforcement directed Smith's fellow inmates to question him after he was charged and represented by an attorney, which is what lawyers call a Massiah violation. It is legal, and called a Perkins Operation, when investigators are pursuing an ongoing crime such as what Smith was accused of doing in soliciting the killing of the lead sheriff's investigator on the case, Wert.

Sanders also spent a good deal of his questioning on Baytieh's reaction to the uncovering of a sheriff's log in a special handling unit for jailhouse snitches in 2016.

Baytieh acknowledged that a note from investigators about arranging for inmates to be with Smith in a day room so they could question him was concerning.

"It did raise concerns, absolutely," Baytieh said. "But there were ongoing crimes he committed or were trying to commit that weren't charged yet, so that didn't trigger Massiah obligations."

Baytieh also testified, "Mr. Smith was trying to kill four or five people."

The judge repeatedly referred to his "frame of mind" at the time in 2009-10 when he was prosecuting Smith, noting he did not know about the sheriff's log at the time.

"I'm honestly telling you my frame of mind," he said. "My frame of mind at that time was about an ongoing crime."

Baytieh said Smith was allegedly attempting to hire others to kill witnesses, and asking what would happen if a witness before the grand jury died before the trial.

When Sanders asked Baytieh how much investigators told him about the use of snitches in the trial, the prosecutor said. "Everything the investigator told me was in the discovery I provided to the defense in 2009."

When Baytieh learned more about the use of the informants when the special handling log was uncovered in another of Sanders' cases, the judge said he acted quickly to turn that over to the defense.

Sanders uncovered the informant scandal as he represented Scott Dekraai, the worst mass killer in the county's history, who ended up winning a motion to remove the death penalty as an option and the recusal of the Orange County District Attorney's Office from his case. Dekraai pleaded guilty and is serving life in prison without parole.

When it became apparent during the evidentiary hearings for Dekraai that sheriff's deputies were ignorant of laws regarding the handling of informants, Baytieh was tasked with training law enforcement and prosecutors. Baytieh also became head of the special prosecutions unit, which focused in part on government corruption.

Baytieh said an internal investigation in the District Attorney's Office was handling the sheriff's log evidence, so he did not get involved in that.

"It was completely out of my chain of command," he said. "It was their job to go through it."

Goldstein asked Baytieh if then-District Attorney Tony Rackauckas spoke with him about the Smith case after the sheriff's log surfaced. Baytieh said he was in two or three meetings with Rackauckas about it.

Baytieh also detailed some of the complications related to seeking evidence related to Smith from the log, which was a sort of free-wheeling diary of how deputies handled the snitches. It was under a protective order from a judge.

Baytieh said he wanted to talk to the deputies named in the log, but they were represented by lawyers at that point and they did not wish to give a statement to prosecutors.

"That was the end of me thinking about it," Baytieh said.

It wasn't until 2019 that Baytieh learned about the recorded interview with Platt when he was being questioned by federal prosecutors investigating the informant scandal. When he contacted the Sheriff's Department officials could not initially find it, he said.

"I said I saw it," so it had to exist, Baytieh testified.

The recording was eventually found in a confidential informant folder, Baytieh said. The judge said he hasn't done anything else on the case since 2019.

Baytieh said he doesn't know why the recorded interview didn't find its way to defense attorneys for Smith.

"I don't know why it happened," he said. "Did it trigger worry in other cases? No, sir."

Goldstein also pressed Baytieh on how much interest he took in the forensic evidence in the case.

"I didn't feel like I needed to physically look at the evidence," Baytieh said. "I never felt I needed to see it myself... in this case because it was a DNA case. I just wanted to make sure it was still there."

When Goldstein asked him if he wanted to see the victim's clothing, Baytieh responded, "The victim was set on fire."

Most of the evidence was DNA swabs, he said.

Goldstein also asked Baytieh if had concerns that Wert, who was a potential victim in the case, was also the lead investigator.

"I did think about it," Baytieh said. "The defense knew about it... Nothing gave me pause on his ability to continue to do the case... My concentration was just on (the) 1988 (murder)."

The solicitation for an attack on Wert was severed from the murder trial, Baytieh said.

Baytieh said he did not favor using informants generally.

When Platt didn't pan out as an informant, investigators turned to Arthur Palacios, another veteran informant. Sanders asked Baytieh about Palacios being rejected as an informant in another case in 2006, but Baytieh said it had "nothing to do with credibility," but the District Attorney's Office had a policy against using anyone with domestic violence or DUI cases.

"There was no indication he was not credible," Baytieh said.

Palacios had a deal but when he didn't turn himself in when he was supposed to while out of custody it was yanked. Baytieh denied Sanders' suggestion that Palacios was offered money instead for his participation in the Smith case.

Palacios' "first contact with Smith was not at the request of law enforcement," Baytieh testified. "If I felt he contacted him... that would have triggered a potential Massiah violation, so what I'm saying is that at that time all the information I had led me to conclude Palacios did it on his own initially and then contacted the police to say there is information I have."

But, Baytieh acknowledged, Platt's note to his handlers contracted that.

Baytieh did say he was part of a District Attorney's Office process of determining which law enforcement officers would be put on a so-called Brady List that would be sent to defense attorneys to alert them of investigators accused of any wrongdoing. But Rackauckas overturned the recommendation in a lengthy memo with legal analysis that Baytieh said he disagreed with.

"Mr. Rackauckas made the decision after the election before Mr. (Todd) Spitzer took over in December 2018," Baytieh said. "I was part of the trnasition team and when Mr. Spitzer took over I briefed him on it and informed him Mr. Rackauckas had overruled the recommendation from special prosecutions. He made the decision to refer it to the Office of Independent Review."

The head of that office, which works for the county board of supervisors and was later dumped, reported back that he agreed with Rackauckas, Baytieh said. That prompted Spitzer to add the officers, with the exception of one, to the Brady List, Baytieh said.

Baytieh will continue testifying Tuesday.

By PAUL ANDERSON, City News Service