A former top Orange County prosecutor, now a judge, testified Monday that he didn’t know why evidence in a 2010 murder case was not turned over to defense attorneys as required.
Orange County Superior Court Judge Ebrahim Baytieh made a rare appearance on the witness stand during a hearing on whether he illegally withheld evidence while prosecuting the case 14 years ago against defendant Paul Gentile Smith.
“I don’t know why it happened,” Baytieh testified under questioning by Orange County Assistant Public Defender Scott Sanders, who for years has pressed to hold the former prosecutor accountable for his actions in the case.
Smith is facing a retrial on charges that he fatally stabbed his boyhood friend and sometimes marijuana dealer in Sunset Beach in 1988. Smith’s conviction was overturned in 2021 amid allegations that his civil rights were violated when evidence was held about the use of jailhouse informants. Three informants were used to pry incriminating evidence from Smith, but only one informant was disclosed to the defense.
Sanders is attempting to get the charges dismissed against Smith on grounds of “outrageous government conduct.” The case is being held before San Diego County Superior Court Judge Daniel Goldstein to avoid a conflict because Baytieh sits on the Orange County bench.
Baytieh testified that he didn’t receive evidence that multiple jailhouse informants — not just one — were used to build a murder case against Smith years after the trial. He said he turned over the evidence to Smith’s defense lawyers as soon as he found out.
Baytieh also said he regrets using a jailhouse informant in the first place, triggering the need to disclose information on the other informants and thus creating the whole issue.
“I think the biggest mistake I made now … was calling (Art) Palacios to testify,” Baytieh said.
Baytieh testified that in 2016, with the release of a special log kept by sheriff’s deputies, he first learned that three jailhouse informants asked to be put in the same dayroom with Smith so they could get incriminating information from him. He said he turned that evidence over to Smith’s defense team.
Baytieh also said that it was not until he was questioned in 2019 by federal investigators for a Department of Justice report that he learned of an interview with an informant that outlined a plan for multiple informants to work on Smith. Baytieh said he then obtained recordings of that interview and disclosed them to the defense.
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Sheriff’s officials have said, however, the recordings were properly booked into evidence and, therefore, were available to be disclosed years earlier.
Baytieh testified he didn’t investigate on his own why the information didn’t get turned over in a timely manner, partly because sheriff’s detectives had obtained lawyers and refused to talk to the district attorney’s office.
Baytieh’s testimony is the latest chapter in the scandal over Orange County’s secret use of jailhouse informants, which resulted in a blistering rebuke in 2022 by the Department of Justice.
This is a developing story. Please check back for updates.