The attorney for accused killer Paul Gentile Smith doubled down Monday on his call that charges be dropped after an inspection found more evidence than initially reported had been withheld from the defense during Smith’s 2010 trial.
Smith’s conviction was overturned in 2021 because some transcripts and recorded interviews had not been turned over to the defense. A hearing is underway in San Diego to determine whether he can receive a fair retrial as attorneys continue to find evidence that had not been disclosed, despite assurances everything had been turned over.
In a motion filed Monday, July 22, Orange County Assistant Public Defender Scott Sanders said an inspection at the Orange County Sheriff’s Department produced even more documents that had been “concealed” as well as indications that additional items were missing.
“The inspections confirmed, even 14 years after the conviction, three years after a new trial was ordered and two months into evidentiary hearings, there is no end in sight to the concealment and deception by the prosecution team,” Sanders wrote. “There is simply no rational basis for concluding the defendant will ever receive all favorable and material evidence.”
During two visits to the Sheriff’s Department, defense attorneys and prosecutors examined the physical evidence files. The defense found seven additional investigative reports and transcripts withheld at trial, bringing to 18 the number of documents that were not turned over, the motion said. The evidence mostly dealt with the misuse of jailhouse informants to extract information from the incarcerated Smith, who could not legally be questioned by agents of the law without his attorney present.
Smith was accused in the cold-case killing of his childhood friend, who was stabbed to death and torched in Sunset Beach in 1988.
The case was prosecuted by then Senior Deputy District Attorney Ebrahim Baytieh, who was later fired for failing to turn over evidence. He has since been elected as an Orange County Superior Court judge, prompting the Smith case to be transferred to San Diego County.
Baytieh testified in the ongoing retrial hearing that he was not aware until 2019 of the existence of the evidence — transcripts and recorded interviews showing a scheme to violate Smith’s rights through the use of multiple informants.
Sanders said in his motion that the undisclosed evidence paved the way for the inadmissible testimony by an informant against Smith.
The recent inspections uncovered two handwritten letters from an informant that conflict with the testimony of two former sheriff’s investigators during the San Diego hearings. The letters indicate the investigators were aware of the illegal plan by jail informants to attempt to get Smith to incriminate himself, Sanders said.
Also found were reports that Sanders said were written to hide the involvement of a problematic informant from the defense.
Additionally, defense attorneys found a report on a secret Sheriff’s Department investigation into whether one of its homicide detectives hid evidence from Baytieh. Sanders wrote that the probe “added to the OCSD’s confidence” that the evidence was indeed shared with Baytieh.
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But, Sanders added, the concealment of the probe from the Orange County District Attorney’s Office “suggests an investigative agency in conflict with the prosecutorial agency. The investigation, analysis and findings were clearly relevant to ongoing litigation.”
Sanders’ motion also indicates that evidence concealed from the defense was shared with television producers for crime documentaries.
Also on Monday, testimony from former sheriff’s investigator Eric Hatch conflicted with testimony from Baytieh. Baytieh had told the court that he contacted Hatch in 2019 to secure a copy of the withheld evidence, which Hatch could not find in the evidence records but located in an confidential informant file.
Hatch testified he did not remember finding the file and giving it to Baytieh.