Judge calls former prosecutor's actions 'reprehensible' in jailhouse informant case

Orange County Superior Court Judge Ebrahim Baytieh, who was fired by current District Attorney Todd Spitzer for his handling of a murder case with torture under a previous DA and was then elected to the bench, might be called as a witness in the defendant's retrial.

"That's a distinct possibility," Assistant Public Defender Scott Sanders told the Daily Journal Wednesday, discussing how jurors might react to a jurist as a witness and the evidence he will be able to present about misconduct.

Sanders spoke a day after San Diego County Superior Court Judge Daniel Goldstein ruled that Baytieh was not truthful during the prosecution of the murder case as well as at a special hearing looking into what was called the "jailhouse informant scandal" in Orange County in 2009-2010. Goldstein called Baytieh's actions in the case "reprehensible."

DA Spitzer said in a statement that Goldstein's decision was appropriate. "Judge Goldstein is required to report this misconduct to the State Bar and to Judicial Council," Spitzer noted.

"Judicial officers are not permitted to comment on pending matters," Baytieh's attorney, Paul Meyer of Costa Mesa, wrote in an email responding to questions sent to the judge about his reaction to Goldstein's and Spitzer's comments and the possibility of being called as a witness.

The actions by Orange County prosecutors and sheriff's deputies placing informants in jail cells with accused defendants without letting defense attorneys know -- and subsequently seeking to cover this up, according to a Department of Justice investigation -- has led to changes in the outcome of 58 cases since 2014, Sanders said. All were positive changes for the defendants such as new trials or reduced sentences, he said.

He added that there might be well over 100 more, but funds are not available to review all of them. He said Baytieh's cases as a homicide prosecutor should be reviewed.

As punishment for Baytieh's behavior, Goldstein said that in the retrial of Paul Smith -- accused of torturing and stabbing to death his boyhood friend and marijuana supplier -- the defendant will not face a sentence of life without parole. He can be sentenced to life in prison if he is convicted again.

The retrial is to begin March 24 in Orange County with a local jury, and with Goldstein on the bench.

Senior Deputy District Attorney Seton Hunt, who is currently prosecuting Orange County Judge Jeffrey Ferguson on charges related to the murder of his wife, has been handling the Smith case.

Goldstein complimented Seton and the DA's office headed by Spitzer for their "dedication to search for the truth" regarding the claims of misconduct by Baytieh.

Throughout the years, "Baytieh repeatedly insisted that he had no knowledge Platt was an informant," Goldstein wrote in a 26-page order denying Sanders' motion to dismiss and striking the special circumstance allegation of torture.

"However, he personally signed the warrant affidavit where he affirmed that he reviewed the warrant for sufficiency. That warrant affidavit explicitly identified Platt as informant number 815," Goldstein continued. "This leaves only two possibilities: either Baytieh did not actually review the warrant affidavit - in direct contradiction to his own signature; or he knew and deliberately concealed his knowledge of Platt in these and other proceedings.

"In either situation," Goldstein concluded, "Baytieh, a sworn prosecutor, made a falsified statement to the court."

Spitzer said in his statement after the decision: "The violation of a defendant's constitutional rights must be punished and, after a careful examination of the evidence and the veracity of the witnesses, Judge Goldstein chose the appropriate remedy as a result of the outrageous government misconduct Baytieh committed under the [former DA Tony] Rackauckas administration."

Sanders said the actions around Smith's trial in 2009 for the murder of Robert Haugen "was really the worst case of this informant scandal." He said three informants were placed in the jail to talk to Smith but the evidence from only one was presented. All the evidence related to the other two, which Sanders said was helpful to the defense, was hidden. "During the course of everything we uncovered 23 items of hidden evidence. So, it was an extraordinary amount of concealment ... case-specific concealment ... even in this major informant scandal."

Smith was convicted of murdering, torturing Haugen, and setting his body on fire in 2010. Orange County Judge Patrick Donohue overturned the conviction in 2021 and ordered a retrial because of the claims that the prosecution concealed evidence, and a lead investigator refused to testify.

Meanwhile, Baytieh, after being fired by Spitzer, was elected judge on June 7, 2022, and took the bench in January 2023. He currently sits on a probate panel, according to the court's website.

Smith's retrial was moved to San Diego County to avoid a conflict of interest.

Spitzer pointed out that his office "conceded in 2021 the defendant should be given a new trial as a result of the prior prosecutorial team's failure to disclose discovery to the defense and agreed to not use of any evidence obtained through the jailhouse informant program in 2009-2010. We will continue to pursue justice for the murder of Robert Haugen while ensuring the constitutional rights of all continue to be safeguarded."

It was Sanders who brought the jailhouse informant actions to light in his defense of Scott Dekraai, who shot nine people, killing eight, at a beauty salon where his ex-wife worked in 2011. Dekraai had confessed but informants were placed in his cell to obtain comments that would ensure he got the death penalty.

Then-Orange County Judge Thomas Goethals -- now a 4th District Court of Appeal justice -- made a ruling similar to Goldstein's. Goethals ruled Dekraai could not be sentenced to death because of the prosecution's actions. He was sentenced to eight life terms without possibility of parole and one term of seven years to life for attempted murder.

Asked about the effect on the public's view of the judiciary from the Baytieh case, Sanders said, "In Goldstein you have, I think, one of the great examples of a judge doing exactly what you're supposed to do, kind of getting to the bottom of things, being courageous, following the facts. It isn't that we got everything we wanted. But he made a courageous ruling, a hard-hitting ruling with a very big outcome.

Orange County District Attorney Todd Spitzer's full statement can be found here.