Making the matter even more intriguing is the involvement of prominent prosecutor Brahim Baytieth, who has remained in the office as a high-ranking DA executive that was put in charge of making sure that evidence was properly disclosed to defendants—now he himself is being accused of withholding evidence that sheriff investigators had unlawfully used jail informants in the case.
Moreover, rather than having Baytieth and others testify about the withholding of evidence, the DA’s office asked Judge Donahue to simply throw out the conviction and hold a new trial.
But as Orange County Assistant Public Defender Scott Sanders told the Vanguard this week, that may not be enough to save them because somehow they will have to put on evidence in a new jury trial.
The DA’s office did not immediately respond to a Vanguard request for a response, though in a statement reported in the media, the DA acknowledged that the office had a duty to turn over this evidence to the defense, yet “that was not done until nearly nine years after trial.
“It is indisputable that an interview of an informant related to this defendant existed and was in the possession of the Orange County Sheriff’s Department. It is also indisputable that the prosecutor had a duty to discover that to the defense,” he added.
“As a result of that failure to provide proper discovery I was forced to make the very difficult decision to concede that a convicted murderer sentenced to life in prison without the possibility of parole should be granted a new trial,” the DA wrote.
But Sanders, in an interview with the Vanguard, pointed out that Baytieth remains not only on staff but still in such a pivotal position, overseeing the disclosure of evidence.
He went further, calling Baytieth “the denier-in-chief of the informant scandal,” and said that “he’s the person that the district attorney’s office put out there to say it was untrue.”
Indeed, as Sanders pointed out, Baytieth back in 2015, as reported by the Orange County Register, called it “baloney.”
“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 that time.
Sanders pointed out that they found out this was the case as far back as 2017.
“(We) put everybody there on alert that we knew what had happened and still he kept his position in the new administration,” he said.
Despite this mounting evidence against him, he has been in the role of overseeing the disclosure of evidence since at least 2016, according to Sanders.
In 2009, during the trial, they presented a single informant, Art Palacios, as being in the right place at the right time.
“That’s what they always do. That’s the informant scandal. They’re always just lucky—I call it coincidental contact,” Sanders explained.
But the reality is was that there were actually three informants in the snitch tank, and they’re intentionally housed with the defendant.
Sanders explained about the interview with Platt, who is the informant that emerges in this case, that “it’s literally the worst recording you could ever imagine getting if you’re law enforcement, because he’s talking about, you know, over a week to two weeks, beating him down to confess, and he’s talking about all three of them doing it together.”
He’s making false claims to Smith, he is doing everything he can to gain his confidence.
Sanders said, “He tells them all of this—he tells them all of this in 2009.”
As he explained, “In 2009, when they heard this interview, it should have been over in terms of informants’ statements.”
Sanders explained that all of this was known to his team in 2017—it was known to his team that the prosecution basically pulled the wool over the eyes of Smith’s attorney. And despite this evidence that emerged now four years ago, the DA’s office, including during the last few years under Spitzer, has simply chosen not to address this, according to Sanders.
Sanders, in illustrating how bad a problem this is, pointed out that “they don’t give special circumstance murder defendants new trials. That doesn’t happen unless they know that the situation is really dire.”
While they definitely wanted a new trial—and ultimately couldn’t turn it down when the DA conceded it—they really wanted to put witnesses on the stand.
“We wanted everybody to testify—that’s what we were preparing for,” he said.
How they actually try the case at this point is going to be interesting. Reportedly, the lead detective now is going to take the Fifth.
As Sanders pointed out, “You’re not going to avoid the questions. You’re the lead detective and you covered up evidence for a decade.
“They wanted (the new trial) granted, so they could avoid the hearing in this moment,” Sanders explained. “Now they have to deal with what they do next.”
That’s what makes this overall informant scandal so troubling to the DA’s office.
Sanders said, “This is always from my perspective the single most compelling, informant case that I had studied both in terms of the district attorney’s role and the sheriff’s role.”
The fact that it’s Baytieth implicated here should not be lost on people.
“It’s the culture (of the office),” Sanders said, pointing out that Baytieth is the guy “who’s running the Brady Unit… He’s the guy who trains everyone.”
In a 2020 OCDA report the agency finally admitted an allegation that had been continually raised by Sanders. For years the prosecutorial agency hid the most significant revelation of the scandal: Years of notes written by the deputies who ran the informant program. Baytieh was the prosecutor with primary responsibility during that time period for making sure evidence from that log which showed deputies committed misconduct would be disclosed when those deputies took the witness stand.
Neither the report nor the agency has explained how this failure to disclose happened or its version of who was responsible.
“We’re just touching the surface,” he said. “This is an enormous problem.”
