A San Diego County Superior Court judge overseeing an evidentiary hearing alleging governmental misconduct in a Sunset Beach murder case acknowledged the wrongdoing Friday, but questioned what sort of sanction, if any, would be handed down when he makes a ruling next month.
The case against Paul Gentile Smith in the 1988 killing of 29-year-old Robert Haugen was reassigned to San Diego County Superior Court Judge Daniel B. Goldstein because the claims of governmental misconduct involve Orange County Superior Court Judge Ebrahim Baytieh when he prosecuted Smith.
Goldstein heard closing arguments in the hearing, which started at the end of April and carried on intermittently through the summer.
“At the very least there’s misconduct, there’s no way we’re leaving here thinking there wasn’t misconduct,” Goldstein said.
But the judge noted that in the case against the worst mass killer in the county’s history, Scott Dekraai, which started the informant scandal a decade ago, the charges weren’t thrown out as Smith’s attorney, Scott Sanders of the Orange County Public Defender’s Office, is requesting.
Sanders, who also represented Dekraai and has continued his digging into the informant scandal in the years since, argued Smith’s case is worse than Dekraai’s.
Thomas Goethals, who as an Orange County Superior Court judge kicked the Orange County District Attorney’s Office off the Dekraai case and later punished prosecutors by removing the death penalty, is now a justice with the Fourth District Court of Appeals, which upheld Goethals’ recusal ruling.
Goethals ruled that prosecutors violated the rights of Dekraai by illegally using informants to solicit incriminating statements. Investigators are accused of doing the same to violate Smith’s rights.
“That conduct in Dekraai was as bad if you take everything that Mr. Sanders says is true that it was as bad in Smith,” Goldstein said. “They’re equal. There’s the same thing going on… But, still, what didn’t happen in Dekraai with all that bad conduct, the judge did not dismiss the case. He found remedial actions to satisfy what he believed was the intentional conduct of the District Attorney’s Office at the time that was (Tony) Rackauckas’ regime.”
Sanders argued that the Smith prosecution is worse for a number of reasons, including the fact that Baytieh took a central public role making the case that there “wasn’t a shred of evidence” of prosecutorial misconduct in the Dekraai case and was put in charge of training law enforcement in the county on how to handle evidence and informants.
“I think this is more egregious,” Sanders said. “We had no argument (Dekraai’s prosecutor) was withholding evidence with the case itself. We had arguments they were not playing it straight.”
Baytieh should have been so shocked by the Dekraai informant scandal that he should have gone back over the Smith case to ensure the informants were used correctly in that trial, Sanders argued.
Sanders also questioned the ethics of lead Smith investigator, Ray Wert, continuing on the case when Smith was charged with soliciting to kill Wert.
Sanders also argued that many of the witnesses in the hearing lied about their recollection of what happened in the Smith case.
“They committed a lot of perjury in this courtroom,” Sanders said. “They did not tell the truth in this courtroom and that is incredibly aggravated conduct. It’s incredibly dangerous to due process. And they will never speak the truth about this. They had the opportunity and they will never do it. They decided — using the greater good theory — that keeping Paul Smith where he is is more important than following the law.”
Senior Deputy District Attorney Seton Hunt argued that Smith can still get a fair trial.
“The people’s position has been the court could agree with the conclusions of the defense on how to interpret the evidence and still conclude (dismissal) is not an appropriate remedy,” Hunt said, adding that Smith’s conviction was tossed and he won the right to a new trial.
Hunt also pointed out that Smith was allowed to withdraw his guilty plea on the solicitation to kill Wert and the charges were thrown out.
Hunt also pointed out that his office hired an outside law firm to investigate the prosecution of Smith’s case and it led to Baytieh’s firing.
At issue in Smith’s case was the use of informant Jeffrey Platt to pump the defendant for incriminating statements prosecutors could use, which is against the law when a defendant is represented by counsel. Attorneys refer to it as a Massiah violation.
Sanders has also argued that there was a withholding of evidence about the informants, which is what attorneys refer to as a Brady violation. Wert had multiple files on a computer that apparently were never meant to be shared with defense attorneys, Hunt acknowledged.
Among that evidence was a recorded jailhouse call in which Smith shared how encouraged he was that there was new evidence that pointed to another suspect in his case, Sanders said.
Sanders argued that when it became clear to investigators that Platt violated the law they turned to a new informant, Arthur Palacios, who testified against Smith in his 2010 trial. Another jailhouse informant, Paul Martin, was also placed in a part of the day room to help with the effort to solicit evidence against Smith, Sanders said.
A critical piece of evidence in the hearing was the surfacing of a 15-year-old search warrant that appeared to contradict Baytieh’s testimony that he did not know about the use of informants Platt and Martin, Goldstein said.
“He signed it and didn’t review it,” Goldstein said. “Or he reviewed it and signed it and knew about (Platt and Martin).”
Hunt said a “third option” is Baytieh reviewed the search warrant and was aware of Platt, but because of his high caseload at the time he forgot about it many years later and did not think it was important.
“He would have to be aware at the very least that there’s another informant in the case,” Hunt said. “And if you’re a DA, no question any DA would have a follow-up question about that discovery.”
The judge added, “A reviewing DA would look at that and say stop everything right now, who is this other informant I never heard of… It turned into a freak show. He’s been working up this homicide. He knows of one informant, but now there’s another informant in the declaration.”
Hunt said he wasn’t questioning the honestly of any of the witnesses, but, he added, “Any competent DA would have inquired as to who that person is at that time.”
Hunt said he would not use any of the informant evidence in a retrial. He noted that at the time of Smith’s trial there was a mistaken belief among some prosecutors that if they had evidence that was not considered exculpatory or that they weren’t planning to use it then they didn’t have an obligation to turn it over to defense attorneys.
Goldstein also noted how dysfunctional the system of handling evidence and turning it over to defense attorneys was during the Smith prosecution. He also said it was apparent that some prosecutors and sheriff’s officials did not understand the Massiah or Brady obligations.
Hunt said he would never have sought to use informants in the trial. He noted that he believed Smith lied when questioned by police and “as a prosecutor that’s far more valuable… To the extent prosecution thought this was wonderful evidence I can’t understand.”
Hunt added, “there was bad conduct” in the Smith case, but dismissal of the charges was not the appropriate remedy.