Orange County Superior Court Judge Gregg Prickett recused himself from the retrial of a defendant who won a new trial stemming from fallout in the jailhouse informant scandal after the defendant’s attorneys raised questions about the jurist’s endorsement of the original prosecutor on the case.
Assistant District Attorney Ebrahim Baytieh, who won a conviction against Paul Gentile Smith, 61, in 2010, is running for Orange County Superior Court judge.
Smith’s attorneys argued that Prickett should be disqualified because Prickett endorsed Baytieh. Prickett on Tuesday recused himself because some observers “might reasonably entertain a doubt that the judge would be impartial” in this case.
The case has been reassigned to Orange County Superior Court Judge Michael Cassidy and a pretrial hearing is set for Sept. 24.
On the eve of an evidentiary hearing granted by Orange County Superior Court Judge Patrick Donahue last month, prosecutors asked Donahue to grant a new trial.
Prosecutors said sheriff’s deputies who would be witnesses in the hearing on what is known as a Massiah motion would invoke their Fifth Amendment rights against self-incrimination and Orange County District Attorney Todd Spitzer refused to grant any of them immunity.
A Massiah violation involves prohibited law enforcement questioning of a defendant when they have been charged and are represented by counsel.
Smith’s attorneys, including Scott Sanders, the attorney who uncovered the confidential informant program scandal, is now focusing on Baytieh, who, coincidentally, was tasked by former District Attorney Tony Rackauckas to train prosecutors on the use of informants in the wake of the scandal.
The motion to disqualify Prickett from the case includes multiple allegations of Baytieh conspiring with law enforcement to use informants illegally to solicit incriminating statements from Smith and then later moved to keep the effort quiet.
Sanders and co-counsel Sara Ross intend to file a motion to recuse the Orange County District Attorney’s Office from the case and an outrageous governmental misconduct motion to dismiss charges. They intend to call Baytieh as a witness in court hearings.
“At the center of this litigation are allegations of brazenly unlawful and unethical actions demonstrating an unrelenting win-at-all costs effort led by Baytieh that rivals any in this county’s history,” the attorneys said in court papers.
Spitzer has asked an outside law firm to investigate what happened in the Smith case and Baytieh will not be involved in Smith’s retrial.
The defense attorneys accuse Baytieh of leading a “coordinated prosecution team effort to conceal evidence” from Smith, “while deceiving his counsel, fact-finders, and courts through an ever-expanding output of misconduct.”
They alleged that Baytieh “concealed for more than a decade a recorded interview with informant Jeffrey Platt, in which Platt admitted that he and two other inmates were intentionally placed in defendant’s dayroom group (in jail), where they then repeatedly questioned the defendant about his crime until he made incriminatory statements, spoke about his work in and out of custody as part of a sting operation on the case intended to collect evidence of a hit against lead (sheriff’s) investigator Raymond Wert, and played recorded calls and text messages with another alleged co-conspirator, Tina Smith, in the purported effort against Wert.”
When it became clear that Platt had violated Smith’s constitutional rights, the attorneys argued, Baytieh turned to another informant, Arthur Palacios, who, they say, falsely claimed he happened to overhear Smith talking about the murder.
“Baytieh misled the grand jury by eliciting testimony from Palacios designed to falsely portray Platt as an authentic co-conspirator with the defendant in the alleged effort to kill or assault Wert, even though he knew that Platt was an informant,” the attorneys argued.
They further claimed that Baytieh “hid” court papers that would have shown Palacios was offered pay to do informant work in the jail just months before he was to take the stand in the Smith trial. That information surfaced last month for the first time, the attorneys argued.
They say Platt was released from custody at some point to continue working on the sting operation and prosecutors attempted to help him with a criminal case in San Diego.
Once Platt was released he was replaced by Art Longacre, a state prisoner who was brought into Orange County Jail to testify in another murder trial Baytieh was prosecuting, the attorneys said. Baytieh hid that fact from Smith’s prior defense attorney, they argued.
There are also allegations involving hiding evidence of the workings of the confidential informant program contained in a special sheriff’s handling log that also factored into the informant scandal. The allegations could affect multiple other high-profile murder cases Baytieh prosecuted over the years if Smith gets an evidentiary hearing in his case.
Smith is charged with the Oct. 24, 1988, killing of 29-year-old Robert Haugen in Sunset Beach.
Smith pleaded guilty before his sentencing in 2010 to conspiring with his then-girlfriend to solicit an attack on the lead investigator in his murder case, but defense attorneys are working to have those charges dismissed.
Smith was convicted of first-degree murder with jurors also finding true a special circumstance allegation of torture.
Smith and Haugen had been friends for eight or nine years and Smith was a regular customer of Haugen, who was a marijuana dealer, Baytieh said during the defendant’s trial.
Haugen was stabbed 18 times with the victim’s nude body found on his bed with a pillow over his head and a large stereo speaker between his legs that was set afire.
Smith was linked to the killing after he was convicted in a domestic violence case in Las Vegas in 2007 and police obtained a DNA sample from the defendant.
Smith stabbed, tortured and attempted to set fire to Tina Smith, who is no relation to the defendant, in Las Vegas in 2007.
Investigators found blood spots in Haugen’s apartment that they eventually matched to Smith.
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