By David M. Greenwald
Executive Editor
Santa Ana, CA – Orange County Deputy DA Seton Hunt filed an opposition to a motion to dismiss filed by Public Defender Scott Sanders in September in the retrial of Paul Smith.
In their motion, the DA notes that in the first trial for Smith, conducted in 2010, the prosecution called an informant as a witness.
“Many years later it was determined that discovery relating to additional in-custody witnesses who had spoken to the Defendant wasn’t discovered to the defense prior to the first trial,” this led to the DA conceding that Smith was entitled to a new trial because he was not adequately able to litigation potential Massiah and Sixth Amendment violations due to discovery violations.
The DA now indicates that they will not seek to introduce any evidence from witnesses that would be informants at the retrial.
Hunt writes, “Despite all of these efforts to ensure Defendant will receive a fair re-trial, Defendant claims in his motion to dismiss for “Outrageous Government Conduct” 
that the murder count (a brutal murder committed in 1988 that the People are confident the Defendant will be proven guilty of beyond a reasonable doubt in the re-trial) should be dismissed because of discovery violations relating to informants that will not be the subject of evidence in the re-trial.”
Hunt calls this an inappropriate remedy.
In September, Sanders filed the 400-page motion to dismiss for outrageous government conduct in the case against Paul Gentile Smith.
The motion alleges that the prosecution team was “concealing numerous items of evidence and producing false and misleading evidence in order to secure Paul Smith’s 2010 conviction for special circumstances murder” but then more remarkably carried out “a fourteen-year cover up of historic proportions.”
Sanders alleges, “The acts described below have irredeemably eroded Smith’s right to a fair re-trial, unfairly delayed Smith’s re-trial, and eviscerated any reasonable belief that all favorable and material evidence will ever be disclosed to this defendant. The only appropriate remedy is dismissal.”
At the center of this motion and these allegations are former Senior Assistant Orange County DA Ebrahim Baytieh, now a judge.
Sanders told the Vanguard, “What’s extraordinary about what occurred here is how far [Baytieh] was willing to go to keep this misconduct hidden.”
The allegations go well beyond the actions of Bahtieh, and Sanders in the motion names numerous investigators and high ranking sheriff’s in the Orange County Sheriff’s Office who participate in what he alleges as a criminal conspiracy referring to the trial prosecutor and the law enforcement personnel that participated in the case investigation leading up to Smith’s 2010 conviction.
In a phone interview with the Vanguard Tuesday, Public Defender Scott Sanders responded, “This filing represents a truly terrible step for justice in Orange County.”
He explained, “We should be much further along after all that has happened here, and in this moment, it feels like we’re back in 2014.”
It has been over ten years since the discovery of the Orange County Sheriff’s informant program led to massive ramifications in a number of high profile Orange County cases.
But Sanders believes that this case may be the worst of them all.
Sanders explained “We filed this huge motion three months ago, and that motion lays out that it’s really the worst in all of the cases. The conduct touched another a hundred cases, but the amount of evidence, informant related evidence, concealed was so massive. DA’s office, the case gets moved to San Diego, the DA files his brief.”
In his motion, Hunt argues that the defense motion “claims that there was a purposeful attempt to violate Massiah. The People agree that the interviews of the two informants other than Palacios … were not provided in discovery prior to the first trial. The People do not concede this was purposeful or that there was a conspiracy to violate Defendant’s Sixth Amendment rights.”
They further note that “the vast majority of Defendant’s motion doesn’t even involve this case, but rather appears to be a personal attack on the integrity of the previous trial prosecutor generally.”
Hunt argues that even if nondisclosure was purposeful, “it would not prejudice Defendant in the re-trial as no evidence regarding any informant will be presented by the People in the re-trial.”
The DA adds that they “have no evidence regarding any purposeful coverup by the prior trial prosecutor” and even if they did, “even if the Court assumed that there was such a coverup, the appropriate remedy would not be a dismissal of a brutal murder that occurred in 1988…”
Sanders noted that the DA claims they fired Baytieh, the former prosecutor due to his misconduct.
However, Sanders explained, “Their claim was that they fired Baytieh for that reason. Whether that is reality or not only I prove it, it’s not even something that I’m interested in. It’s them that has the problem because they’re the agency that claimed that they fire this veteran prosecutor because of the misconduct. In our case, there’s no question the misconduct happened and its massive.”
But Sanders countered, whether true or not, “What undoes that tremendously is to come back now and say, hey you’re being unfair to Baytieh, Mr. Sanders, and having them be so strenuous.”
Sanders told the Vanguard, “I’m feeling like they are very interested in making sure this does not expand in the way the facts suggest are warranted.”
At the same time, while these matters have been dragged out over the last decade, Sanders said, “I think this has been one of our unique abilities, is we’ve stayed in this battle a long time.”
He said, “I think they’ve hoped they could run the clock with me and others, but we’ve shown that we have really good staying power. So this is the worst case. I mean, this is hands down, the worst case, of the informant scandal where you’ve had dozens of cases impacted. So to sit here and to actually present yourself as if you’re on the right side of this and that this is justice to stop any hearing, says you really do not want folks to understand this.”
He added, “I guess it’s just damage control—when you’re not supposed to be doing that.”
