The discovery that prosecutors under previous District Attorney Tony Rackaukas secretly cheated by illegally using jailhouse informants to gain convictions left a large stain on Orange County’s justice system.
A San Diego County judge put an exclamation point on the misconduct by ruling last year that former prosecutor — and current judge — Ebrahim Baytieh’s tactics in a 2010 murder case were “reprehensible.”
So bad was the conduct of Baytieh and former Orange County sheriff’s detectives that instead of serving life in prison for torturing and killing a childhood friend, defendant Paul Gentile Smith will be released in five years under a deal accepted by the judge. He will have served a total of nearly 22 years.
The misuse of jailhouse informants — uncovered in 2014 by former Assistant Public Defender Scott Sanders and confirmed by a federal investigation — has unraveled more than 60 major cases in Orange County. Convictions were overturned, sentences reduced and charges dropped.
Now, some legal experts wonder why more isn’t being done to examine all the informant cases under Rackauckas or the dozens of murder convictions won by Baytieh. Surely, they say, there must be additional examples of cheating buried in the mountain of cases.
“What experience teaches us is that most misconduct doesn’t get unearthed,” said Lawrence Rosenthal, a former federal prosecutor and professor at the Chapman University Dale E. Fowler School of Law. “Baytieh did it once and got caught. You could say it’s a fantasy that this was the only time in his life.”
Baytieh, who as a judge is hampered from commenting, did not respond to an email.
Using informants is nothing new, but federal law prohibits law enforcement from sending informants to extract confessions from inmates who have been charged and are represented by attorneys.
The district attorney’s office says its Conviction Integrity Unit is reviewing cases involving jailhouse informants, identified through various means. Kimberly Edds, a spokesperson for the office, said some of those cases involve Baytieh.
But Edds would not give details on the extent of the review, how many cases are being looked at and what are the results of those probes.
“District Attorney (Todd) Spitzer has made ensuring the integrity of these convictions a priority and has invested immense resources in this work without any additional funding from the Board of Supervisors, in addition to reviewing nearly 70,000 felonies and misdemeanors a year for prosecution,” Edds said.
Inherent conflict
Some legal experts say Spitzer has a conflict investigating his own office, Baytieh in particular. After Spitzer took office in 2019 on a platform of reform, he elevated then prosecutor Baytieh to his inner circle, calling him the office’s “north star.” However, Spitzer later fired Baytieh as evidence mounted that he had hid evidence of illegally using informants.
Rosenthal said that in the seven years since Spitzer took office, the Conviction Integrity Unit has had little to show for its efforts.
“Mr. Spitzer has had a long time to show this is a priority and there hasn’t been evidence of that,” Rosenthal said.
Some criminal justice experts say prosecutors are too close to the cases to be objective and the job should be done by an independent party.
Defense attorney David Swanson said prosecutors might hesitate to get convictions overturned in cases where the defendant might actually appear guilty, even though he or she didn’t get a fair trial.
“It’s like, ‘Let’s create this incredible problem for ourselves,’ ” Swanson said.
Outside scrutiny needed
Alexandra Natapoff, a Harvard Law professor and leading expert on the use of informants in the United States, said the situation demands external oversight.
“Law enforcement and prosecutors have strong incentives to suppress information and many powerful tools at their disposal with which to do so. As a result, we can’t count on law enforcement or the ordinary criminal process to expose and correct informant misuse,” Natapoff said.
“Most of what we know comes from external scrutiny, such as media investigations, innocence projects, lawsuits and tragedies,” she said. “External oversight might appear expensive in the short term, but the obvious threat to the criminal system’s integrity is even more costly.”
Erwin Chemerinsky, a leading scholar on constitutional law and dean of the UC Berkeley School of Law, agreed.
“The DA’s office shouldn’t be the ones investigating whether the DA’s office got convictions that were tainted,” Chemerinsky said. “There are a significant number of murder cases tainted by this serious prosecutorial misconduct. But it is stunning that they never have been subjected to an independent review.”
Daniel Medwed, a professor at Northeastern School of Law in Boston, applauded Spitzer for his willingness to review the old cases, but said the prosecutors doing the investigation may have worked under the old administration or were mentored by those who did.
“There’s still a connection that makes it slightly harder to be objective,” Medwed said. “It’s very hard psychologically to review your own office’s work.”
‘We don’t have the money’
Then who should do it? And with what money?
Attorneys who represented the defendants aren’t going to dig through those old files for free. And most of those convicted prisoners are penniless.
“What lawyer is going to go on their own without getting paid, diving into something that will take hundreds of hours,” Swanson said. “What lawyer has the time to do that?”
The Orange County Public Defender’s Office, where Sanders worked, did not respond when asked if it would look at all the old cases for more cheating.
“The public defender does not have enough money to do current cases, much less dig up buried ones,” Swanson said.
Mike Semanchik, executive director of the Innocence Center in San Diego, said federal funding for wrongful conviction reviews has become more difficult to obtain under the Trump administration and that some remaining grants have new strings attached, such as cooperation with ICE. Some of the federal funding is administered through the state, but “everyone is showing up with their hands out,” Semanchik said. “The challenge for us is we have limited resources.”
He noted that such reviews are labor intensive, with some cases taking a decade to resolve.
Semanchik estimated it would take at least $500,000 just to get the ball rolling on the Orange County cases.
He suggested the county Board of Supervisors provide the funding as a service to the criminal justice system, particularly since it was county employees who caused the problem.
Attorney Annee Della Donna, founder of Innocence OC, another nonprofit that reviews convictions, also said the county should pay.
“The (county) is the reason they were wrongly convicted. (They) should bear the expense,” Della Donna said.
County Supervisor Vicente Sarmiente said the district attorney can — and should — handle the review.
“It is reprehensible when those entrusted to protect the public themselves engage in criminal behavior that violates the rights of individuals,” Sarmiento said. “I’m confident and expect the district attorney is using his prosecutorial powers to prioritize these cases and investigate his predecessors and powerful people instead of solely using his resources to target low-level offenders.”
Supervisor Don Wagner noted that county resources are limited and departments recently had to make cuts to hit this year’s $10.5 billion budget, about half of which is the general fund.
“There isn’t any appetite to say, ‘Let’s look at all of the cases to see if you would find something,’ ” Wagner said. “We don’t have the money to indulge that fantasy in the first place.”
Chemerinsky, former dean of UC Irvine law school, responded that the county could find the funds if it wanted to.
“The county has the money; the question is, does it want to spend it on this?” he said. “They’re just telling you it’s not a priority.”
Medwed said the moral cost of not doing an independent review may be high.
“Money is a legitimate concern in any government office, but there’s a larger issue at stake about the integrity of convictions in Orange County. That is something difficult to quantify in terms of dollars and cents,” he said. “But securing faith in convictions during that era is priceless.”
Rosenthal said the state Attorney General’s Office should undertake the review, although the office has a sketchy track record when it comes to investigating Orange County’s snitch scandal. The state office launched a probe in 2015 under then Attorney General Kamala Harris and quietly dropped it without taking action four years later under Xavier Becerra.
The state office did not answer an email seeking comment.
Sanders, who now is in private practice, said he doesn’t have the financial resources on his own to conduct such an exhaustive review.
“To those in power who mock the notion of spending money to right these wrongs, I can say with complete certainty that if your son or daughter was imprisoned after being prosecuted by Ebrahim Baytieh, you would be screaming from the rooftops for a county-funded reexamination of his cases,” Sanders said.