By 
Nick Gerda |
Orange County prosecutors “inappropriately abandoned” their plans to notify defendants about informant violations after an appeals court found prosecutors had systemically violated defendants’ rights with the illegal informant program, according to a little-noticed passage in a report by DA Todd Spitzer’s office that’s sparking a new round of cover-up accusations.
The report, issued in June by DA special prosecutor Pat Dixon, centers on Orange County’s biggest law enforcement scandal in decades – centered on misuse of jailhouse informants and lies in court testimony that hid evidence of the wrongdoing that led to the entire DA’s office being kicked off the biggest mass murder case in the county’s history.
The report notes that in June 2016, after the informant violations were exposed in court, then-DA Tony Rackauckas announced his office would review a key internal document in the scandal, known as the “special handling log,” and disclose evidence of wrongdoing by law enforcement that had been wrongfully kept secret from defendants and courts.
But the DA’s office wrongfully dropped it, according to the special investigation commissioned by the current DA.
“In a June 9, 2016 press release, the OCDA publicly announced ‘OCDA’s Action Plan to Remedy Legal Issues’ by continuing ‘to analyze the entirety of the [Special Handling] Log material to determine what other cases, if any, were affected, what [constitutional] violations, if any, need to be reported to defendants, the court’ and the [California Attorney General],” Dixon stated in his final report.
“This effort was later inappropriately abandoned by the former OCDA administration after the Court of Appeal failed to reinstate OCDA as the prosecution of record in the [Seal Beach mass shooting] case. After learning that the task was not completed, in October 2019, District Attorney [Todd] Spitzer restarted this effort to inform defendants of past [constitutional] violations.”
Rackauckas, the Orange County DA from 1999 until early 2019, didn’t return phone messages seeking comment.
The disclosure abandonment is mentioned in a single paragraph of page 23 of Dixon’s final report on the informants scandal. Spitzer did not highlight it when his office issued a lengthy news release in June summarizing the report.
But it eventually was noticed by Scott Sanders, the defense attorney who brought the informants scandal to light.
In a new court filing, Sanders is alleging Spitzer buried this info and kept in place the prosecutors whom Spitzer’s own administration found had improperly abandoned their obligation to turn over evidence to defendants.
“The discovery of five years of notes within the [Special Handling] Log was a bombshell that prompted even the OCDA to finally make admissions about the use and misuse of informants in the jail, and the perjury of testifying witnesses,” Sanders, an assistant public defender, wrote in his new filing this week.
“The concealment of the [Special Handling] Log was almost unquestionably the single most important factor in the decision of former Superior Court Judge Thomas Goethals to strike the death penalty as a sentencing option” in the Seal Beach mass shooting case, Sanders added.
Even after Goethals kicked the DA’s office off the Seal Beach case in 2015 – a decision the appeals court upheld in 2016 – the judge said it was the DA’s responsibility to ensure other defendants would get notified about evidence from the log that affects their case, according to Sanders’ filing.
Yet four years later, the DA’s office is still refusing to turn over evidence from the log, and quietly revealed in June that prosecutors had abandoned that effort until fall 2019, Sanders wrote.
“The [June] report suggests that members of the ‘former OCDA administration’ were solely responsible for what occurred, and that the current administration honorably corrected the past wrongs,” Sanders wrote in his court filing.
“This was incredibly misleading, particularly considering District Attorney Todd Spitzer was aware of prosecutors’ ‘abandonment’ for at least nine months when the report was released and never spoke a word publicly about it—showing that in this prosecutor’s vision of law and order he and his office get an exemption.”
In a statement responding to Sanders’ filing, Spitzer’s office criticized the attorney without addressing the substance of his allegations, while noting Spitzer took action last year when he learned the disclosure effort had ben dropped.
“When the current District Attorney administration learned that the prior District Attorney abandoned its action plan to review the Sheriff’s Special Handling Log (SH Log), District Attorney Spitzer immediately directed a top to bottom review of the SH Log by a team of veteran prosecutors,” Spitzer’s office wrote.
“That review, which involves a complete review of every inmate listed in the log to determine if Brady and discovery obligations have been met, has been ongoing for the last year, and is nearing completion. Defense attorneys have been notified when issues have been identified as a result of the review and those notifications are ongoing.”
Spitzer’s office went on to express disappointment that Sanders’ boss, interim Public Defender Martin Schwartz, allowed Sanders to file the motion.
“We litigate legal motions in a court of law, not in the press as has been the pattern and practice of the Orange County Public Defender’s Office. It is disappointing that Mr. Schwarz, as the interim, not permanent Public Defender, who reports to the Board of Supervisors, continues to allow one of his taxpayer-funded attorneys to hijack unrelated cases in order to further his own personal agenda,” Spitzer’s office wrote.
“It is clear that Mr. Sanders cares more about advancing his own political and personal agenda than representing his client which is the work the taxpayers pay him to do.”
In his court filing, Sanders says the prosecutors who abandoned the log disclosures included Dan Wagner and Ebrahim Baytieh, whom Spitzer later promoted or kept in a management role after he took office in January 2019.
Baytieh didn’t return a phone message seeking comment, nor did Wagner, who retired in December 2019 with public praise from Spitzer.
At their retirement party in December 2019, Spitzer praised Wagner an “honorable” man who cares deeply “about the ethics of our profession.”
The task force Spitzer assigned to review the special handling log were still at work as of the June report, Dixon wrote, adding their work was “expected to be completed within the next six to eight months.”
Nick Gerda covers county government for Voice of OC. You can contact him at [email protected].
