Three people investigated for allegedly dealing methamphetamine and heroin are no longer facing charges after their cases were dropped in Clallam County Superior Court on April 2.
The three cases, stemming from undercover investigations by the Olympic Peninsula Narcotics Enforcement Team, were dismissed after Superior Court Judge Ken Williams told Deputy Prosecutor Jesse Espinoza he could not use a confidential informant as a witness during trial.
Williams found the Prosecutor’s Office committed an egregious violation of the rules by not disclosing the identity of its key witness to the defense attorneys, despite being ordered by the court to do so.
“The main issue was I didn’t know who the informant was and they wouldn’t tell me and even when they were ordered to do so, they resisted that,” Defense Attorney J. Andrew Lauer said. “Ultimately, Judge Williams, I think, had it with their shenanigans.”
After discussing it with Clallam County Prosecutor Deb Kelly on April 2, Deputy Prosecutor Lewis Schrawyer moved to dismiss the three cases, saying the prosecution could not continue to trial without the confidential informant as a witness.
Kelly maintains Espinoza was operating in accordance with well-established case law when he withheld the informant’s name.
The first case, accusing Judith C. Marquez, of Beaver, of dealing methamphetamine, was filed in Clallam County Superior Court in May 2011. On Oct. 31, 2011, prosecutors filed two separate delivery of a controlled substance, heroin, cases against Kevin S. Carter and Gene R. Cuello, both of Port Angeles.
In all three cases, OPNET investigators used a confidential informant to purchase drugs from the defendants, according to court documents.
Lauer served as defense attorney for Marquez and Cuello. Ralph Anderson served as defense attorney for Carter.
“In both of these cases (Marquez and Cuello), the only real witness as to what was alleged to occur was this confidential informant,” Lauer said. “That person would’ve been their star witness. It was the only person who could say they did what they were accused of.”
Under law, prosecutors must turn over the identity of witnesses they plan to call during trial by a certain date unless they receive a court order allowing the identity to remain secret.
Kelly said for many years the Prosecutor’s Office policy has been to protect the identity of confidential informants until such time as non-disclosure would impinge on the due process rights of defendants.
“Informants are important for law enforcement in uncovering and prosecuting criminal behavior,” she said. “Obviously, once disclosure is made, they (informants) can no longer be utilized in that capacity.”
Equally important, she said, is the need to protect informants’ safety because once their identity is revealed, they are subject to harassment and retaliation.
During the April 2 hearing, Williams said an informant being subject to risk by testifying against someone who knows his or her identity is no different in the three drug cases than in any other criminal case.
After citing the law, Williams said, “I don’t think you can read that any other way than to say if your informant is your witness at trial, you have to disclose it.”
Williams said in the Carter and Cuello cases there clearly was an intentional decision early on not to disclose the confidential informant.
In a March 29 hearing on the Marquez case, Williams said he does not fault OPNET for the violations.
“Once a criminal case is filed it’s now the prosecuting attorney’s case and up to the prosecutor to see that all of the rules of law, including those relating to discovery, are followed,” he said.
Kelly said OPNET never has refused to turn over information about confidential informants, but her office will not ask for identifying information until it is clearly necessary.
“Once it is apparent a case is going to trial and disclosure is necessary to protect the due process rights of the defendant, we ask for the final information and turn it over to the defense,” she said.
According to court documents, Lauer indicated on Sept. 8, 2011, the Marquez case would be going to trial. The Cuello and Carter cases were in various stages of preparing for trial but both had a Nov. 24, 2011, compliance date by which prosecutors were required to state if there was an informant involved, if the informant would be a witness and the informant’s name and address, according to a March 27 opinion by Williams.
At one hearing the prosecutor seemed to argue that the Prosecutor Office didn’t have to disclose the informant if there was anything other than a direct statement by the defendant that the case would proceed to trial, he said.
“That is not the law,” Williams said. “That does not comport with constitutional mandates and is incorrect.”
On April 2, Williams said the prosecutor certified before the compliance date that any informant had been disclosed and the discovery provided.
“That was not the case, but that’s what the State (the Prosecutor’s Office) certified in these cases,” Williams said.
Discovery, which refers to pretrial information and evidence exchanged by the prosecution and defense, is important to protect defendants’ constitutional rights to preclude trial by ambush and to allow both sides to be fully prepared to present to a neutral fact-finder, Williams said. People have a constitutional right to confront their accuser, he said.
“And there are lots of people who argue about, ‘Well, that’s dumb because the individuals who committed the crime go free on what is called a technicality,’” Williams said in his April 2 ruling. “I don’t think the Constitution is a technicality. I think it’s important we continue to comply with it, both in its broad sense and in its specific sense, which the rules tend to define for us.”
Williams said there has been a systemic issue in the county with the Prosecutor’s Office providing discovery as required.
“... we continually, continually, time and time again argue over discovery. It creates congestion, hearings are not ready to go more often than they’re ready to go,” Williams said.
Kelly said she did not want to respond to comments made by the judge.
As a result of the proceedings in these cases, it became apparent that the Prosecutor’s Office needed to reexamine the timing of disclosures, she said.
Kelly said she met with OPNET prior to the rulings and clarified procedure so that deputy prosecutors make the disclosure decision at a much earlier point.