by Tristan Hiegler
Port Townsend Leader
While closing arguments have been presented in a long-running case concerning a regional drug task force, a ruling is not yet in sight.
Jefferson County Superior Court Judge Craddock Verser heard arguments from defense attorneys for Timothy and Steve Fager on Sept. 24. The Fagers were charged in 2009 with illegally growing and selling marijuana after an investigation by the Olympic Peninsula Narcotics Team.
Their attorneys, James Dixon and Mike Haas respectively, accused OPNET of governmental misconduct throughout a nine-day suppression hearing. Lewis Schrawyer, a Clallam County deputy prosecutor representing the state, denied any wrongdoing on the part of the task force, whose member agencies include the Clallam County Sheriff’s Office, the Jefferson County Sheriff’s Office and the Sequim Police Department.
Verser, after hearing the arguments, set an Oct. 5 arraignment date for the Fager brothers. He said his decision on whether to suppress evidence in the case could take awhile to prepare.
“I will not have my opinion out by then, I can assure you of that,” Verser said in court. “I appreciate the three of you presenting all the information you did,” he told the attorneys at the end of his comments.
The defense’s arguments
Haas, a former candidate for Verser’s judge seat in this year’s election, began his arguments by thanking the judge for his patience. Haas went on to explain that his nonviolent client was a business owner who posed no risk to the community.
“What is this case about? Community safety? Obviously not,” Haas said. “On the other hand, is this case about money? Absolutely.”
Haas said OPNET stood to gain $400,000 in seized property assets. He also said the fund used to pay OPNET personnel overtime was partly filled by asset forfeitures.
“We cannot rule out financial gain as a motivating factor,” Haas said.
Another central argument in the defense’s case to throw out the case was the use of Joseph Haynes as a confidential informant. Haas argued that using Haynes, whom Haas described as a drug addict and convicted sex offender, showed negligence on the part of the investigation.
Haas said Haynes never was confronted by OPNET detectives about his drug habits and was left alone in custody of children though he had committed sex crimes involving children.
Haas said Haynes’ brother, Danny Haynes, contacted OPNET to get help for his brother. Haas said OPNET then used Joseph Haynes as an informant despite his addiction and criminal history.
Haynes died of a drug overdose in 2009, according to court documents.
“Certainly they could have done more to prevent his death than they did,” Haas said of OPNET’s treatment of their confidential informant, whom they used to allegedly link marijuana buys to an employee of the Fager brothers. “He was a broken man, broken by drugs and alcohol.”
Haynes was staying at a friend’s house while the investigation into the Fagers was ongoing. Children were present at the house as well. During his arguments, Haas accused OPNET of “placing the safety of a 9-year-old child at risk for operational security.”
Haas and Dixon also addressed issues such as OPNET’s alleged use of thermal scanners on residences surrounding Steve Fager’s private residence without warrants; that there is no record of some of the search warrants existing in the Clallam County Superior Court’s system; and the trespassing of OPNET detectives onto the Fagers’ Discovery Bay property.
The workshop where the brothers said they grow and distribute medical marijuana legally is in the Discovery Bay area.
Dixon also raised expert witness Dr. James Woodford’s Aug. 20 testimony. Woodford said OPNET agents could not have smelled marijuana at the Discovery Bay property from where they said they did.
Prosecution’s arguments
After Haas and Dixon spoke, Schrawyer started presenting his case against suppressing evidence or dismissing the case.
“Judge, obviously I don’t agree at all,” Schrawyer told Verser in court. “Frankly, if I were the kind of person that could be offended, I would be offended by some of the comments made by counsel.”
Schrawyer said Haynes was properly registered in Washington and obeyed the conditions of his case until the day he died. He said trained narcotics officers had 149 contacts with Haynes over the course of the investigation. Schrawyer said the officers deemed Haynes fit to be a confidential informant and didn’t observe anything wrong with him.
“Everything he told OPNET was true,” Schrawyer said. “He kept providing information about where drugs were available.”
As for OPNET detectives trespassing onto the Discovery Bay property, Schrawyer cited case law that businesses don’t have the same expectation of privacy as private residences.
As for the financial motivation of OPNET, Schrawyer said that story doesn’t add up because OPNET detectives didn’t know the value of the property and the seized assets before starting the investigation.
He said the agency was simply doing its job by trying to find the suspects that were bringing marijuana into Clallam County.
“One of the biggest things wrong with that argument is it starts backwards,” he said of Haas’ assertion that OPNET was in it for the money earned by seizing property.
Schrawyer called Woodford’s credentials into question. He said one could see the joy in Woodford’s face when the expert witness reflected on his training that allowed him to testify against the government.
“Did Dr. Woodford ever give anything other than his opinion? No,” Schrawyer said of the Aug. 20 testimony.
