From when@speakeasy.org Sun Jan 18 15:04:57 1998 Date: Sun, 18 Jan 1998 15:03:14 -0800 (PST) From: Mike Baldwin To: darral@hemp.net Subject: inform Private Eye? or police informere? 

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NewsBank, inc. - The Seattle Times - 1997 - Article with Citation
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 Headline: PRIVATE EYE OR POLICE INFORMER?
           ROLE OF LAWYER'S INVESTIGATOR IN DRUG-BUST CASE IS UNDER
           SCRUTINY

 Date:     September 29, 1997        Section:    SNOHOMISH
 Page:     B1                        Edition:    FINAL
                                     Word Count: 1034

 Author:   REBEKAH DENN   SEATTLE TIMES SNOHOMISH COUNTY BUREAU

 Text:
 The use of an Everett defense lawyer's private investigator as a police
 informer is raising ethical and legal questions about a $2 million drug
 bust this summer, as well as other cases.
 
 
     The investigator may have given police information on a marijuana
 farm run by one of the lawyer's clients, according to papers filed in
 federal court.
 
     The double identity of investigator Dale Fairbanks came to light
 when a lawyer for a man charged in the marijuana case sought to have his
 client released on bail.
 
   The lawyer, Allen Ressler, said the judge should not take Fairbanks'
 word that his client was too dangerous to release.
 Ressler said Fairbanks was a "loose cannon" and an informer who may have
 violated the attorney-client privilege through his work.
 
     The Washington Association of Criminal Defense Attorneys has asked
 for an investigation.
 
   "When the government uses a spy in a lawyer's office, it necessarily
 undermines the public's confidence in the
 criminal-justice system," association President Mark Muenster said in a
 written statement.
 
     Mark Mestel, the defense lawyer who had used Fairbanks as an
 investigator, sent a letter to his clients, including former Snohomish
 County Sheriff Patrick Murphy, after learning Fairbanks was an informer.
 
     Mestel warned his clients that their cases may have been tainted if
 Fairbanks had leaked to police information from the clients'
 confidential files.
 
     A key issue is whether Mestel still represented Gregory Haynes, one
 of the men charged in the marijuana bust, at the time Fairbanks became
 an informer.
 
     Mestel had represented Haynes in the past, but attorneys disagreed
 in federal court on whether Mestel still represented him.
 
     Mestel did not return phone calls for comment.
 
     U.S. Attorney Kate Pflaumer said she did not think Mestel
 represented Haynes at the time.
 
     Regardless, Pflaumer said, she did not see a problem with
 authorities using Fairbanks as an informer. The attorney-client
 privilege does not cover continuing or future criminal acts, and
 Fairbanks volunteered to inform after observing criminal conduct, she
 said.
 
    Fairbanks testified he became an informer because he was upset about
 the way an unrelated civil case involving Haynes was handled and because
 Haynes asked him to deliver marijuana to Mestel.
 
    Mestel's lawyer, Irwin Schwartz, called the marijuana claim "as bogus
 as can be" and suggested Fairbanks was motivated by money.
 Fairbanks testified he expected to receive a $150,000 payment from the
 federalDrug Enforcement Administration for his help on the drug bust.
 
     U.S. Attorney Pflaumer said "there was no attempt to plant anybody
 in anybody's office, there was no attempt to make an informant be part
 of any attorney-client conferences or work on behalf of the government
 as far as other clients."
 
      Fairbanks "was not some mole in some attorney-client relationship,"
 Pflaumer said. "He was simply asked to go back and report on what
 happened with those same people who were committing present and future
 crimes."
 
     Gerald Lefcourt, president of the National Association of Criminal
 Defense Lawyers, said he was surprised the U.S. Attorney's Office
 defended Fairbanks' use.
 
     "It's about the lowest, most unethical things a lawyer can do, and
 it makes the entire legal profession look bad," he said.
 
     "Bribing a law-firm employee to break that sacred trust (of the
 attorney-client privilege) is not only deplorably unethical but a
 violation of the clients' constitutional rights as well."
 
       Fairbanks testified in federal court that he gave the county
 Regional Narcotics Task Force regular information on Haynes.
 
     Fairbanks' work apparently contributed to the seizure of 2,200
 marijuana plants in Eastern Washington in July. Five people, including
 Haynes, were charged in federal court with conspiring to manufacture
 marijuana and launder money.
 
     A hearing on the case is scheduled for today.
 
    Fairbanks testified he also wore a third hat in the complicated
 drug-bust case.
 
     He said he did some investigative work for Haynes, including telling
 him whether another man was a police informer, and sold Haynes two
 automatic weapons. Fairbanks testified he learned about the marijuana
 operation during a meeting with Haynes and Mestel.
 
     Mestel wrote his clients that the same attorney-client privilege
 prohibiting defense lawyers from sharing with authorities information on
 clients' past criminal activities extends to the investigator.
 
    Mestel added that he was trying to determine whether Fairbanks had
 breached that privilege in any of his cases.
 
     "An investigator would have had access to God knows how many files,"
 said Schwartz, the attorney representing Mestel. "If he went out on
 behalf of the lawyer and client to interview witnesses, which master was
 he serving?"
 
      Fairbanks, who does not have a listed telephone number and could
 not be reached, testified this month that he is an informer on one other
 pending case for the narcotics task force.
 
     At least one of Mestel's other clients, former Sheriff Murphy, has
 said Fairbanks may have affected his case.
 
     Murphy said in court papers filed recently that Fairbanks became an
 informer about the same time Murphy hired Mestel as his attorney.
 
     "We have to re-evaluate every communication that took place between
 my attorney, who represented me, and his investigator," Murphy said.
 
     Murphy was charged in 1995, just before an election for sheriff,
 with fraudulently obtaining painkillers.
 
     The charges were dropped after a judge ruled some evidence had not
 been obtained legally.
 
     Murphy, who lost the election and said the charges were politically
 motivated, has civil suits pending against government officials, asking
 for more than $10 million in damages.
 
 Rebekah Denn's phone message number is 425-745-7804. Her e-mail address
 is: rden-new@seatimes.com

 Graphic:
 PHOTO

 Caption:
 1) MARK MESTEL
 2) KATE PFLAUMER

 Copyright 1997 The Seattle Times

 Record Number: 2563198
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