The People vs. Mark Wuerful, Esq
by Bruce McEwen, March 16, 2011
This one goes back deep into former DA Meredith Lintott's raggedy regime, an age-dated pot case that began with a big bang of a bust in July of 2007 and has been supplemented by busts of the same guy at the same Spy Rock property every year since.
The big bang occurred when a generator blew up, and then two propane tanks went blooey, and then a 3,000 gallon diesel tank, and a big barn burned to the
ground. It took a year to haul the toxics off.
Mark Wuerfel, 59, is the lead Weurfel in the Wuerfel family's explosive 435 acres off Spy Rock Road northeast of Laytonville. The explosions and subsequent clean-up, the police had immediately concluded, had been caused by a massive indoor pot grow.
The cops have been re-visiting Rancho Wuerfel ever since, and ever since Wuerfel Esq. an attorney, has not only insisted he's the wronged party he's a spirtual kind of dude who not only grows medicine he protects his property's spirit rocks, the huge stone outcroppings on which generations of Native Americans inscribed the hieroglyphic evidence that Wuerfel's acres were significant to them.
There's also a spring on the Wuerfel place whose inexhaustible bounty is so great it supplies a Wuerfel swimming hole but whose waters Wuerfel Esq says he hopes to donate to local tribes.
Besides his good reverence for the land and Native Americans, the unfortunate explosion notwithstanding, Wuerfel Esq. says he does multiples of good for many people affiliated with Mendocino Pride, "a state-registered cultivating cooperative" that grows marijuana for a La Jolla medical marijuana that calls itself the Therapeutic Healing Corporation.
But The cops says Wuerfel is a straight-up crook who operates a huge grow up on Spy Rock the reality of which he attempts to disguise with a lot of hooey about maybe someday somehow getting some ancestral water to Native Americans, that and unsupported allegations from Wuerfel that the cops themselves are in the pot business via the Laytonville Water District because, you see, the Laytonville Water District supplies households that may also be growing marijuana and a Sheriff's deputy named Mike Davis sits on its board of directors.
While the charges against Wuerfel Esq were irresolutely being considered by previous DA Meredith Lintott, Wuerfel sued Mendocino County over its fluid pot laws.
And, Wuerfel says, the cops, with Deputy DA Rayburn Killion along for back-up, busted into Wuerfel Esq's ranch office to seize documents and computers, photographs, banker’s boxes of files, hard-drives, memory sticks, and whatever else they could find to back up their opinion that Wuerfel Esq is in the pot business for the money, not the glory.
Wuerfel Esq also claims Sgt. Bruce Smith of the Sheriff's Department muscled him around during one of the raids on Wuerfel's inner sanctum.
Wuerfel's got so many beefs going it's hard to keep track.
Which may be the point.
The People just might throw up their hands in exasperated surrender.
We've been known to do that.
When Mr. Killion walked into Judge Moorman’s courtroom last Thursday afternoon, he said to bailiff Kent Rogers, “Please, just shoot me.”
Killion may have been joking but he wasn’t laughing.
The Wuerfel quagmire had been slopped up before the Honorable Ronald Brown before that senior judge retired due to illness. Now, the case comes before Judge Ann Moorman who began by saying, “I take these allegations very seriously,” a statement she would repeat as each argument from both sides confused the allegations beyond human comprehension.
“But first,” the judge said, “I want to tell both parties my perspective on this 1385 motion that was previously before Judge Brown.”
This 1385 motion would dismiss the charges against Wuerfel’s clients, the people on Wuerfel's pot roster that were discovered when the cops seized his office contents. Wuerfel of course wanted to charging the former DA herself with criminal misconduct.
Judge Moorman said she had no intention of granting the motion and wanted to go ahead with a prelim against Wuerfel’s clients, Mendocino Pride.
Back in 2007 attorney Wuerfel, on behalf of a Mendo-based gay and lesbian outfit called “Mendocino Pride,” was charged with cultivating and possessing marijuana for sale.
Judge Moorman said, “So where are we on the issue of discovery? I’ve heard there was some issue with discovery.”
“Discovery,” for those not up to speed on legal shorthand, discovery is the material one side must be provided to the other side prior to trial to insure that nobody is surprised and everybody has a chance to review all the evidence.
“Your honor,” Mr. Petersen said, “we have no discovery.”
Mr. Wuerfel explained.
“In the ’07 case, the discovery was provided but it has since been seized, and we have never seen it again. So we have no discovery at this point.”
Moorman wanted to know if Mr. Killion had anything to say. Why hadn't he provided the defense, Wuerfel and Petersen, with the evidence Killion and The People had against Wuerfel?
Killion: “Is Mr. Wuerfel representing to the court that he has no police reports, nothing?”
Wuerfel: “In ‘08 we received nothing.”
Killion: “I was unprepared for this question. I’ll have to pull the discovery logs and see.”
Petersen: “I don’t know, either, your honor. I may have some of it. Like Mr. Killion, I was unprepared for this question.”
Judge Moorman said it was her understanding that some of the seized material had been returned to Wuerfel.
“True,” Wuerfel said. “But very little.”
Of the four boxes seized, two had come back. As for the computers, the information was there, but you couldn’t open it. A special government de-encryption program would be needed to access it.
Petersen for Wuerfel.
“Your honor, we did not receive a program to view the material that was returned.”
Killion: “It’s a forensic cloning program.”
Moorman: “I’d like an inventory of what was seized.”
Killion: “It’s an open question.”
Moorman: “Do we know where it is?”
Killion: “Off the top of my head, I think a lot of it was taken to Virginia by the DEA.”
Agent Beau Bilek, our local DEA rep had been a party to the break-ins and seizures at Wuerfel's office. I say ‘break-ins’ because of Wuerfel’s remark that no judge in Mendocino County would sign a search warrant for such a blatant violation of lawyer/client confidentiality. Wuerfel said he knew our judges wouldn't do it because he stood by and watched the Deputy DA and other law enforcement officers hustle around trying to get one signed.
Moorman told Wuerfel to pipe down. He wasn’t a witness, he was a lawyer for heaven’s sake, and he ought to behave like one.
Wuerfel bowed his head and all but tugged his forelock.
Moorman: “I take these allegations very seriously.”
Petersen asked the impossible: “I wonder if counsel couldn’t provide a description of what was seized in the three respective searches, of ’07, ’08 and 2010.”
Moorman: “What are we going to do about that?”
Killion: “The court should have the same material.”
Moorman: “I’ll show you what the court has.”
The judge jumped from her big chair and ran in to her chambers, soon re-appearing with a large manila envelope. She peeked inside it and gingerly withdrew two items the size of cassette tapes, one blue, the other black, each trailing a length of white cord. With Mr. Killion’s help, the court learned they were external hard drives, one encrypted, the other not.
Killion: “The one that’s not encrypted should open with just a regular Windows program.”
Wuerfel didn’t think so.
Moorman: “Where was it encrypted?”
Killion: “A state computer forensics lab in Napa is where it came from, if it’s the stuff taken from the computers in ’08.”
Wuerfel: “Christopher Neary [a Willits-based attorney] couldn’t get the information out — neither the lab nor Mr. Neary could get it out.”
Petersen: “What the lab was supposed to do is send us a copy we could use. It was supposed to be viewable by any standard Windows program.”
Wuerfel: “On June 17, 2010 they used a flash drive to take all the information from two computers, in addition to cherry-picking through all the files for Mendocino Pride, including some files that were for civil cases. It was Mr. Killion, Agent Bilek, Deputy Wells. Again, while we were being detained, every effort was made to obtain a search warrant, and every time it was denied.”
Moorman: “I take these allegations very seriously."
She should. They're serious allegations. It's not every day in America that the forces of law and order bust into a lawyer's office and help themselves to his files, and the allegation here is that Mendocino County busted into Wuerfel's office not once but three times.
" Has there been any proceedings in these 2010 matters?” the judge asked.
Killion: “At this point, it’s been put off as an open investigation, to be filed in case the prelim goes forward.”
Moorman: “Any other materials or seizure issues I should be made aware of?”
Without any inventory, it was impossible to tell, and it all sounded that something out of Trollope, one of his offices of perpetual obfuscation.
Moorman noted that a motion to recuse the DA’s office had been filed. She said she’d like to set a date for a prelim, and have the whole thing started all over again, but there could be no prelim because there was no discovery.
The Defense of course wanted to toss it all, which is why they filed a 1385 motion to dismiss. They wanted Lintott, Killion and, for some reason, another attorney named Jackson, charged with breaking the law.
Her honor again said she took the allegations very seriously, and round and round it went.
Finally, Judge Moorman said she was going to have the attorneys file their motions all over from the beginning. The judge didn’t want to take it up where Judge Brown left off. She wanted to start all over. From the beginning, if anyone can remember that far back.
“I want to keep this case moving,” Judge Moorman declared.“If you can re-file your motions by March 25th, perhaps Mr. Killion will have a reply by the 30th.”
Moorman said she might entertain a new motion to dismiss if it was filed by April 4. If not, she’d schedule a preliminary hearing on April 5 to see if the case against Wuerfel should proceed. Also on April 5, Judge Moorman will consider whether the DA’s office — the one now run by newly elected DA David Eyster — should be tossed off the case on conflict of interest grounds. Maybe the whole Wuefel mess should go to the State Attorney General for prosecution. Maybe the judge would be doing the taxpayers a big favor by dismissing the whole show.