The Wuerfel Whirl

by Bruce McEwen, May 18, 2011

Over and over the Wuerfel case convenes in Ukiah court with a great feeling of expectation that

Mark Wuerful

something is about to happen — but it never does.

Round and round it goes: The Wuerfel Whirl.

Let’s put on some background music and introduce the dancers.

First there’s the co-defendants, Mark and Dana Wuerfel, both lawyers, and right there you can expect complications.

The Wuerfels are facing marijuana cultivation charges originally filed by the previous DA, Meredith Lintott. Ms. Lintott seemed to file everything the cops brought her, and there the files often lay, growing old and opaque for want of timely disposition.

But the Wuerfels seem to especially irritate the forces of law and order. Maybe it's their cover story, a jaw-dropper of implausibility (and condescension) that says the Wuerfels are growing medical marijuana so they can bring potable water to local Indians.

Apart from the raids on Rancho Wuerfel north of Willits in the area of Spy Rock, the Wuerfel law office in Laytonville was also visited by representatives of the thin blue line. During the unannounced office visit Mr. Wuerfel says he was roughed up by deputy Bruce Smith with the DEA's legendarily hands-on Beau Bilek also behaving, as local liberals might say, inappropriately, which can mean anything from a karate chop to the throat to a rainy day in mid-May.

Files and computers, among other alleged pieces of evidence that the Wuerfels were trafficking in devil weed, were confiscated.

Thus commenced, or had already commenced, five years of courtroom fol de rol, most of it a Wuerfel-generated blizzard of legal what fors and wherefores.

Which is where we are today, mid-blizzard.

The Wuerfels and their Ukiah-based lawyer, Justin Petersen, want the all the pending charges against the Wuerfels thrown out and new charges filed against the former DA, some of her deputy DAs, and several cops, including the DEA’s Beau Bilek.

Rookie Judge Ann Moorman is trying to sort it all out. Last week she made another attempt to see if clarity was even possible.

“I want to spend a few minutes this morning reviewing the status of these cases,” Moorman intrepidly began.

DA David Eyster, who tends to go apoplectic at the mention of Wuerfel, has assigned the Wuerfel monster to Deputy DA Rayburn Killion. Killion has prior experience with the Wuerfel matter.

“We have a prelim scheduled for the end of this month,” Judge Moorman said optimistically.

One of Wuerfel’s multi-pronged counter-offensive's objectives has been to get this prelim cancelled. He tried again last week, but the judge wouldn’t allow it.

“We’ll get back to that,” Moorman said firmly, apparently fully aware that a major attempt at obfuscation by Wuerfel camp was under way.

“Right now I want to go over all this on the record while we have a court reporter to get it all down. Now, the search warrant was served in ’07, correct?”

“That’s correct, your honor,” everyone agreed, a minor miracle unlikely to last.

“Then in ’08, there was initially no search warrant, but one signed by Judge Brown was obtained before the search was over, correct?

“Yes, that’s correct, your honor.”

Two agreements in a row? A new record for this one.

“More files and items were seized and after which a second complaint naming Mark and Dana Wuerfel was filed, is that right?”

“That’s right your honor.”

Three!

“Then some questions were raised as to the nature of those items seized, correct?”

“Correct.”

Four!

“So some of these were client/lawyer privileged?”

“Yes.”

“Correct.”

Five!

“That’s right.”

“Again, I’m just getting the allegations clear,” Moorman said by way of forestalling a commotion among the crowd that attends the Wuerfels’ court appearances, a crowd heavy on people who think God Himself demands global application of the hallucinogen.

“So after these allegations were made Judge Brown ordered prosecution to produce the hard copies…”

Five and out.

Justin Petersen said, “I’d put that a little differently, Your Honor. We were allowed to view it at the DA’s office. Former Deputy DA Lee Nerli was trying to get the Feds to take the case, so I don’t know if everything was even there at that time. We don’t know how much was already in possession of the DEA.”

“We’ll get back to that,” Moorman said. “But what was seized? Isn’t there a list of items seized?”

Nobody knew where the list was or even if there was one.

Petersen: “We tried to pick out what items defense thought were privileged.”

Killion: “We sat through some informal conferences.”

Moorman: “But those items defense contended were privileged — the category the court calls electronic — were given to Mr. Neary (a private Willits attorney) and the federal forensics lab were supposed to examine these?”

Petersen: “I would state that a little differently, Your Honor. They were supposed to copy that material from the ENCASE format which only law enforcement can use. They were supposed to give us a copy that anyone with Windows can use, but so far we’ve been unable to open those files.”

Moorman: “Then there were some files and notebooks, correct?”

Petersen: “Correct.”

Moorman: “Now, I’ve reviewed the minutes from a meeting with the parties and it says some civil files were released to defense.”

Killion: “I don’t remember that.”

Moorman: “There was a collection of documents labeled Civil Two.”

Petersen: “That was what law enforcement called ‘a person of interest’.”

To law enforcement we're all persons of interest, potential scumbags if not already deep into irremediable scum baggery.

Moorman went through a list of civil cases, one through nine, and boldly declared to an audience already hopelessly lost in the legal bushes, “We’re going to make sure the record in this case is crystal clear. I’ve been trying to make out what’s going on here and it has been challenging. Now, I have two other — three other — groups of documents that Judge Brown found to be work product…”

Petersen: “I’m not sure what’s in those.”

Moorman: “Did you get a copy of those from Judge Brown?”

Petersen: “I’d have to check. I know it was ordered.”

Moorman: “Please do and get back to me.”

Petersen: “I will, Your Honor.”

Moorman: “Now, Mr. Neary summarizes his experiences in trying to look at the information in the electronic data, which is marked as exhibit A, correct?”

Petersen: “So those reports from Mr. Neary leave me with a partial understanding. And he remains in possession of all of those with the exception of the laptop that defense has in court?”

“Yes, you honor,” Mark Wuerfel said, showing her the laptop.

Moorman, ignoring Wuerfel, “And with respect to these other items — a variety of things — he was able to look at he determined were not attorney/client privilege; and others he determined were. And since the reports were distributed to the parties, the 1385 Motion, Judge Brown issued a ruling to deny the motion that was before him — we’ll get back to that. Any items seized in ’08 I want to know where they are, but — and I’ll come back to that — but the motion before this court is a boilerplate form to dismiss the case, the factual underpinnings to this motion are that material constituting attorney/client privilege was invaded.”

Petersen: “Again in 2010, Your Honor.”

Moorman: “I just want to take this one step at a time. In the ’08 time, no case was pending…”

Wuerfel: “The ’07 case was, your honor.”

Gawd spare us all, but on it went.

Moorman: “The Petersen law firm was representing Mr. Wuerfel in something else?”

Petersen: “That’s right, your honor.”

Moorman: “And that may be germane, I don’t know, but some of this material was either corrupted or can’t be found. And then another cache in 2010 was taken without a search warrant?”

Petersen: “Yes. But in this case the material was taken with a thumb drive — besides the four banker’s boxes of files.”

Moorman: “And that material was related to Mr. Wuerfel’s defense in both cases?”

Petersen: “That’s right. Thumb drives were used to take information from computers but charges haven’t been filed in that case charges are still pending.”

The amazing Judge Moorman seemed to actually be making sense out this baffling set of boxes, files, thumb drives, and chronologies.

Moorman: “Mr. Petersen, on behalf of your client, are you saying that most of these files contained attorney/client information?”

Petersen: “I can’t say it all did because I don’t know how much they took. But I know they had the ability to take it all.”

Moorman: “It’s your contention that they took information relating to these cases that was attorney/client privilege?”

Petersen: “Yes!”

This is the crux of the current motion, of course, but Judge Moorman says she doesn’t want the 1385 Motion submitted — “a motion Judge Brown already ruled on.”

Petersen: “He didn’t rule, only on the material submitted. He hadn’t had a hearing.”

Moorman: “Mr. Neary concluded that some of it was ‘confidential,’ which I don’t know what he means by that. But Mr. Killion, don’t we have to return to the course of conduct in 2010?”

Killion: “I don’t know what was in those files, but as far as that goes, counsel and Mr. Wuerfel were invited to our office to go over it, but Mr. Wuerfel refused to do that.”

And Ms. Lintott was probably insulted at the snub.

Moorman: “I’m going to appoint Mr. Neary to go through those boxes and have those files provided to me within 48 hours. And I’ll turn it over to Mr. Neary to determine if any attorney/client privilege or work product was taken, because if there’s been a violation…”

Petersen: “He may not know the significance of some of those things.”

Moorman: “What are the positions of the parties as to the material previously reviewed by Mr. Neary?”

Petersen: “Some of it may be corrupted.”

Moorman: “What if it is?”

Petersen: “Then the defense is compromised.”

Moorman: “I think there has to be some proof that it was reviewed by prosecution. With respect to outrageous conduct, my concern is this: If we come to a place where the information on the computers contains attorney/client privilege, that is, if it’s gone, how does this court determine if it compromised defense?”

Petersen: “It is important to note that Mr. Wuerfel is a seasoned lawyer and has insisted from the beginning in participating in his own defense. A lot of ideas and strategies were exchanged between the both of us, sending messages back and forth between the Petersen and Wuerfel law offices. It’s not a one-way street like you normally have in a lawyer/client situation.”

Moorman: “We need to get to the bottom of whether it’s even usable or not.”

Killion: “Forensically, they call it cloning. The court has those drives.”

Petersen: “If it’s corrupted, we’re prejudiced; if law enforcement has it and we haven’t...”

Moorman: “Well, then, what are the parties suggesting I do with this hard drive I have?”

Killion: “I’d suggest it go back to Mr. Neary.”

Petersen: “I thought Mr. Neary took it back already.” (Godot: I thought you had it, Pozzo.

Pozzo: Nope. I gave it to Estragon.)

Killion: “I don’t know.”

Moorman: “I’m going to enter an order at this time. Mr. Killion, if anyone has any information in the case that person is not to divulge it to anyone but Mr. Neary or me. That leaves a couple of things: One thing that would be helpful to me is an inventory of what was taken. If there is any I’d like to know where it is.”

Judge Moorman had asked for the elusive inventory before. Still, nobody knows where it is.

Moorman: “In every search warrant I’ve been involved in — in 25 years — there’s been an inventory of what was taken. Mr. Killion, I’m going to order you to see if there are any outstanding documents, and if there are, I want you to produce them.”

Mark Wuerfel said an item, number 41 [did he have an inventory?], was missing.

Moorman: “Mr. Wuerfel is representing to me that two boxes are missing taken in ’08?”

Killion: “Have you made a request for the items?”

Wuerfel: “I’ve asked over and over again. Can I just cut to the chase, Your Honor?”

Wuerfel tends to take the long way. Allowing him to 'cut to the chase' means another layer of....

Moorman: “You may not, Mr. Wuerfel.”

Wuerfel does a lot better with the judge if he lets his lawyer, Justin Petersen do the talking.

Petersen: “The reason we have not made the formal request is because local law enforcement doesn’t have them, the DEA does.”

Killion: “My plan is to get in touch with Agent Beau Bilek and see what they have.”

Moorman: “Alright, Mr. Killion, just to wrap things up, I’m going to request of you to present me with these documents and supply me with a report as to what the DEA has in its possession.”

Petersen: “I would like to see some chain of custody so we know who’s seen what we’re getting back. I trust Mr. Killion and the DA’s office, but I don’t know any of these other people.”

Moorman: “Okay, we need to come back soon. As soon as I get this information I’ll set another date.”

Round and round it goes, the Wuerfel Whirl.

* * *

It was about 8pm on April 22nd, Good Friday. The location was a pre-War Boonville motor court on Anderson Valley Way since converted to six-high bunks per cabin for Mexican farm workers. They each pay upwards of three hundred a month for the privilege of living more or less indoors. Locals call the place Little Tijuana or Tijuanita.

It seems that Carlos Sanchez had pulled a gun on one of the other residents, Mario Rodriguez-Andree. When Aldo Aguilera threatened to call the cops, Sanchez threatened him with the gun, too.

When Deputy Squires arrived, Mario and Aldo were standing in Tijuanita's pot-holed driveway with their hands in the air like they were being robbed.

And Carlos Sanchez was placing a shotgun in the back of his van.

It was never fully established what caused Sanchez to go for his gun, but the deputy said it had something to do with the crucial fact that the guys with their hands in the air were from Michoacan and the guy with the gun was from Vera Cruz. These kinds of disputes tend to occur when the male of the species is found in groups. With beer.

Mr. Aguilera took the stand in a brief prelim last Thursday to say that he saw Mr. Sanchez pointing the gun at Mr. Andree and went to get his cell phone to call for help. At this point, Sanchez pointed the gun at Aguilera and asked if he wanted trouble too. The witness was testifying in Spanish with Timothy Baird, the court certified translator interpreting his words.

Deputy DA Rayburn Killion asked Aguilera if he knew what kind of a gun it was.

“Un chaquetera,” the witness said.

“A weapon with cartridges,” Mr. Baird translated.

Killion wanted to know if the witness knew the difference between a rifle and a shotgun.

“Si,” the witness said. “It was a shotgun.”

The second witness, Mario Andree said much the same thing.

Mr. Sanchez will be held over until his lawyer Deputy Public Defender Dan Haehl can make a deal with DDA Killion, after which Sanchez, an illegal human being, will be sent home to his beloved Vera Cruz.

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