Clean Water For Indians

by Bruce McEwen, June 29, 2011

The local marijuana community is ecstatic over the DA’s dropping of pot charges against Mark and Dana Wuerfel. If you came in late the Wuerfels are attorneys who have presided over a large-scale pot grow on Spy Rock, northeast of Laytonville. The Weurfels have claimed their marijuana business was a medical grow aimed at providing potable water for Mendocino County Indians. The cops who raided them say the Weurfels are straight-up crooks and the Indians have clean water, thank you very much.

The Mendocino Environmental Center's house organ is a tabloid-size sheet called The Mendocino Country Independent. It's an occasional publication begun by the late Richard Johnson, a notorious local deadbeat much admired unto the grave by the local deadbeat community. Annie Esposito, the strangle-voiced former KZYX press release reader, celebrates Wuerfel's alleged legal triumph in the current edition of the paper.

“Judge Ann Moorman ordered the return of the Wuerfel’s property held by the DEA (Drug Enforcement Agency). There were confiscated vehicles, arms, marijuana, and the property [a laptop computer] involving the lawsuit.”

Judge Moorman did no such thing.

What Judge Moorman ordered were some seized documents and electronic data returned to her court. The laptop had already been given back to Wuerfel.

“Wuerfel told the court that the stumbling block in the previous attempts at a settlement had been just that — the return of their [the Wuerfel’s] property. The laptop in particular. This seems to tie the whole complicated case, three arrests and all, into a neat bow.”

What Wuerfel actually said to the court was, “Can I just cut to the chase, your honor?”

“You may NOT, Mr. Wuerfel,” the judge declared.

Ms. Esposito seems to have gotten her ribbons-and-bows metaphor from Judge Moorman’s comment to Deputy DA Ray Killion, “Alright, Mr. Killion, just to wrap things up, I’m going to require you to present me with those documents seized from the Wuerfel law offices and a report as to what the DEA has in their possession.”

Maybe Ms. Esposito only got the words “wrap up” and “present” down in her notes. Johnson, the MEC's apparent patriarch, would sit for hours but only manage one or two key words in his notebook. Esposito seems to have studied with the minimalist master.

Esposito based her report on Mark Wuerfel’s endlessly obfuscating bluster.

“Under Judge Moorman, the case has become a strong statement supporting defendant’s rights...”

In fact, Her Honor never ordered any marijuana, firearms or vehicles returned and the real “stumbling block” was not Wuerfel’s demands for his dope, guns and toys back — much less the return of the laptop, which was given back long ago.

The obstacle was DA David Eyster’s reluctance to let an impudent lawbreaker walk.

In the end DA Eyster relented, issuing a formal statement through his press secretary Mike Geniella: “In my experience, the success or failure of certain prosecutions often depend on how efficiently such matters are handled after being submitted to the DA and, if filed, how timely they move through the criminal justice system. When cases languish for months, if not years, the prosecution side of the equation is rarely improved, and, more often than not, harmed. The Wuerfel cases are examples of matters that languished in years past. Trying to recover from such delay was, in my opinion, not cost-effective nor would it ultimately serve the interests of the citizens of Mendocino County. If a future case is submitted regarding one or more of these same defendants, such a case will be considered on its own merits and, if filed, handled in a more expeditious manner. My hope is that I don’t see the name Wuerfel come back across my desk.”

Translation: “I inherited this mess and other hoary debacles from my predecessor. The Wuerfel case was old when I got it and got older because Wuerfel, an attorney, was able to confuse things to his benefit. If he comes to my attention again I'll nail his jive ass. Count on it."

Wuerfel swaggered out of the Courthouse last Monday with an I-told-you-so smirk on his face and probably went straight to get his bar card renewed. All this time he’s been flashing it to the security personnel while slyly concealing the expiration date with his thumb. They let him slide because they anticipated the outcome. By any measure of professional courtesy, however, Wuerfel should have submitted to the drill of emptying his pockets and removing his belt like the rest of us since he was appearing as a defendant and not an officer of the court. But not Mark Wuerfel; oh, no: he’s too important for that. He’s one of the elect, a member in good standing of the privileged class that soars high above the law, the California State Bar and Doobie Association.

* * *

Nancy McGinty set her house on fire last Christmastide, and would have burnt her crippled son and everyone else in their Willits neighborhood to a yuletide pile of ash had it not been for the plucky action of a neighbor who called 911 and dashed into the burning house to rescue the son, a paralyzed adult. (The County needs to institute some kind of award for these citizen acts of civic valor.)

The consensus is that Old Lady McGinty is crazy. So it was no surprise that she has been ordered to undergo a psychiatric evaluation before she stands trial for attempted murder and arson.

What is surprising, however, is that nobody seemed to think of it until the last minute, as it were, just a few days before the trial was to begin. Let me rephrase that: It’s surprising to anyone but a lawyer. To a lawyer, it is standard operating procedure to wait until the last minute; that way the whole trial can be put off for another month or two, and the client or county billed for more hours.

And so it happened that on the eve of Ms. McGinty’s trial that the unfortunate woman's lawyer, Public Defender Linda Thompson, announced that she thought her client might be nuts and requested a psychiatric evaluation. This will take a couple of weeks. Two such evaluations are necessary in these kinds of cases. Then, after both reports are in, a new trial date can be set. Until then, there’s nothing to do but wait.

And the waiting continues in a number of other cases as well.

Everyone is still waiting to see whether Timothy “Coke” Elliott will be granted a new trial in the Sam Billy homicide. We’re also waiting to see whether Noah Shinn will be arraigned for the murder of Timothy Burger who was shot and killed by a woman in self-defense when Burger and two other guys ran into her Laytonville house in an attempted home invasion robbery. Noah Shinn is alleged to have orchestrated this fatal expedition. And we're still waiting for the trial of Phillip Frase, accused of killing a Laytonville man, Steven Richard Schmidt, and a Siskiyou County woman, Patricia Katherine Joseph of Fort Jones in marijuana-related events.

An answer did come back however in the Hugo and Judah Cruz case however.

On Friday, Judge Henderson announced that he was gong to deny the motion to suppress the evidence, a couple of golf ball-sized bags of methamphetamine. The Cruzes, you may recall, were arrested with substantial amounts of methamphetamine after deputies rammed their car as they attempted to leave the scene of their arrest in North Ukiah.

Judge Henderson hates meth and he wasn’t likely to let the Cruzes get off on a technicality, even though one of the defense lawyers, Al Kubanis, told the judge that he couldn’t deny the suppress motion, that he had to grant it.

There’s an old jailhouse saying that you never tell a judge he can’t do one thing or that he must do another.

The hearing on the motion to suppress took place quite some time ago, but near the end of it one of the defense lawyers, the flamboyant cowboy lawyer Richard Petersen, fell ill and was forced to retire. Then Al Kubanis went on vacation.

Finally, last week, the judge decided to deny the motion.

The defense was attempting to prove that the arresting officers, Sergeant Bruce Smith and Deputy Jim Wells, had deliberately rammed the get-away vehicle, a Honda sedan, with their big Chevy Suburban undercover vehicle. The hearing lasted several days and was covered in these pages early this spring.

Kubanis said, “I’m a pretty conservative guy, all for law and order and generally on the side of law enforcement, but this was a pretty clear case of the officers lying on the stand.”

Mr. Kubanis told me this in the halls of justice with other lawyers gathered round to listen. Kubanis, taking note of his audience, embellished his lecture with references to case law that had the other lawyers nodding and grunting in agreement. But the judge’s decision stood and the trial date is set for sometime in October.

The trial of accused child molester Richard Kruse is set to begin this week, but there’s still a chance — there’s always a chance — that it could be delayed yet again. That seems to be the way things go in the legal system — never do today what can be put off.

Joseph Hoaglen of Covelo narrowly missed going back to prison for his violent temper when drunk. Apparently he has a long record of drinking and fighting. He had been to San Quentin and was on parole, not to mention probation, when he got to drinking and started another fight. This landed him in jail and the prospect of a return to the big house was looming. His grandmother, his parole officer, his probation officer, his lawyer, the prosecutor, and the judge were all women and they decided to see if they couldn’t “fix” him instead because Joe's a lamb when he's sober.

Deputy Public Defender Carly Dolan had done some research on Mr. Hoaglen’s behalf and found a tribally sanctioned treatment center called Turtle Lodge she wanted to get him in to. The ladies retreated to Judge Ann Moorman’s office and had a little chat. They were gone quite a while, and when they finally emerged everything was all set. Hoaglen would go to Turtle Lodge for 90 days and complete a 52-week anger management course rather than go back to San Quentin, which is what he seemed to prefer.

Judge Moorman said, “Frankly, I think prison for you is an easier option, and that is why I’ve agreed to this arrangement. I want you to have the tools to get your life back together, but you are going to have to tell me that this is what you want to do.”

Hoaglen thought a moment, shrugged lightly and said, “Uh… yeah. Yeah, I want to try the program.”

But there was a catch. Joe had been in jail a long, long time, and by law couldn’t be sentenced to any more jail time while waiting for a bed to open up at the residential treatment program at Turtle Lodge. He would have to waive his right not to be sentenced to more than a year in the county jail. And, in doing so, leave himself open to a very long stretch in state prison should he fail to finish the program.

Moorman said, “I’m pretty sure that if you go back to prison for 90 days you’ll get out and soon find yourself in violent entanglements due to drugs and alcohol.”

She was perhaps hoping Hoaglen could show a little more enthusiasm for the program and he got the hint.

He said, “Yeah, I’ll waive the credits and go to Turtle Lodge. They practice Native American ways. I’ve done lots of ceremonies to help others and now I’m ready to step up and take my turn.”

“Okay,” Moorman said. “I’m doing this over the objection of the prosecuting attorney, but it’s your last chance no matter what with you. If you come back on any other violent charge, then… Well, just so you know what you’re in for. So that’s what I’m going to do.”

The judge imposed another six months, on top of almost a year that Joe had already done out on Low Gap Road rather than the three months in the state pen. If he drops out of the program, the women who have given him his last big break will be finished with him for good.

“Good luck,” Judge Moorman said as the guards led Fightin' Joe away.

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