Pubdate: Sun, 15 Feb. 1998 Source: The Herald, Everett, WA, USA Contact: http://www.heraldnet.com Section: B, Page 1 Author: Scott North and Jim Haley, Herald Writers Note: You can contact Scott North by phone at 425-339-3431 or by e-mail at Jim Haley can be reached at 425-339-3447 or . POT, TRUST, TRUTH IN LEGAL TANGLE Mark Mestel is one of the best defense attorneys in Washington, a veteran of more than 400 jury trials, from multimillion dollar lawsuits to death penalty cases. The compact and muscular Everett lawyer also is an expert in wing chun kung fu, a Chinese martial art known for rapid-fire hand strikes. It's no wonder, then, that in the courtroom, Mestel has a reputation for pulling no punches. Police and prosecutors in Snohomish County learned long ago to regard him with wary respect: Make an error in a criminal investigation, Mestel will exploit the lapse. Lose focus on the witness stand, he'll hand you your head. For most of this decade, Mestel's sidekick has been Dale Fairbanks, a former Sultan police officer turned private investigator. A large man with a warm smile, Fairbanks has an uncanny ability to get witnesses to relax, to talk, to maybe say more than they intended. The skill has led to the identification of murderers and the exoneration of innocent people. The working relationship between Mestel and Fairbanks was so close that, up until a few months ago, the detective-for-hire had an office in the basement of the lawyer's Moose Tower building in Everett. But no more. Their futures and reputations are now snagged in a messy legal tangle resulting from the dismantling of a large marijuana-growing ring that operated in Stanwood and Eastern Washington, starting in 1994. At issue is the credibility of both men and the legality of the federal government's decision to use Fairbanks as a secret informant in the drug case. Mestel had served as an attorney for at least three of the nine defendants charged with conspiring to grow marijuana and to hide drug money in business investments. Area defense attorneys are crying foul over the government's tactics, protesting that Fairbanks' involvement may have breached the confidentiality guaranteed between attorneys and their clients. Prosecutors and police, meanwhile, contend the case is about dope, pure and simple, and argue in court papers that this is a situation where criminals abused their relationship with a respected lawyer to "obstruct justice and perpetrate a fraud on the court and the government." A pivotal hearing to determine whether evidence gathered in the case can be used at trial is scheduled to begin Tuesday in U.S. District Court in Seattle. In 1996, Mestel made a bid to become a state Supreme Court justice. Although he finished third in the statewide election, the attorney drew 127,000 votes and was ranked "exceptionally well qualified" by a majority of Puget Sound lawyers. One of Mestel's campaign billboards stood along I-90 in Eastern Washington, on the property of Greg Haynes, a Warden man now charged in the pot-growing conspiracy. Mestel's relationship to Haynes is now central to the case. Fairbanks has testified in federal court, under oath, that Haynes sent Mestel marijuana, and that the attorney allegedly filed documents misleading judges about who might be involved in the drug conspiracy. Court papers show Haynes, Mestel and Fairbanks met each other in 1994, after Haynes retained Mestel to help him respond to allegations that he had sexually assaulted a north Snohomish County woman. No charges were filed. Later that year, a fire in a barn in Stanwood led authorities to one of the hidden pot farms federal prosecutors allege was run by Haynes. Vehicles found at the scene of the fire connected the blaze to the Eastern Washington defendants. Mestel and Fairbanks worked to keep the Stanwood property from being seized and sold by the government under laws designed to strip drug traffickers of their assets. That civil case concluded in 1995, court records show. Fairbanks became a government informant in January 1996 court records show, after the ring allegedly resumed its activities, setting up shop in an underground pot-growing operation buried beneath an alfalfa field at Warden, a windswept hamlet near Moses Lake. The private investigator's integrity has been the focus of a blistering attack by Haynes' current attorney, Allen Ressler, who wants a federal judge to throw out the case against his client. In court papers, he alleged that Fairbanks began sharing secrets about the pot ring with police as early as 1995. The private investigator was promised $150,000 by the government for his work, and detectives "heartily exploited" that relationship, he alleged. "The government's systematic invasion of the attorney client relationship merits dismissal of the indictment," Ressler wrote. In an interview, Fairbanks denied the reward money was a factor in his decision to work as an informant, and maintained that federal agents offered him compensation well after the case began. The reward is not contingent on whether anyone is convicted, he said. Mestel also has publicly weighed in against Fairbanks. At a federal court hearing in August, Fairbanks testified he delivered marijuana from the Warden farm to Mestel at Haynes' request. The investigator also alleged Mestel took legal steps to hide Haynes' involvement in the earlier Stanwood pot-growing operation. Mestel flatly denies the allegations. "He testified that he brought me pounds of marijuana, and it's simply not true," Mestel said. "I have no comment other than the allegations against me aren't true." "Don't you think with my reputation (as a drug-case defense lawyer) that, if they had information I was given marijuana, they'd be down in 10 minutes with a search warrant?'' he added. Mestel, at his own expense, took and passed a lie-detector test in September, denying he received drugs from Haynes, court records show. Early this month, Fairbanks, at his own expense, took a lie-detector test regarding his testimony about Mestel. He, too, passed, according to documents that he showed The Herald but as yet are not part of the court record. In response to the dueling polygraph results, Mestel pointed to transcripts of an October hearing in U.S. District Court, where a judge questioned Fairbanks' credibility after defense attorneys highlighted inconsistencies in the investigator's grand jury testimony. After years of working with defense attorneys, Fairbanks said he's not surprised to find himself under attack. "If you can't try the case on the merits of the case, you try the witnesses," he said. "That's what is happening here." Assistant U.S. Attorney Doug Whalley declined comment on whether federal investigators are looking into Fairbanks' allegations about Mestel. He did note that all but Haynes and one other person charged in the federal drug conspiracy have pleaded guilty and are now awaiting sentencing. One of the defendants who has pleaded guilty is former Mestel client Todd Hollibaugh. Hollibaugh is prepared to testify that he and others in the drug ring conspired to dupe Mestel into supplying the court with documents that hid Haynes' alleged involvement in the Stanwood marijuana farm, according to court papers. Further, Mestel's polygraph results show he had no knowledge that ring members resumed growing marijuana underground after the fire, Whalley said. The attorney-client relationship cannot protect fraud, nor can it protect activity the lawyer knows nothing about, the prosecutor said. Fairbanks' involvement in the pot case surfaced in July, shortly after dozens of federal, state and local law officers unearthed the Warden pot farm and found several hundred plants. Federal prosecutors are involved in the case not only because of the amount of marijuana seized, but also because the defendants allegedly engaged in a large-scale money laundering conspiracy. The case has become a rallying point for the state's criminal defense lawyers. The government's use of a defense lawyer's investigator as a paid informant undermines the presumption of confidentiality that is key to the attorney-client relationship, said Mark Muenster of Vancouver, president of the Washington Association of Criminal Defense Lawyers. Defense lawyers have summoned volunteers to consult with Mestel clients who want an independent evaluation of their cases to determine whether Fairbanks' past involvement gives them grounds for legal action today. "Picture yourself in place of one of Mark Mestel's clients," Muenster said. "You wouldn't have confidence if the government used the same investigator as your lawyer, unbeknownst to your lawyer." The ability of attorneys and clients to freely share information without fear of prying eyes is a cornerstone of the legal system, said Muenster, whose brother, John Muenster, is Mestel's former law partner. "No lawyer can represent clients if he has conflicts of interest," Muenster said. The same is true of the lawyer's employees, including the investigator. "He can't have two masters. He can only have one." For his part, Fairbanks insisted he kept a clear line between work he did on Mestel's cases and work he did on the drug investigation. "I have 27 file boxes for cases that I've worked on since 1989 or 1990," Fairbanks said in an interview. "Each contains many files. I would challenge anybody to find one case -- one -- in which I provided information to any law enforcement agency that was contrary to our client's interests." Fairbanks also said he never was a direct employee of Mestel, and frequently found himself working both sides of a case, at different times. One client, the Snohomish County PUD, has employed Fairbanks for years to help investigate power thefts, the majority of which turn out to involve indoor pot farms. Fairbanks said he has helped law officers prepare search warrants leading to arrests and charges for several people who later became Mestel clients. Fairbanks said he decided to talk with drug detectives about Haynes during the summer of 1995, after the man allegedly became friends with Mestel and then tried to recruit Fairbanks as a security adviser for his pot-growing enterprise. Fairbanks alleged that the final straw came when Haynes put marijuana in his car for Mestel. Whalley said he specifically instructed the investigator in writing that the government was not looking for a snoop inside a lawyer's office. "I instructed him that I do not want to know about Mestel's clients, or any client, except a client who is involved with you in an ongoing crime. Period. I wrote it down and gave it to him to read," Whalley said. The federal prosecutor also said Fairbanks made the legally correct call in notifying authorities about the Warden drug operation. When somebody is approached and asked to engage in criminal conduct, "he has three choices," Whalley said. "He can say, 'No,' and just break it off completely. He can say, 'Yes,' and not tell anybody and become a co-conspirator. Or he can tell the police." Shortly before the case went public, Fairbanks went into the pawnshop business and put aside private investigations for the time being. Fairbanks said he bears Mestel no ill will and regrets the legal fallout. "We both will probably take a lot of personal loss over this, whatever that may be -- business, friendships, acquaintances," he said. At the same time, he's not apologetic for assisting police. "A good friend of mine told me 'You are either part of the problem or part of the solution,' " Fairbanks said. Copyright (c) 1998 The Daily Herald Company, Everett, Wash.