The attorneys for two men investigated on drug charges by a former Contra Costa County drug task force commander filed a motion asking the District Attorney's Office to recuse itself from the case.
The attorneys say that the county district attorney's office has a conflict of interest in prosecuting their clients because it is also prosecuting Norman Wielsch, the former commander of the Central Contra Costa County Narcotic Enforcement Team, on multiple charges involving drug sales and conspiracy charges.
Harold Jewett, senior deputy district attorney, said that that his office plans to dismiss about a dozen cases involving arrests by Wielsch and his team, the Contra Costa Times reported.
Jewett told Patch he and a team of investigators have been revewiewing dozens of cases involving Wielsch, a state Bureau of Narcotics Enforcement agent and former Antioch police officer who commanded the now suspended multi-agency drug task force. The team investigated major drug and weapons cases in central Contra Costa County cities. Wielsch's arrest prompted the review.
"If the integrity of a case is compromised because the integrity of the officer has been compromised, we are going to dismiss it," Jewett told the Times.
This legal challenge from two West County men appears to be the first from defense attorneys on behalf of clients investigated by Wielsch.
Wielsch was arrested Feb. 16, along with his alleged co-conspirator Christopher Butler, a Concord-based private investigator.
Prosecutors have alleged that Wielsch stole drugs from law enforcement evidence lockers and gave them to Butler, who attempted to sell them through an employee working at his private investigations business. That employee almost immediately began cooperating with state agents in an investigation against Wielsch and Butler.
Wielsch and Butler have pleaded not guilty to 28 felony charges, including conspiracy; selling methamphetamine, marijuana and steroids; and possessing methamphetamine, marijuana and steroids for sale.
On March 11, a third person was implicated in this growing investigation. Former Danville Police Officer Stephen Tanabe, 47, was arrested on suspicion of possessing and selling a controlled substance.
An affidavit for a search warrant for Tanabe's residence linked Tanabe to an alleged "dirty DUI" scheme that Butler concocted to tarnish the reputations of men involved in contentious divorce cases.
In some of these cases, Butler allegedly hired attractive women to lure clients' husbands to bars and get them to drink alcohol. He would then call police officers, one of whom the affidavit identified as Tanabe, and get the men arrested on drunken driving charges. In at least one case, Butler allegedly stated that the purpose of the scheme was to "'dirty him up' for a future court case," according to the affidavit.
No criminal charges have been filed against Tanabe, who has since resigned from the sheriff's department, which provides contract services to the Danville police. Furthermore, neither Tanabe nor Butler has been charged with any criminal violation involving the so-called "dirty DUI" scheme.
Citing the ongoing investigation, Jewett declined to say what if any criminal charges either could face in these cases. Jewett also would not say if Wielsch had any knowledge of Butler's alleged attempts to hurt the reputations of men involved in these divorce cases.
While the District Attorney's Office is dealing with investigations surrounding Wielsch, Butler and Tanabe, it is also prosecuting two men investigated by Wielsch.
One is Yongtao Jiang, who is charged with cultivating marijuana and possessing marijuana for sale. The public defender's office is representing Jiang.
Jiang and his co-defendant Kwong Wing Cheng were both investigated by Wielsch's CNET, according to a defense motion.
A California Highway Patrol Officer pulled Cheng over for speeding on Sept. 9, 2009, and allegedly found "a sizable amount of marijuana and cash" in his vehicle.
Cheng was arrested, and the investigation was turned over to CNET.
Wielsch acted as the supervisor and the case agent in the investigation into Cheng, according to the defense motion.
During a search of Cheng's residence in Richmond, officers arrested Jiang as he was allegedly attempting to flee the home.
Inside the home, they found a marijuana growing operation, and Jiang admitted he had been paid $5,000 a month to care for the plants, according to the defense motion.
The defense motion claims that the investigation into Wielsch shows that he repeatedly tampered with evidence when he allegedly stole drugs from law enforcement evidence lockers.
In one case, he replaced methamphetamine he was pretending to destroy with flour and then tried to sell the drugs, the affidavit said.
In other cases, he allegedly swapped marijuana he had with better quality marijuana that had just been seized or he "fluffed up" marijuana being held as evidence with lower quality marijuana to make it look like nothing was missing, according to the motion.
The motion claims that the District Attorney's office should not be permitted to prosecute the case against Wielsch and Butler while prosecuting the case against Jiang and Cheng because there is a conflict of interest, which jeopardizes Jiang's and Cheng's rights to fair trial.
The motion states that the prosecution has refused to share evidence about the Wielsch and Butler case with the defense in the Jiang case that could be exculpatory or used to impeach witnesses.
The motion also states that the district attorney's office has so far refused to share any exculpatory material related to the Wielsch and Butler case in all pending cases that were investigated by Wielsch and other members of the CNET team.
"There is an inherent tension between the prosecution's obligation to disclose Brady materials (exculpatory evidence) to Jiang and the prosecution's desire to protect its prosecution of Wielsch and Butler by restricting dissemination of investigation materials," the motion states.
"We must reluctantly conclude that the prosecution has elevated its desire to protect and preserve its Wielsch/Butler/CNET investigation above defendant Jiang's Brady rights," the motion states.
"Rather than transparency, the prosecution has elected opacity," the motion states. "Rather than impartial justice for Jiang, the prosecution seeks only to preserve its investigation of Wielsch, Butler, Tanabe, and others caught in the ever-widening net of police misconduct."
The defense goes on to state that, "While we strongly support the full and thorough investigation of police misconduct, Jiang's constitutional rights may not be sacrificed by the prosecution to achieve that goal."
Deputy District Attorney Tom Kensok, however, said he did not agree that the office has a conflict of interest in prosecuting the two cases.
"We oppose the motion and we don't see it as a conflict at this time," Kensok said. "We'll continue to evaluate our position as we go along."
Kensok said he believes the office is capable of keeping the two cases separate and said that Wielsch is not a witness in Jiang's case.
As for the allegation that the prosecution has refused to turn over exculpatory evidence, Kensok said he believes the prosecution is in compliance with the law, which requires them to turn over all exculpatory evidence to the defense.
"Counsel can bring a motion if they feel there's something outstanding," Kensok said.
The defense motion will be heard in Contra Costa County Superior Court next week.
— Bay City News contributed to this report.