Shoreline drug trafficking suspect wants his case dismissed

EVERETT — If drug detectives have it right, James Painter is a big catch.

The Shoreline man, they say, is a crafty and accomplished drug trafficker. At 29, he allegedly presided over a drug organization that sold heroin by the pound in Snohomish County and shipped millions of dollars to Mexico’s Sinaloa drug cartel.

Painter reportedly kept stash houses, laundered his profits and was ruthless in cutting ties with customers whenever they were arrested. Twice in recent years the cops opened investigations with few results.

Then in 2013, the Snohomish Regional Drug and Gang Task Force developed an informant. They got close enough to build a case with monitored sales and secretly recorded phone conversations. When the raids came in January 2014, detectives scooped up 26 pounds of heroin and close to $500,000 in cash.

Painter, who has prior drug convictions, is scheduled for trial in November, charged with six felonies, including drug trafficking and money laundering. On Friday, his attorney, John Henry Browne of Seattle, told a Snohomish County Superior Court judge that should not be allowed.

Browne has filed a motion to dismiss. He alleges his client’s rights to a fair trial were irreparably damaged by task force detectives when they listened to recordings of phone calls the defendant placed from jail shortly after his arrest.

At least one of those calls was with Painter’s former attorney, David Gehrke, of Des Moines. Listening to that call was a violation of attorney-client privilege, Browne said. He contends the breach of his client’s constitutional rights was so damaging that dismissing the charges is required.

“The case is very messy,” he said.

Prosecutors see it differently.

They filed affidavits describing how detectives alerted prosecutors about the jail recordings including Painter’s conversation with Gehrke and the steps that were taken to not only contain that information but also alert the defense.

At the time, the deputy prosecutor handling the case was Janice Albert. Lisa Paul is now assigned to the case.

On Friday, Paul said the questions now being raised by Browne were settled when Gehrke was representing Painter. The parties even appeared before a different Snohomish County judge in April 2014 to make a record.

In support of her position, Paul included an email that Gehrke wrote to Albert at the time. In it, the defense lawyer described reviewing the problematic recording and concluding it was a “‘no harm, no foul’ situation” for Painter.

“Stuff happens,” Gehrke wrote. “I was impressed that the detectives promptly notified you that they thought they were listening to a privileged call, and equally impressed with the efforts you took to protect and isolate the recording, as well as letting me know.”

Browne said that settled nothing.

If the court finds an attorney-client violation occurred, case law requires prosecutors to prove beyond a reasonable doubt — the same standard necessary to convict someone of a crime — that the defendant’s fair trial rights were not compromised.

Browne said Painter hired his firm because he was dissatisfied with Gehrke’s reaction to the eavesdropping. He also said the record needs clarification on whether the April 2014 court appearance happened before or after Gehrke left the case.

Paul subpoenaed Gehrke and Albert to Friday’s hearing so they could testify, if necessary. That plan was abandoned however, after Browne said having Gehrke testify would further undermine the attorney-client relationship between Painter and his former lawyer. Having Albert testify, meanwhile, could make her a witness in the case and create a legal situation requiring the prosecutor’s office to withdraw from it, he said.

Browne also suggested there may be questions about how much contact Paul has had with the problematic recordings and any memos detectives wrote about the incident. The deputy prosecutor earlier this month was the focus of a multi-day inquiry into whether she had violated the fair trial rights of a man charged with child sex crimes. In that case, Paul had reviewed emails the man had traded years earlier with a divorce attorney believing she had permission, something the defense denied. Superior Court Judge Michael Downes reviewed all questioned emails himself before ruling that man’s trial rights were not compromised.

The motion in Painter’s case is being heard by Superior Court Judge Millie Judge.

She set another hearing for early next month. Careful review of the facts and relevant law is necessary, she said.

“It is a serious case with serious charges and we want to get it right,” she said.

Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews.