EVERETT — A Shoreline man accused of being a major heroin trafficker in Snohomish County lost a bid this week to see the charges against him dismissed over his claims that police and prosecutors violated his right to a fair trial.
At issue was the privacy of jailhouse telephone calls made by James Painter, 29. The calls were recorded, including some discussions with his lawyers.
Painter’s defense attorney, John Henry Browne of Seattle, said his client’s rights to a fair trial were irreparably damaged last year by detectives who listened to a recorded phone call the defendant had with another lawyer who was then handling his case.
Browne said charges should be dismissed, or in the alternative, Snohomish County prosecutors barred from handling the case.
Superior Court Judge Millie Judge on Thursday turned down both requests.
That happened after the judge conducted unusual hearings across two days that saw detectives and deputy prosecutors questioned on the witness stand about what they did and didn’t do with the recordings.
Prosecutors allege that Painter ran a drug organization that sold heroin by the pound and shipped millions of dollars to Mexico’s Sinaloa drug cartel. The Snohomish Regional Drug and Gang Task Force developed an informant and built a case that reportedly includes court-approved wiretaps and a deep dive into Painter’s finances.
When he was arrested in January 2014, detectives scooped up 26 pounds of heroin and close to $500,000 in cash. Painter has been jailed since, facing a half dozen felony charges, including drug trafficking and money laundering.
Not long after his arrest, Painter placed jailhouse calls to David Gehrke, the defense attorney then working on his case.
Painter was told how to make a secure phone call to his lawyer, but opted to contact his attorney as he did, despite recorded warnings that his call was being monitored, deputy prosecutor Seth Fine told the judge.
Browne said the recording captured discussion of legal strategy and the strength of the prosecution’s case.
“The attorney-client privilege was violated,” Browne said.
The county jail provided task force detectives with a disc of recorded phone calls Painter made from behind bars.
Detectives Robert Cracchiolo and Jarrod Seth testified Wednesday that hearing a call between Painter and Gehrke did not affect their investigation. They told deputy prosecutor Janice Albert about what they’d done.
On the witness stand Wednesday, Albert testified she told the detectives not to say anything more about the call. She ordered them to write statements and seal them in an envelope along with the disc including the phone call. She also testified about telling them not to work on the case until she addressed the issue.
“I never opened the envelope. I never listened to the tape,” Albert testified.
She alerted Painter’s attorney and provided him with the recording.
Gehrke listened and later concluded it was a “‘no harm, no foul’ situation” for Painter, according to court papers. He also wrote an email saying he was impressed with the efforts detectives and prosecutors made to alert him and contain any potential harm.
Browne said there was no record Gehrke ever spoke to Painter about the call or asked him his opinion.
The case is now being handled by deputy prosecutor Lisa Paul. Browne said she compounded the problem by opening the envelope Albert avoided.
Fine called Paul to testify Thursday. She acknowledged unsealing the envelope as part of her review of the case, but said she stopped short of examining the contents.
The judge reviewed the problematic recording for herself.
She said there were no confidences or secrets on the call or information that would have helped prosecutors and police. She also concluded that there was no active attempt at misconduct.
“I find no prejudice and for those reasons the motion is denied and this case can proceed to trial,” Judge said.
That’s now scheduled for early next year.
Eric Stevick contributed to this report.
Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews.
Talk to us
> Give us your news tips.
> Send us a letter to the editor.
> More Herald contact information.
