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.