Judge awards $294,282 in attorney fees, court costs tied to OPNET drug raid in Discovery Bay

By Paul Gottlieb 
PORT TOWNSEND — A Jefferson County judge has awarded $294,282 in attorney fees and other court costs to Tim and Steve Fager related to criminal and civil cases involving the former marijuana growers.

Superior Court Judge Keith Harper's Aug. 5 ruling in the civil forfeiture case, which he called part of “a bad chapter” in the history of Olympic Peninsula Narcotics Enforcement Team (OPNET), will be followed by an order finalizing his decision that OPNET pay the award to the Fagers.

That order will direct OPNET to reimburse the $294,282 to the Fagers.

Clallam County Sheriff Bill Benedict said Friday that OPNET county and city law enforcement agencies that participated in the raid could split payment of the award if it comes to that.

They would include Clallam and Jefferson counties and the cities of Sequim and Port Angeles.

Benedict said the U.S. Border Patrol also was a participant, but the agency's liability still must be established.

Benedict would not comment on Harper's ruling, saying there may be further litigation.

The judge's decision stemmed from an October 2009 OPNET drug raid on the Discovery Bay property of Tim Fager.

There, the Fagers had an indoor marijuana grow operation that Steve Fager of Sequim said last week was for medicinal marijuana.

There were 275 marijuana plants and more than 10 pounds of processed marijuana, according to court records.

The raid led to charges of manufacturing marijuana and possession with intent to distribute.

The civil forfeiture case that Harper ruled on, which was related to the drug raid, was filed later in October 2009.

The drug-raid case was thrown out after the late Jefferson County Superior Court Judge Craddock Verser nullified OPNET's thermal imaging and property search warrants in January 2013 in a suppression hearing.

The thermal imaging warrant was executed to detect high electric usage.

The raid hinged on “smell evidence” that OPNET agents had said emanated from the building but that Verser struck on the basis of expert testimony that said such evidence was unreliable.

In February, the state Court of Appeals upheld the decision.

OPNET proceeded with the forfeiture case.

The Aug. 5 award consists mostly of the Fagers' attorney fees incurred in the criminal and civil forfeiture trials.

Those attorneys were Mike Haas, now Jefferson County prosecuting attorney, and Seattle lawyer James Dixon, who commandeered the proceedings that led to the Aug. 5 ruling.

The two split duties in the criminal case, but Dixon handled the civil case when Haas took office.

Haas said last week he is owed “about half” of his $180,000 bill, while Dixon said he is owed about $5,000 of the $93,000 he charged the Fagers.

“[The award] is designed not only for the attorneys to be paid but for the claimants to get back the money they paid or have been obligated to pay,” Dixon said last week.

In his ruling, Harper said he agreed with “virtually everything” that was contained in the Fagers' brief.

He said lawyers representing OPNET drove up the cost by delaying the discovery process in the criminal case.

“The state got their hair up on its back on this case early on, and took it very, very seriously, and pushed and pushed and pushed, and some people could, I think, believe from everything that's been written, that they made this as difficult as they could on the defendants and the claimants, and all that,” Harper said in his ruling.

“The case ended up where OPNET has absolutely no evidence to go forward with this.

“And it was because of what the claimants did in connection with the suppression hearing and the appeal and everything else.”

It's too early to determine if OPNET will appeal the latest setback in the case, Brian Wendt, the Clallam County Deputy Prosecuting Attorney who represented OPNET, said last week.

“At this time, we are disappointed,” he said.

“We need to study our options, and there will be more to come.”

Haas said he was reluctant to comment on the case because as prosecuting attorney, he works jointly with Clallam County on some law enforcement issues, though Jefferson County withdrew from OPNET earlier this year over manpower funding issues.

Benedict's complaint is with Verser's ruling.

“I sincerely and honestly believe the judge got it wrong,” Benedict said.

“OPNET made mistakes,” he added.

“I am absolutely devastated that the taxpayers are on the hook for this.

“This is not the first time in the drug world where bad facts make for bad decisions, and the taxpayer has to pay.

“A huge part of our constituency wanted us to go after marijuana at the time this happened.”

Steve Fager said last week that the case had nearly bankrupted him and his brother.

His mother's house also was foreclosed on as a result of her helping her sons on the case.

He said she was a medical marijuana patient before she died.

“We never anticipated when this began that it would ever reach the dollars that it did,” Fager said.

“The only reason is because every turn we made there was a roadblock, and we had to go to the court.”

The Fager brothers also went to federal court over the case.

They filed a $20 million civil suit for damages for an alleged cover-up of “egregious misconduct” surrounding the drug raid that was thrown out.

It has been appealed to the 9th Circuit Court of Appeals.