Hyer pleads not guilty

COURT: Attorney says arrest result of entrapment by 'political mentor'

The OlympianMarch 9, 2010 

  • HYER RETURNS TO COUNCIL

    TuesdayÂ’s Olympia City Council meeting marked the return of Councilman Joe Hyer, who took an excused absence from council meetings since shortly after being arrested Feb. 18 on suspicion of dealing marijuana . In a brief interview, he said he has resumed attending council meetings but will reassess his council assignments in conversations with his colleagues.

Olympia City Councilman Joe Hyer pleaded not guilty to three drug felonies Tuesday, and his attorney suggested in a court filing that "a trusted political mentor" of Hyer entrapped him into selling marijuana twice while the mentor was working as an undercover informant.

“Judge Pomeroy, I plead not guilty to all charges,” Hyer said during his arraignment Tuesday on two counts of unlawful delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver, each a class C felony.

Hyer, 37, was arrested at his Legion Way home last month by detectives with the Thurston County Narcotics Task Force, after a confidential informant wearing a wire purchased marijuana from Hyer twice during controlled buys in February, court papers state. Both of the alleged marijuana purchases occurred at Hyer’s home, according to the papers.

A motion filed by Hyer’s attorney, Ken Valz, to prohibit further pretrial publicity in the case suggests that Hyer knows the identity of the informant he sold marijuana to, and that the person is the only one Hyer ever sold marijuana to.

According to the probable cause certificate filed by prosecutors in court after Hyer’s arrest, Hyer told detectives he sold marijuana but only to close friends.

“Based upon investigation by defense, it appears that there was no ‘confidential informant’ but instead, one person was obtaining marijuana from Mr. Hyer, and that person was an older, trusted political mentor of Councilman Hyer. Unknown to Hyer, this ‘friend’ had concealed a criminal background from Hyer and the public during his ‘friendship.’ This ‘friend,’ over a period of several months, lured and induced Councilman Hyer to commit a crime that Hyer would not otherwise commit except for the influence of this ‘friend.’ ”

The motion continues: “This ‘friend’ was able to persuade Hyer to transfer marijuana to this ‘friend’ by persuading Hyer that this ‘friend’ needed the marijuana due to the ‘friend’s’ ‘depression’ and ‘sexual needs.’ Based upon defense allegation, it appears that this ‘friend’ was able to persuade, lure and induce Councilman Hyer to transfer no more than a total of less than 14 grams of marijuana during the entire police operation.”

Law enforcement officials were alerted to the possibility that Hyer might be involved with marijuana after an anonymous informant came forward to Thurston County Sheriff Dan Kimball, Kimball has said. Valz’s motion does not state whether Hyer thinks the informant who went to Kimball is the same person to whom Hyer sold marijuana.

According to Washington law, entrapment is an affirmative defense that can be used when “the criminal design originated in the mind of the police officer or informer, and the accused is lured or induced into committing a crime he had no intention of committing.”

A uniform jury instruction for the defense of entrapment states that a defendant can be acquitted because of entrapment only when it is proved to a jury by the “preponderance of the evidence” standard. The preponderance of the evidence standard means that a jury “must be persuaded, considering all the evidence in the case, that it is more probably true than not true.”

The jury instruction for an entrapment defense continues, “If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.”

The jury instruction states that entrapment “is not established if the law enforcement officials did not more than afford the defendant an opportunity to commit a crime. The use of a reasonable amount of persuasion to overcome reluctance does not constitute entrapment.”

Valz’s motion, filed after Tuesday’s arraignment, requests that the court prohibit the state from “disseminating allegations about the defendant and this matter to the media.”

“From the beginning of this matter, representatives of the plaintiff have engaged in an almost hourly feeding of inside information and evidence about this case to the media,” reads the motion. “In fact, only the deputy prosecutor assigned to this case, Scott Jackson, has had enough sense to keep quiet.”

Valz’s motion also mentions numerous alleged “misleading” statements given to the media about Hyer’s case, including that “(d)etectives found small amounts of packaged marijuana in Hyer’s home.” Valz’s motion states that “the entire search of Hyer’s home yielded a total of less than 40 grams of marijuana (a misdemeanor amount) and a four-inch plant that was unable to produce any usable marijuana.”

Prosecuting attorney Jackson has said in a previous interview that the weight of the marijuana in question does not affect the charges against Hyer, because the charges of selling or intending to sell marijuana are class C felonies regardless of the quantity.

Finally, Valz states in the motion that he “does not want a change of venue to be forced due to unfair and inaccurate pretrial publicity by the plaintiff.”

During Hyer’s arraignment Tuesday, Thurston County Superior Court Judge Christine Pomeroy ruled that Hyer can remain free. He posted $20,000 bail after his arrest on Feb. 18.

Hyer, who attended Tuesday’s arraignment with family and other supporters, did not respond to media questions after the hearing.

Hyer co-owns two downtown Olympia businesses, The Alpine Experience and Olympic Outfitters, both outdoor sporting goods stores. Before his recent criminal case, Hyer had been the top choice of the Thurston County Democrats’ executive committee for county treasurer. He has served as an Olympia city councilman since 2004.

According to Hyer’s Web site for election to the Olympia City Council, he is a 1991 graduate of Tumwater High School and a 1994 graduate of Pacific University in Oregon. He worked for nine summers as a summer camp counselor for the Boy Scouts, according to his Web site.

Jeremy Pawloski: 360-754-5465

jpawloski@theolympian.com

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