OAKLAND — The first three days of trial for two ex-Antioch cops have been a roller coast, full of drama and emotional witness testimony, and culminating with the trial’s abrupt end for one of the defendants.
On Wednesday morning, U.S. District Judge Jeffrey White declared a mistrial in the case of Devon Wenger, a former Antioch policeman charged with conspiracy to violate the rights of Antioch citizens and one count related to allegedly using excessive force. The trial will continue for Wenger’s co-defendant, Morteza Amiri, who faces charges of conspiracy and illegal use of his police dog on various people.
The mistrial means that the prosecution against Wenger will proceed separately, at a to-be-determined date. Wenger also faces unresolved steroid distribution charges, tentatively set for trial in April.
White’s decision followed a lengthy closed proceeding, in which everyone except for attorneys and the defendants were locked out of the courtroom. But a series of back-and-forth court filings between White and the Los Angeles-based law firm representing Wenger may offer some insight into this trials untimely end.
Repeatedly on Tuesday, Wenger’s attorney, Nicole Lopes, complained that prosecutors had been sluggish in handing over evidence and material — known as discovery — that she needed to effectively defend the case. Lopes also said that she was a one-person operation defending her client, without the cadre of other attorneys and assistants that the federal government and even co-defendant Amiri enjoyed.
At one point Tuesday morning, White acknowledged that she might be at a “slight disadvantage” without federal prosecutors moving more quickly to pass along information to Lopes, noting that the U.S. Attorney’s Office has a far bigger staff.
“You need to move this along,” White told the government’s attorneys.
But later in the day, White appeared to grow less patient with Lopes’ repeated remarks about being shorthanded. He ordered her to detail – in writing – the material not being provided by federal prosecutors, and to do so by 7 a.m. Wednesday.
As for the fact that she was the only person working on Wenger’s case, White said simply: “That’s your problem, not mine.”
“Get some of your partners up here and work on it,” White said, while also praising Lopes’ defense as “very effective so far.”
But Tuesday afternoon, White followed his remarks with a court order to the head of the firm Lopes works for, ordering the founding partner, Bill Seki, to justify “why Ms. Lopes has not been supported,” and to make clear how Seki plans to remedy the situation.
Seki responded later that day by saying that was impossible. He said the firm had undergone recent management shifts, had only two lawyers with criminal experience — himself and Lopes — and that he was dealing with a family emergency and unable to attend in person.
White fired back with a second order, stating Seki’s response had been “too vague to fully address the Court’s concerns.” Seki then responded by stating he was putting a paralegal on a plane to Oakland, to arrive Wednesday by 9:10 a.m., and that an investigator would be made available for Lopes as well.
But the extra staff turned out to be unnecessary. At the start of court Wednesday, a visibly distraught Lopes had a sidebar with White and prosecutors, which was followed by White clearing the courtroom. After a delay that took up most of Wednesday morning, White called jurors back into the room and told them they were done for the day.
When they left, he instructed the attorneys to come up with an instruction, something that could be read to the jury to explain that Wenger was gone but that they aren’t supposed to guess why. The concern now is that the sudden shift could affect Amiri’s right to a fair trial.
Amiri and Wenger were among 14 ex-East Contra Costa cops indicted in August 2023 for a range of alleged crimes, but this case is by far the most serious. Amiri was convicted last year of conspiring with other officers to illegally acquire pay raises offered to city employees who get college degrees, by paying a Pittsburg cop’s wife to take college classes for them.
The indictment against Amiri and Wenger alleges that they conspired with a third officer, Eric Rombough, to injure, oppress and threaten the people of Antioch. Rombough has pleaded guilty and is expected to testify for the government, which has already shown jurors texts between the officers where they joke about using violence and make crude remarks about colleagues and arrestees.
Wenger has long maintained his innocence, arguing that not only did he not commit these crimes but that he’ll be completely vindicated at the end. He considers himself a victim of shady practices within the Antioch Police Department to suppress and even retaliate against officers who spoke up against the misdeeds of others, including raising alarm bells about Rombough’s use of excessive force, as well as a police lieutenant who had an affair with Wenger’s then fiancée, then illegally searched her name using a confidential police database.
After court was over Wednesday, Lopes reiterated that her client is innocent. She pointed out that Wenger resigned amid his claims of unfair treatment, and took issue with prosecutors’ statements mentioning Wenger, Rombough and Amiri in the same breath, pointing out that none of the three ex-cops were present during any of the alleged instances of excessive force.
“They made it seem as if … they all acted together,” Lopes said.
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