MARTINEZ — She was a striking blonde who spent a lot of time in Hawaii, just like he did. She was an avid Sharks fan, just like him. She said all the right things and made it clear that she wanted him.
“I haven’t had sex in so long,” she cooed on their first date.
Deep down, Dave Dutcher — unassuming aeronautics engineer, father of three, recently split from his wife — suspected that his Match.com sweetheart was too good to be true. And when a wildly flirtatious second date ended in a DUI, Dutcher wondered whether his ex-wife was somehow connected to the woman who had fed him shots and invited him hot-tubbing with an equally coquettish friend.
Then, two years later, a major police corruption scandal centered on a Concord private investigator exploded, and a prosecutor confirmed Dutcher’s suspicions: He had been set up.
Now, on Monday, in a Contra Costa County courtroom, Dutcher will get his first chance at redemption: A judge will consider whether the stain from that night — one of the five cases known as Contra Costa County’s “dirty DUIs” — unfairly tinged his divorce settlement. And prosecutors have also taken the extraordinary position that they will not stand in the way if Dutcher wants to withdraw his no contest plea — two years later — and ask a judge to wipe the crime from his record.
It’s a stunning reversal of fortune for a 49-year-old man who, by his own admission, made a terribldecision to get behind the wheel that night in late 2008 after leaving the Old Spaghetti Factory in downtown Concord.
“I’m ashamed that I let my guard down,” the Concord father said.
A kind of celebrity?
On that night, when his date and her friend flashed their breasts at Dutcher, he said he was as confused as the other men at the bar who wondered whether he was some kind of movie producer.
So when the women left in their two-seat convertible and asked Dutcher to follow, he climbed in his Ford four-wheel-drive pickup. He said he watched them run a red light, just before he noticed a police officer was pulling him over. He was arrested for drunken driving with a 0.12 blood alcohol content. Little did the Concord police officer know that Dutcher was being led into a trap.
But, according to court records, the officer who arrested Dutcher had been tipped off by his acquaintance Christopher Butler, the one-time Antioch police officer and private investigator now at the center of a federal grand jury investigation that is also probing the former Central Contra Costa Narcotics Enforcement Team commander Norman Wielsch and three recently resigned cops from Danville, San Ramon and the Contra Costa County Sheriff’s Office.
The group is already charged by the state for a series of alleged crimes, including selling stolen drug evidence, harboring illegal weapons and threatening witnesses. Butler and former Danville Officer Stephen Tanabe are each charged in connection with the setup DUIs. Dutcher is among the witnesses who have been subpoenaed by the U.S. attorney’s office to testify.
On Monday, Dutcher will try to convince a family law judge that his ex-wife and her former attorney orchestrated his arrest to gain advantage in the divorce and keep him from his children — claims they both strongly dispute.
He wants more time with his kids, a new divorce settlement and accountability for the individuals he believes burned him. Dutcher said the arrest forced him into an unfavorable divorce agreement and that his ex-wife and her attorney used the DUI to keep him from his children.
“What they did was unconscionable and I believe the judgment is illegal,” Dutcher said. “Ultimately, I don’t want to see this happen to any other parents or children.”
Specialized in infidelity
Neither Butler, Dutcher’s ex-wife, Susan Dutcher, nor her former San Ramon attorney Mary Nolan returned requests for comments for this story. But in court declarations, both Susan Dutcher, a Brentwood substitute teacher, and Nolan deny being part of a conspiracy.
Susan Dutcher and her current attorney, Pamela Lauser, disagree that Dave Dutcher’s arrest affected the divorce and child custody arrangement. They also argue that no one forced him to drink and drive. Susan Dutcher acknowledges she hired Butler, who was in the restaurant observing Dave Dutcher that night, but told the court she went to Butler only because she was worried that her husband of 15 years was drinking and driving with her kids in the car.
“Again, there was no plan to set up a DUI arrest; I only wanted Mr. Butler to watch Mr. Dutcher drink and drive so he could report this to the court for the safety and protection of my children,” Susan Dutcher wrote in a declaration to the court. “There was never a discussion with me about Mr. Butler notifying the police if he saw Mr. Dutcher driving after drinking to excess.”
Butler, one of five former police officers who have pleaded not guilty to a 38-count felony complaint, told a DA inspector that Dutcher was the second divorcing spouse of a Nolan client who was arrested for DUI as a result of one of his undercover stings using female decoys. Court records show that Nolan was Butler’s attorney when he divorced his first wife. Dutcher’s date, identified by Butler as Sharon Taylor, was described on Butler’s firm’s website as a former Las Vegas showgirl and casino security operative who specialized in infidelity cases and undercover stings.
Nolan paid Butler by check about $1,500 to track another divorcing man, Clayton contractor Declan Woods, Butler told investigators. Dutcher’s wife paid Butler $2,500 cash, court records show.
The District Attorney’s Office dismissed three pending DUI cases linked to Butler after his February arrest. Prosecutors even went so far as to share transcripts of Butler’s interview about the setups with Dutcher and Woods and advised the two men that they could seek to have their convictions wiped from their records.
“I hope in some small way this information will help you recoup both rights and dignities lost in one of the most deplorable legal practices I have ever heard of,” senior deputy district attorney Harold Jewett wrote in a letter to Dutcher.
Following orders?
For his part, Butler told the district attorney he was only following a client’s orders when he set up Dutcher. His statements to investigators indicate that Susan Dutcher specifically asked that her ex get arrested, and that Nolan wanted it caught on video — a claim that, if true, could implicate Nolan.
“Lawyers getting involved with investigators, there’s a history of troubles there,” legal ethics expert Diane Karpman said, pointing to a well-known Los Angeles case in which entertainment lawyer Terry Christensen was sentenced to three years in prison for conspiring with a private investigator to wiretap a client’s ex-wife. “I think that setting people up, that would be an act of moral turpitude in violation of the rules of professional conduct,” Karpman said.
In a declaration to the judge presiding over the Dutcher divorce, however, Nolan wrote that she was out of town in late 2008 and was unaware that her paralegal at the time had referred Susan Dutcher to Butler until she was contacted by the media for a comment this year. She denies Butler’s claim that she had him video Dutcher’s arrest, stressing that she had nothing to do with it.
“In my opinion, Mr. Butler took advantage of Ms. Dutcher. When they met, Ms. Dutcher was a distressed, anxious … woman,” Nolan wrote. “She was very concerned about David Dutcher’s character and propensity towards various addictions. I believe Mr. Butler presented the ‘sting operation’ as the only way for her to protect her children.”
Family law Judge Charles Burch told the Dutchers in June that he is uninterested in determining whether a crime was committed: He’ll leave that for authorities investigating the scandal.
But the judge is concerned about whether Butler’s role in Dutcher’s arrest was something that should have been known before the couple finalized their divorce.
Dutcher is convinced it was.
“Everything changed after the arrest,” Dutcher said. “Custody went from 60/40 to 90/10, though it’s really more like 4 (percent). My kids are so alienated now, I rarely ever see them.”
