OAKLAND — As Antioch’s lengthy police corruption scandal draws to a close, a federal judge has added another twist to the saga, dismissing a felony charge against a former Antioch officer who has long-maintained that this case and a successful steroids prosecution were retaliation for him attempting to expose police corruption.
On Tuesday morning, Senior U.S. District Judge Jeffrey White dismissed a deprivation of rights charge against Devon Wenger, who still faces a charge of conspiring with two Antioch-officers-turned-felons to deprive the civil rights of people they came across in their jobs. White held off ruling on a defense motion to throw out the conspiracy charge until after Wenger’s trial, meaning that even if a jury convicts Wenger, the judge may overrule it.
The decision is only the latest stunner in the federal government’s prosecution of Wenger, a former Sonoma County Sheriff’s deputy and military combat veteran in Pakistan, who was one of 14 ex-Antioch and Pittsburg officers rounded up and charged in August 2023. Wenger is the only remaining officer whose case remains unresolved. Along the way he has gone through several defense attorneys, publicly accused various government officials of corruption and claimed repeatedly to have been targeted for his status as a “whistleblower” of excessive force and sexual harassment at the Antioch Police Department.
“I broke the blue wall of silence and spoke out against law enforcement corruption and now those same people are targeting me and prosecuting me for doing the right thing,” Wenger wrote last May 23 in an email to President Donald Trump, U.S. Attorney General Pam Bondi, and other government officials, which copied this news organization on the message. He later accused White, the judge who dismissed the charge, of “jury tampering, misconduct, and failure to address prosecutorial retaliation in my federal whistleblower case.”
But on Tuesday, White agreed with Wenger’s lawyers who argued the federal government failed to prove that Wenger committed a crime on Oct. 26, 2021, when he shot 31-year-old Dajon Smith with a less-lethal rubber round launcher. At the time, Smith was surrounded by police next to a suspected stolen car with raised hands, but arguing as officers yelled “put your hands on your head.”
Prosecutors and defense attorneys stipulated that Smith had stolen a vehicle from a dealership in East Contra Costa hours earlier.
The case boiled down to video of the incident and dueling theories by defense and prosecution experts on police use of force. One of the expert witnesses was originally hired by federal prosecutors, who changed their mind about calling him as a witness, then he ended up on Wenger’s witness list, according to court records, suggesting his professional opinion may not have comported with the prosecution’s theory.
The conspiracy charge is built on text messages exchanged between Wenger and ex-Antioch officers Morteza Amiri and Eric Rombough. Last March, a jury convicted Amiri of deprivation of rights and falsifying records for unleashing his dog, Purcy, on a man during a traffic stop in Antioch, but acquitted him of conspiracy and other deprivation charges. Rombough, who was described by Wenger’s former lawyer as the most violent of the three, took a plea deal and became a government witness with the hope of leniency.
Wenger was supposed to go on trial with Amiri, but just two days in, his lawyer, Nicole Lopes, insisted on a mistrial blaming her law firm and struggles with mental health. After she appeared on a podcast bragging about getting Wenger a mistrial when White had denied a motion to sever the co-defendants, White accused her of a “lack of candor” to the court and kicked her off of Wenger’s case. A new lawyer from Los Angeles, Michael Schwartz, has taken on Wenger’s defense.
Wenger was convicted in May of distributing steroids, based on text messages, the testimony of another former Antioch officer, Daniel Harris, who admitted to selling steroids to several law enforcement officials. In the email to Trump, Bondi, and others, Wenger accused White of ignoring “manipulation” by technicians working for a Contra Costa District Attorney investigator “to inject text messages not native to my phone.” Wenger still faces sentencing in that case, regardless of how the civil rights trial pans out.
Prosecutors and defense attorneys are scheduled to make their closing arguments on Wednesday, court records show. The jury instructions make it clear that they only have one charge to decide on now.