LAW OFFICES OF JASON D. LAMM 6245 North 24 th Pkwy, Ste. 208 Phoenix, AZ 85016-2030 (602) 222-9237 Fax (602) 222-2299 Michael K Jeanes, Clerk of Court *** Electronically Filed *** M. Martin, Deputy 12/4/2015 3:13:44 PM Filing ID 7044677 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JASON D. LAMM # 018454 Law Office of Jason Lamm 6245 North 24 th Pkwy, Ste. 208 Phoenix, AZ 85016-2030 Telephone: (602) 222-9237 Facsimile: (602) 222-2299 Email: jlamm@cyberlawaz.com ULISES FERRAGUT #018773 The Ferragut Law Firm 2 N. Central Avenue, Suite 1125 Phoenix, Arizona 85004 Telephone: (602) 324-5300 Facsimile: (602) 258-4588 Email: ulises@ferragutlaw.com Attorneys for Defendant STATE OF ARIZONA, vs. IN THE SUPERIOR COURT IN AND FOR THE COUNTY OF MARICOPA Plaintiff, LESLIE ALLEN MERRITT, JR., Defendant ) ) ) ) ) ) ) ) ) ) ) 1 CR2015-144211-001 MOTION TO REMAND TO THE GRAND JURY FOR A NEW PROBABLE CAUSE DETERMINATION ORAL ARGUMENT REQUESTED Assigned to the Honorable Warren Granville Defendant, through undersigned counsel, hereby moves this Court pursuant to Rule 12.9, Arizona Rules of Criminal Procedure, to enter an Order remanding this case to the Grand Jury, due to the State s failure to present clearly exculpatory information from the Grand Jury s consideration,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 notwithstanding the fact that said exculpatory information was known to the State and its agents at the time. INTRODUCTION By mid-september of this year, the Phoenix metropolitan area was in a state of panic. On what seemed like a daily basis, reports of motorists being shot at along the I-10 Freeway poured in. Police were desperate. The situation seemed out of control. The community questioned law enforcement s abilities to put a stop to the fear that gripped the community at large. Police had to make an arrest. There was no evidence that Leslie Merritt, Jr. was at the scene of any of the shootings. But police had to make an arrest, and they had to make it stick. They had to look like the good guys who were truly protecting and serving the public. And after they made that arrest, the pressure to make it stick grew exponentially. Particularly when a high ranking government official tweeted We got him! just moments after Merritt s arrest, police knew that no matter what, they had to come up with the evidence even just some evidence. They knew that if they didn t, making important people look bad would be the least of their worries. The people of Phoenix would be back in a state of panic and would realize that the peace of mind which they got from Merritt s arrest was nothing more than a sham, and that the police who had given them that peace of mind had done nothing more than sell them a bill of goods. So when the police took the case to the County Attorney s Office to get formal charges on Merritt, the grift had to continue. They had to deftly continue their game of slight-of-hand, directing prosecutors away from evidence that showed that maybe, they don t got him after all. Without 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 written reports in hand, they verbally sold prosecutors on the fact that their case was solid. Like the people of Phoenix, prosecutors were now getting duped by the police. Prosecutors didn t know about the clearly exculpatory evidence that police were aware of, and in what amounted to a real life game of Three Card Monte, they didn t know that a witness who repeatedly and steadfastly provided an alibi for Merritt only abandoned her account after police lied to her about the existence of evidence that never existed in the first place, and after they threatened to charge her with domestic terrorism if she continued to back him. But as is the case with every con, sooner or later, the jig is up. In the case of the con that was perpetrated on the Phoenix community which resulted in the arrest of Leslie Merritt, Jr., that time is right now. This Motion explores how law enforcement mislead prosecutors and, effectively, made grand jurors wear blinders as they deliberated as to whether or not to indict Merritt, for the sole purpose of making charges against Merritt stick. They did so by insuring that multiple instances of clearly exculpatory evidence were withheld from the Grand Jury s consideration, and by failing to tell its members that a key alibi witness for Merritt caved in on that alibi only after police doggedly challenged her, refused to accept her exculpatory statement as true, and, when they couldn t get what they wanted out of her, threatened her with serious criminal charges if she didn t sing their tune. The sum total of the misconduct by the State, including and by and through its agents, is virtually astonishing. Its result was the infection of the integrity of the Grand Jury process and the judicial system as a whole in that the grand jurors were deprived of the opportunity to hear all of the evidence 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that police had uncovered, and not just the evidence that would make the charges stick. RELEVANT FACTS As the Court should already be aware, the four shootings with which the Defendant is charged are generally summarized as follows: Incident One: August 29, 2015 at 11:03 a.m. A black Cadillac Escalade was travelling eastbound on the I-10 near 19th Avenue when a westbound vehicle alleged shot at it. A bullet broke the windshield and then struck the front passenger window, the breaking glass causing a laceration to the front passenger's ear. Incident Two: August 29, 2015 at 11:05 a.m. A bus was travelling westbound on the I-10 near 43rd Avenue when the driver heard a bang coming from his right side. After driving for a significant period of time, he later stopped the bus and located a bullet hole on its right side. Police subsequently recovered a projectile from a seat inside the bus. Incident Three: August 29, 2015 at 10:20 p.m. A Kia was travelling eastbound on I-10, east of 16th Street and approaching the mini-stack. The two occupants of the vehicle heard a noise and one believed the car was hit by a rock. The Kia did not stop and proceeded to its destination. The following business day, Monday, August 31, 2015, the owner of the vehicle took it to a local dealership. A bullet was recovered from the passenger door panel. 25 26 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Incident Four: August 27, 2015 between 5:00 and 5:50 a.m. In the early morning hours of August 27, 2015, the victim drove his BMW from his home in North Scottsdale to Sky Harbor Airport, ultimately parking in the Terminal 2 garage. He flew to Chicago for a business trip and returned on the night of August 30, 2015. Upon his return, he noticed that his left front tire kept losing air pressure. The next day, he took his car to a local dealership. A service technician located a bullet and jacket inside the tire. The State has alleged that the victim s tire was shot while he was driving to the airport on August 27 th. Subsequent to the Defendant s arrest on Friday, September 18, 2015, law enforcement began working feverishly to obtain forensic data from cell phones with which he was associated. In regard to the timeframes that are relevant to the shootings, and this Motion, two different phones, and two different phone numbers, merit consideration and discussion. 1 (602) 358-1888 (the Obama phone) At the time of the shootings, the Defendant had a Governmentsubsidized cellular telephone, more commonly known as an Obama phone. Obama phones provide users with a limited number of minutes per month. Defendant took the Obama phone with him to work, but at times when he was with his fiancé, Dina Sauceda, he would not carry it and instead, he would use her Verizon phone, discussed infra. 23 24 25 26 1 Both phones are deactivated, thus the numbers are of no use to anyone at this point in time. Any curious thirsts for further information about them will leave interested parties parched. 5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (480) 532-3973 (the Verizon phone) Based on information that has already been proffered under seal, a family member provided that phone to the Defendant and Dina so as to ensure that there is always a working telephone in their possession. Witnesses will testify that when Dina and the Defendant are together, they use the Verizon phone only, and that if people are trying to contact either the Defendant or Dina at a time at which the Defendant is not working, the Verizon phone is the number that they would call. WHAT THE STATE PRESENTED TO THE GRAND JURY During the Grand Jury presentation that occurred on September 24, 2015, the following colloquy occurred: 2 Q. The phone that was used by Mr. Merritt, specifically on August 29 th, there were only three calls through the analysis, you determined that there were only three calls that were placed by that phone that you re able to determine the approximate area where those calls were placed; is that correct? A. Yes. Q. And those three calls do not coincide with any of the timeframes for when the shootings occurred; is that correct? A. That is correct. And based on the analysis that s being has been done on his phone by the Federal Bureau of Investigations, they have through their analysis been unable to exclude that Leslie Merritt, Jr. s cellular telephone was in the area of the shootings on the 29 th. 25 26 2 Grand Jury Transcript p.67 line 6 through p.68 line 1. 6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q. To be fair, they can t say that it was in the area and they can t say that it was not, based on when the three calls were placed; is that right? A. They cannot include him in the areas or they cannot exclude him in the areas. The State was referring to cell site analysis of the Obama phone, undertaken by the Federal Bureau of Investigation on September 22, 2015 - two days prior to the Grand Jury presentation. (See Exhibit 1). As to potential alibi evidence offered by the Defendant s fiancé, Dina Sauceda, as to his whereabouts on August 29 th, the Grand Jury transcript reflects: 3 Q: And that s what she initially told you or other detectives, that on August 29 th they were together; is that correct? A: She basically could not give us say specifically that they were together. She just said that on weekends they are typically together. And that s basically so she couldn t, again, tell us that, well we were specifically together or we were together. She just said that they had to have been together because they were typically together on weekends. Q: Through the course by the end of the interview did she indicate at some point she didn t think they were together on August 29 th? A: Toward the end of the interview, she changed her story about the 29 th and 30 th, and indicated to us that she did not believe that they were together on the 29 th, and that she had she did not have an idea of what he did on the 29 th. 3 Grand Jury Transcript p.64 line 20 through p.65 line 13. 7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 THE STATE DELIBERATELY PRESENTED FALSE AND MISLEADING TESTIMONY RE: DINA SAUCEDA Dina was interviewed by DPS detectives within hours of the Defendant s arrest. A transcript of her interview is attached as Exhibit 2. Not surprisingly, a central focus of the detectives was establishing the Defendant s whereabouts on Saturday, August 29 th, as three separate shootings occurred that day. Throughout her interview, Dina steadfastly told investigators, in response to their questions, that she was with the Defendant on August 29 th. Relevant excerpts of her interview include: Q: Okay. Um, were you with him on August 29 th which would have been a Saturday of this year? A: Most likely, I mean we re with each other all the time. Q: Well it s either you were or you weren t. It s not A: Yeah. Q: most likely. 19 20 21 22 23 24 A: I was. 4 * * * Q: Um, and now getting back to August 29, um, you said that you believed that you were with him all day but you can t recall what you guys did. So to ask you honestly and to be blunt, do you re can you say for absolute certainty that you were with Leslie on 25 26 4 Lines 166-177 A: I know for sure. 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q: Saturday, August 29. A: I was with him for sure for sure. Because if we re not at home, we re together in our car either at my nana s house, my mom and dad s house and that s about it. That s or we go to my tio s house. That s about it. But it s all in one same area. It s not like out there or out there. It's all in one same area. * * * Q: Okay. So were you with him the whole weekend, um A: Yeah. Q: which would ve been obviously Saturday A: The tw Q: the 29 th and A: And Sunday? Q: Sunday the 30 th? A: Oh, the 30th? Yeah I was with him. Q: Okay. And are you absolute, positive, or do you just think you were with him? A: I m - I m pretty sure. That s what I m going based upon. I m pretty sure because, like I said, we re with each other 24/7 besides the times that he s not or the b the time besides that he is at work. 5 * * * 26 5 Lines 392-404 9
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q: Okay. And and at no point do you recall on Saturday the 29 th that you guys weren t together? A: No. 6 * * * Q: Now I gave you two dates August 29 and August 30. And I asked you, At any point was Leslie by himself? And what did you tell me, Oh, no. We re always together. A: Yes. Q: We re always together. A: We re always together. 7 * * * Q: I I don t believe you. A: I understand. I know. Because of how I said we were always together, yes. But... Q: Okay. So then w so then who was in the video with him then? A: I don t know. Okay. If you can show me the video I can I can tell you who is with him if you can. If you sh if you can show me the video, I can tell you who was with him. I can. Q: Okay. 8 * * * Q: Okay. Right now, listen up. There s a thing called a a a a domestic terrorism charge. 24 25 26 6 Lines 417-420 7 Line 1005-1013 8 Lines 1046-1057 A: Yeah. 10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q: Okay? That s what you re looking at. Okay? That kind of includes the whole family. Okay? If you have knowledge of what s going on, I strongly suggest that you tell us right now A: I don t know what s going on. Q: Because you will be included. 9 * * * Q: So just to go back on the 29 th and 30 th, so you now that A: Now that I know what the h- what the sorry. Now that I know what is going on, I wasn t with him. I wasn t. 10 The foregoing excerpts represent just some of the investigators attempts to bully, intimidate, and threaten the witness into recanting the alibi she gave the Defendant. The same excerpts make clear that no matter what the witness said to make clear that she was with the Defendant on August 29 th, investigators wanted to hear none of it as, in their minds, they already had their man. Instead, they lied to the witness and falsely told her that they had video evidence of the Defendant committing the shootings. In fact, they didn t have video evidence of the Defendant committing the shootings, let alone any video evidence of the shootings whatsoever. When the witness remained steadfast in the fact that the Defendant was with her the whole day in question, they threatened her and her whole family with domestic terrorism charges. Using tactics that are charitably described as shameless and focused only upon obtaining a desired result (as 26 9 Lines 1392-1403 10 Lines 1437-1440 11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 opposed to finding the truth), detectives used the witness children as bait, threatening to separate her from them if she would not capitulate and abandon the alibi she had previously and repeatedly offered for the Defendant. The summation of this interview that was presented to the Grand Jury was nothing short of false and misleading. The State conveniently omitted the fact that only after detectives lied to the witness about having videotape evidence and threatening her with criminal charges that she changed her story. While the Supreme Court has held that it is generally permissible for law enforcement to lie to a suspect being interviewed, this rule most certainly cannot be applied to a witness in the instant case. At no time was the Defendant s fiancé ever a suspect. They did not, and to this day, do not have any evidence that she is. If such were the case, detectives would have done things very differently. Among other things, they would have read her Miranda rights, and they would not have allowed her to hold her infant child during the interview. Police did not and do not have any video of the shootings. The only reason they told Defendant s fiancé that they did, was to pry her off the alibi that she provided Defendant for the day of the first three shootings. They weren t looking for her to incriminate herself; they just didn t want her to continue to exculpate him because it did not fit their theory of the case. And when the witness challenged the detectives and asked to see the video, they deflected her request because she had called their bluff. They then upped the ante by threatening her with domestic terrorism charges if she did not resign from the alibi which she had given the Defendant. Once again, police had no evidence that the witness committed any crime, let alone 12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 domestic terrorism. Yet again, their sole mission was to get her to abandon the alibi which she had given the Defendant. Not telling the Grand Jury the means and manner in which the witness recanted what was an otherwise unwavering proclamation of the Defendant s alibi and innocence, was nothing short of a deliberate effort to mislead the Grand Jury in addition to a violation of the Defendant s due process rights. THE STATE INTENTIONALLY FAILED TO PRESENT KNOWN EXCULPATORY EVIDENCE As is noted above, the Defendant used both the Obama phone and the Verizon phone. And while the State only told grand jurors about the cell site analysis of the Obama phone, it nonetheless had actual knowledge of the Defendant s use of the Verizon phone at the time of the incident, yet deliberately failed to the inform the Grand Jury of this fact likely because cell site analysis of the Verizon phone placed the Defendant at or near his home in Glendale at the time of at least Incidents One and Two. And while the State will claim that the only phone used by the Defendant was the Obama phone, such an assertion is not only fallacious, but entirely contrary to the evidence which it had in its possession at the time that it sought an indictment of the Defendant. Evidence from Defendant s Employer On September 18, 2015, Detectives from the Department of Public Safety and the Phoenix Police Department interviewed the Defendant s employer, Randall Decker, the owner of Landscape Excellence. The relevant portion of the departmental report memorializing the interview reflects Mr. Decker and his wife provided us with Leslie s cell phone number (480-532- 3973). (Emphasis supplied) (Bates 422). 13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This is the first instance of the State having actual knowledge before the Grand Jury presentation that the Defendant used the Verizon phone at the time of the shootings. Evidence from Mo Money Pawn At the time of Defendant s arrest, police executed a search warrant on his car. Inside the car, police recovered a pawn receipt, dated August 30, 2015 just one day after the first three shootings, for the handgun which the State believes was used by the Defendant in the shootings. See Exhibit 3. Of significance and as is reflected in said Exhibit, the phone number which Mo Money Pawn had on record for the Defendant was (480) 532-3973. This represents the second instance of the State having actual knowledge before the Grand Jury presentation that the Defendant used the Verizon phone at the time of the shootings. Cell Site Analysis of the Verizon Phone for August 29, 2015 Generally speaking, when a cell phone is on, and most certainly when it initiates or receives calls, it is in communication with various towers in the vicinity so as to maintain a connection. Towers with which a phone communicates ( pings ) can be identified and analyzed in a manner that GPS coordinates for the tower can be established in an effort to determine a phone s approximate location at any given time. On September 22, 2015, the FBI completed cell site analysis of the Verizon phone, just as it did with respect to the Obama phone. With respect to the FBI s cell site analysis with respect to the GPS location of the Verizon phone on August 29, 2015, the results were plotted onto a user-friendly map which is appended hereto as Exhibit 4. Relevant to Incidents One and Two, which occurred at 11:03 a.m. and 11:05 a.m. respectively, the FBI s analysis 14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 indicates that the Verizon phone (which the State knew was used by the Defendant) was pinging off of a tower near his home at 67 th Avenue and Glendale at 10:51 a.m. and 11:04 a.m. None of this clearly exculpatory evidence was presented to the Grand Jury. Cell Site Analysis of the Obama Phone for August 27, 2015 Law enforcement knew that on the morning of Incident Four, the Defendant was scheduled to be at work at 5:30 a.m. 11 Business and payroll records which were obtained from the Defendant s employer, pursuant to a search warrant executed on September 21, 2015, give credence to this statement as they show that the latest the Defendant ever arrived at work during the summer of 2015 was 6:00 a.m. Furthermore, records submitted by his employer to both the Arizona Department of Economic Security and the Internal Revenue Service are indicative that the Defendant was working at least a 40 hour work week, consistent with the Defendant s statement regarding his work schedule, and specifically, how he would have been at a job site on the morning that this shooting occurred. Defendant s statement concerning his alibi is corroborated by the cell site analysis conducted by the FBI. The results of the analysis, completed on September 22, 2015 and before the Grand Jury presentation occurred, place the Defendant in close proximity to a cell tower near the intersection of 99 th Avenue and Bell Road the precise location of the job site that he was working that day at 6:24 a.m. (See Exhibit 5). None of this clearly exculpatory evidence was presented to the Grand Jury. 11 In an interview of the Defendant s foreman / supervisor after the Grand Jury presentation, he told detectives that the Defendant always arrives at work 15-30 minutes early. 15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 APPLICABLE LAW AND ARGUMENT The primary function of the Grand Jury is to determine whether probable cause exists to believe that a crime has been committed and the individual being investigated was the one who committed it. (Citations omitted) State v. Superior Court, 139 Ariz. 422, 424, 678 P.2d 1386, 1388 (1984). Rule 12.9 allows the defendant to move the Court for a redetermination of probable cause if the accused establishes that he was denied a substantial procedural right. In State v. Young, 149 Ariz. 580, 720 P.2d 965 (App. 1986), the Arizona Court of Appeals held that where the defendant has been denied a substantial procedural right, the courts have the power to dismiss an indictment with prejudice where the indictment was a result of a violation of due process. An accused is entitled to due process during grand jury proceedings. State v. Emery, 131 Ariz. 493, 506, 642 P.2d, 838, 851 (1982). In particular, due process here requires the use of an unbiased grand jury and a fair and impartial presentation of the evidence. The State s failure to impartially present evidence to the Grand Jury violates the Defendant s constitutional right to Due Process to have a fair and impartial proceeding before the Grand Jury. The duties of fair play and impartiality imposed on those who attend and serve the grand jury are meant to insure that the determinations made by that body are informed, objective and just. Crimmins v. Superior Court, 139 Ariz. 422, 668 P.2d 882 (1983). The Arizona Supreme Court has frequently recognized the historical independence of the grand jury. Marston s Inc., v. Broomfield, 131 Ariz. 422, 668 P.2d 882 (1983). In Gershon v. Broomfield, 131 Ariz. 507, 642 P.2d 852 16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (1982) the Arizona Supreme Court noted that it must be remembered that in our system it is the grand jury and not the prosecutor that directs inquires into public crime. The prosecutor s duty is to assist the grand jury in its investigations; prosecutor may not exercise dominion over the investigations by evading the grand jury s will. It is true that the prosecutor has wide discretion in fulfilling his or her role in assisting the grand jury. But these powers are derived from the grand jury; it is the grand jury that must be the decision maker as to how to exercise those powers. Broomfield, 642 P.2d at 854-55. These concepts are embodied in the statute which provides that when the grand jury has reasonable grounds to believe that other evidence, which is available, will negate the contemplated charge, they must require the evidence to be produced. A.R.S. 21-412. See Crimmins, 139 Ariz. at 427, 668 P.2d at 887 (Feldman, J. specifically concurring). Justice Feldman elaborated on the prosecutor s duties when advising the grand jury that, [t]he prosecutor is present to assist the grand jury in performing its functions including that of protecting citizens from overzealous prosecution (Id.). The Defendant cannot be in two places at the same time. With respect to the Fourth Incident (August 27, 2015), the victim s route from his home (in North Scottsdale) to the airport could not possibly intersect the route which the Defendant would have taken from his home to the jobsite if he was to arrive at work on time as he did. Moreover, given normal patterns during the morning rush hour, the Defendant could not have perpetrated the shooting, and then be in the vicinity of 99 th Avenue and Bell Road to make a phone call at 6:24 a.m. 17
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The real question becomes: why did the State present cell site information August 29 th incidents, but fail to do so for the August 27 th incident? The simple answer is that it knew of the logistical impossibility of the Defendant being in two places at the same time. The State chose not to present this information as it knew that the victim s route to the airport could not possibly overlap with that of the Defendant, particularly as it had no evidence whatsoever to show that the Defendant did not arrive at work in a timely fashion. The gravity of the State s omission of this evidence is further underscored when coupled with testimony that the Defendant told detectives that he generally works Monday through Friday and begins between 4:30 and 6:00 a.m. Had the State presented the grand jurors with cell site information that placed the Defendant at work on the Thursday morning of the incident, consistent with his statement, the clearly exculpatory impossibility of his being physically able to perpetrate Incident Four would have been evident to the grand jurors. But what is most troubling about the State s presentation to the Grand Jury in this matter is that through the investigation of the Verizon phone conducted by the FBI, the State had actual knowledge that its user was in the vicinity of 67 th Avenue and Glendale at or near the precise the time of Incidents One and Two. The State also had actual knowledge, vis-a-vis the interview of Defendant s employer and through the pawn slip recovered from the Defendant s car, that he was, at the very least, a co-user of the Verizon phone. The State made a conscious and deliberate choice to withhold this information from the Grand Jury s consideration, or at a minimum, was willfully ignorant of it. 18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This action on the part of the State constitutes the failure to present clearly exculpatory evidence from the Grand Jury s consideration. At a minimum, it constitutes a violation of the Defendant s rights to due process before the Grand Jury a proceeding at which he was not present nor represented by counsel. Remand is Appropriate The State obfuscated the presentation of clearly exculpatory evidence of which they had actual knowledge all of which supported alibis that placed the Defendant far away from the crime scenes, and more precisely, excluded him from being responsible for the shootings. Law enforcement sandbagged the Defendant s fiancé s exculpatory statements that the Defendant was with her all day on August 29 th by threatening her with among the most heinous of charges, but conveniently failed to tell the Grand Jury how they got her to change her story, and instead only stated that she did albeit in the most feigned genteel and innocuous of ways. In most cases, the facts should shape the theory of the investigation; but here, law enforcement s pre-determined theory shaped their development of the facts. If not evident from their threatening and manipulation of the Defendant s fiancé, it should be evident from the failure to present clearly exculpatory cell site data from a phone which they had actual knowledge that the Defendant used. If not evident from their withholding of exculpatory cell site data from a phone which they had actual knowledge that the Defendant used, it should be evident from their withholding of employment records which place the Defendant at work, miles away from a shooting for which he is charged. If not evident from their withholding of employment records which place the Defendant at work, miles away from a shooting for which he is 19
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 charged, it should be evident from cell site data which corroborates that, in fact, Defendant was at work at the time of a shooting for which he is charged. The State knew of the prejudice that would accrue to the Defendant by omitting this clearly exculpatory evidence, yet it proceeded with indifference to the Grand Jury s autonomy, as well as its ability to deliberate impartially upon all available evidence. The defense very seriously considered seeking a dismissal of the indictment, with prejudice, based upon what it believes to be systematic and intentional conduct on the part of the State. That said, the defense does not want the finality of this case to come from what many would view as a legal technicality. Instead, the Defendant asks the Court to remand this case to the Grand Jury for a new probable cause determination so that its members can hear all of the evidence. The defense believes that following such a course will provide an open and transparent inquiry that will result in a finding that, once and for all, the Defendant is not the I-10 Freeway Shooter. Respectfully submitted this 4 th day of December, 2015. /s/ Jason D. Lamm Jason D. Lamm 20 21 22 23 24 25 26 Original efiled with copy provided electronically this same date to: Ed Leiter Vanessa Losicco Deputy County Attorneys By: /s/ Kathryn A. Miller /s/ Ulises Ferragut Ulises Ferragut Attorneys for Defendant 20
EXHIBIT 1
602-358-1888 (Merritt) Historical Cell Site Analysis 08/29/2015 2:10 am, 4:45 pm, and 11:41 pm (Shootings 1&2~11:03 am & 11:05, Shooting 3~10:15 pm) 9/22/2015 DRAFT ANALYSIS-NOT CR2015-144211 A FINISHED PRODUCT 000630 1
EXHIBIT 2
CR2015-144211 000290
CR2015-144211 000291
CR2015-144211 000292
CR2015-144211 000293
CR2015-144211 000294
CR2015-144211 000295
CR2015-144211 000296
CR2015-144211 000297
CR2015-144211 000298
CR2015-144211 000299
CR2015-144211 000300
CR2015-144211 000301
CR2015-144211 000302
CR2015-144211 000303
CR2015-144211 000304
CR2015-144211 000305
CR2015-144211 000306
CR2015-144211 000307
CR2015-144211 000308
CR2015-144211 000309
CR2015-144211 000310
CR2015-144211 000311
CR2015-144211 000312
CR2015-144211 000313
CR2015-144211 000314
CR2015-144211 000315
CR2015-144211 000316
CR2015-144211 000317
CR2015-144211 000318
CR2015-144211 000319
CR2015-144211 000320
CR2015-144211 000321
CR2015-144211 000322
CR2015-144211 000323
CR2015-144211 000324
CR2015-144211 000325
CR2015-144211 000326
CR2015-144211 000327
CR2015-144211 000328
CR2015-144211 000329
CR2015-144211 000330
CR2015-144211 000331
CR2015-144211 000332
CR2015-144211 000333
CR2015-144211 000334
CR2015-144211 000335
CR2015-144211 000336
CR2015-144211 000337
EXHIBIT 3
CR2015-144221 009596
EXHIBIT 4
480-532-3973 (Eddina) Historical Cell Site Analysis 08/29/2015 10:51 am, 11:04 am, 11:30 am, 11:35 am (Shootings 1&2 ~ 11:03 am & 11:05 am) 9/22/2015 DRAFT ANALYSIS-NOT CR2015-144211 A FINISHED PRODUCT 000636 7
EXHIBIT 5
4 602-358-1888 (Merritt) Historical Cell Site Analysis 08/27/2015 (Possible date of Shooting 4 ~ 5:00-6:00 am) 9/22/2015 DRAFT ANALYSIS-NOT CR2015-144211 A FINISHED PRODUCT 000633