Convictions Overturned, Prosecutors Rebuked

Lawyers did not turn over key evidence in trial about struggle with Payson police

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Citing prosecutor and police mistakes and omissions, Gila County Superior Court Judge Peter Cahill on Tuesday threw out multiple felony convictions arising from Payson resident Brandon Lee Lewis’ October 2011 confrontation with three officers.

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Peter Cahill

Judge Cahill ruled that police and prosecutors withheld crucial evidence from the defense that could have affected the outcome of the trial, including potentially conflicting eyewitness accounts, inconsistent police statements and damage estimates that spelled the difference between a felony and a misdemeanor.

“It is an injustice that so many legally relevant documents were not properly disclosed prior to trial. The failure of due process here is clear,” wrote Cahill.

Cahill set aside the convictions, but scheduled a Dec. 16 hearing to determine whether prosecutors want to seek a new trial on the same charges, rejecting the defense’s plea that he set aside the convictions “with prejudice” to avert another trial.

Cahill’s order indicated police and prosecutors failed to provide the defense with copies of reports written by the officers that could have cast doubts on their testimony in court, failed to disclose the existence of potential witnesses, failed to indicate the department had a repair estimate that would have prevented the charge of felony damage and failed to disclose that one officer testifying had previously been on a list kept by the county attorney’s office of officers with questionable credibility.

Cahill concluded, “the State concedes it possessed some documents and cites mistakes as the reason for failure to disclose. Additionally, the State argues that it did not have knowledge or possession of other documents prior to trial ... the prosecution’s attempt to excuse its shortcomings is not at all persuasive.”

He noted disclosure rules established in the case Brady v. Maryland hold that mistakes have the same legal effect as deliberately withholding information.

A jury earlier this year convicted Lewis on two charges of assaulting a police officer, on one charge of resisting arrest and both felony and misdemeanor criminal damage charges. At that time, Cahill imposed a sentence of two years probation and 30 years in jail, but suspended the jail sentence pending an appeal. At that time, Cahill criticized prosecutors for withholding some evidence until after the jury reached a verdict.

The order issued this week revealed additional documents police and prosecutors withheld from the defense.

The complicated, high-stakes case has also spawned a civil suit against Payson.

The case stemmed from an Oct. 30, 2011 confrontation between Lewis and Payson police officers Jessie Davies, Justin Deaton and Lorenzo Ortiz.

The incident started after Lewis crashed his truck into a retaining wall on West Frontier Street. Officers responded and Officer Davies arrested Lewis on suspicion of drinking and driving. A struggle ensued.

Officers said Lewis resisted arrested and refused to submit to a field sobriety test. They said they wrestled him to the ground and restrained him. Moreover, they said he then repeatedly smashed his head into the hood of the police car.

By contrast, Lewis argued that police threw him to the ground, beat him, cuffed him, stood him up then slammed his head into the hood of the police car.

Cahill’s order vacating the guilty verdicts offered a detailed rebuke of both police and prosecutors. The judge also summarized the arguments on both sides.

“Defendant argues that his trial was not fair because the prosecutors, Joy Riddle and Marc Stanley, failed to disclose information as required by law. In response, the State acknowledges that mistakes were made. It argues however that this was ‘nothing more than a simple oversight’ If the prosecutors never had it in their possession, they never requested it.”

On the other hand, Cahill noted the defense wanted a dismissal “with prejudice” because “the State should not merely get a ‘do-over,’ the great benefit of a second chance to convict him — at his expense.”

Cahill summarized the facts.

“Some facts were not in dispute: the officers and Defendant had a confrontation; Defendant was taken to the ground ‘hard’ and then placed up against the police Tahoe cruiser; Officer Ortiz grabbed the hair on the back of the defendant’s head; Defendant’s face was repeatedly slammed against the hood of the Tahoe; and, his blood was on the officers.”

Officers’ reports

The officers each wrote a Use of Force Memoranda and Use of Force Report shortly after the incidents. The defense learned of Officer Ortiz’s “Use of Force” report through an e-mail turned over by the town in response to a request for records in the civil suit. The defense used that report to cast doubt on Ortiz’s account in the trial, which may account for the jury’s decision to not convict Lewis on the charge of assaulting Ortiz. The defense did not receive the other officers’ reports.

Cahill concluded “there are, just as Defendant points out, inconsistencies between the testimony of the officers and their undisclosed statements.

“Many of these inconsistencies are related to the key facts in dispute during the trial, such as whether the ‘take-down’ of the Defendant was justified, whether Defendant’s resistance was justified and how certain injuries occurred.

“He argues persuasively that the undisclosed statements could have been used to discredit the witnesses’ claims on these key facts and as to the dispute whether there was an internal investigation.”

Cahill noted the precedent on what prosecutors must disclose covers anything that might cast doubt on an eyewitness account, unless prosecutors have other evidence so strong that the eyewitness account is not crucial. However, in this case “testimony by the officers was the only evidence that established that Defendant committed crimes; there really was no ‘other evidence.’ Undisclosed statements were plainly ‘material,” wrote Cahill.

Vehicle repair estimate

The charge of felony damage requires damages in excess of $1,000. On the stand, Payson Police Sgt. Don Garvin testified he expected that the damage to the hood of the police vehicle from the impact of Lewis’ head would exceed $1,000.

However, it turns out the police department already had a $719 repair bid before Garvin testified. The prosecution evidently also had the estimate, Cahill concluded. The existence of the estimate was disclosed only after a presentencing probation report uncovered it.

Sgt. Garvin’s credibility

The judge also faulted the prosecution for not revealing to the defense that Sgt. Garvin had previously been included on a list of police officers with credibility problems maintained by the county attorney’s office. The order did not reveal why Sgt. Garvin has been on the so-called Brady list.

Prosecutors argued they didn’t need to reveal Garvin’s previous inclusion on the Brady list, since he was no longer listed.

However, Judge Cahill said the prosecution must disclose information that can be used to cast doubt on the testimony of a witness. “After trial, Defendant discovered that the State had prior knowledge of information that could potentially impact the credibility of Sergeant Garvin and his testimony. Defendant argues that the State had made it a practice in other cases to disclose findings regarding Sergeant Garvin’s credibility, but failed to disclose those findings in this case.”

But Cahill concluded that in light of all the other problems, the prosecutors should have disclosed Garvin’s past listing.

“Although the issues of credibility with Sergeant Garvin were not disclosed to Defendant prior to trial, they do not rise to a level determinative of guilt or innocence. This violation is in itself insufficient to warrant relief; however, it is relevant when considered with the other undisclosed information.”

To view Judge Cahill's 12-03-13 - Order Vacating Judgment and Convictions click the doument below.

Comments

don evans 4 months, 1 week ago

I have no comment on the specifics of this case as reported. I do wish to state the following. During my tenure with the Gila County Probation Department, it was a constant battle to obtain copies from Payson PD of all relevant official documents necessary to complete sentencing and hearing recommendations before the court. This would also include agreed to informal Probation hearings with a juvenile and Parent/Guardian to discuss an appropriate punishment for minor juvenile offenses (ex-Community Service Hours and/or restitution for damages etc.) based on a criminal referral from the PD. On several occasions, I had to call the PD, ask them to provide needed copies ASAP of the crime/arrest reports, only to be told they had not yet been submitted and the Officer was now on vacation or several days off? My best guess this is because the officers are directed to not work and submit for overtime compensation prior to going off duty end of watch. Due to the field work load, the necessary reports to be completed and approved by a Supervisor pile up and there is a delay in the entire process. This would appear to be an administrative issue of resources and money, not any specific intent to frustrate the justice system. My opinion, no officer goes off duty until all the days reports are submitted and approved. Especially arrest reports! If paid overtime or time off compensation is necessary, so be it.

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Maggie Meares 4 months, 1 week ago

The reports in question in this article were written in a timely manner and were never disclosed by the prosecution. The officers sat on the stand and outright LIED about their existance! Hauntingly similar to what happened a very well loved Dr. here in Payson and after the jury found that Dr. innocent, PPD was like "Oh! Lookie here at what we found.... a documnet that would have proved this Dr.'s innocense all along! The cost to the Dr. for his atty. fees and to the TAX PAYERS OF GILA COUNTY was ridiculous! That trial, and this trial should NEVER have gone to court! These officers and their fearless leader are trying to cover their butts for the beating of an innocent young man!

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Maggie Meares 4 months, 1 week ago

Oh----and now are they going to get a chance "re-file" charges and get a "second chance to lie on the stand" at the cost of atty. fees for Brandon and Gila County Tax Payer money again? It is not fair if they do....I believe it may be a case of "double Jeopardy"? Why should prosecutors get a second chance to put Brandon on trial when they "chose" to withhold evidence and the cops "chose" to lie on the stand! Why aren't those cops held in "contempt of court for purgery"????? All 4 of them deliberately lied! This was not a case of "oh I forgot"...this is a big case for them and something that I am sure is fresh in their minds as their jobs are on the line.... or at least disciplinary action and a bad mark in their employment file! So, they are going to lie to get out of trouble! This whole case is rediculous! I cannot wait for the release of the cell phone video/audio...maybe the president of ASU would like to hear it to see how his college students here would be treated on a dark street by PPD!!!

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Barbara Buntin 4 months, 1 week ago

Wow! This is very serious. How can you believe any of them ever again?

There appears to be a lack of respect for the rule of law and due process which is how the rule of law is enforced. This is not the first time that undisclosed documents have shown up after the fact to the detriment of a defendant.

On a positive note, Judge Cahill is not putting up with their nonsense. One of the bulwarks of our liberty is the power of the court to limit how the government can encroach on our individual rights and liberties. This is why we have the judiciary

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Barbara Buntin 4 months, 1 week ago

Don. There was over a year between the incident and the trial. This is basic procedure not something that they didn't know they were suppose to do.

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Susan Imperatrice 4 months, 1 week ago

There have been outrageous atrocities of Justice in the Gila County Court for many years. Acts committed by Former County Attorney Daisy Flores, Judge Cahill and Judge Duber resulting in the ongoing molestation of children, death of children, death of an officer and too many others to mention. It seems nearly everyone knows, even outside of Gila County, that these two Judges freely disregard judicial procedure and the law, why because no cared, no one stood up for justice. These court officials have created a culture of fear in which honest people are too afraid to speak up. What people fear is exactly what we see here, all of a sudden Cahill is all about over turning convictions, not because he's doing what's right, because if that were his intention why didn't he take such action many times before against Flores. I wonder how many cases were overturned during the time Flores was in office. Cahill wasn't having any luck beating new prosecutors into submission with he and Duber's abusive, demeaning and unprofessional treatment of prosecutors in court, so he is setting out to discredit them, even trying to destroy their careers. He seems to have no problem endangering officers and the community as a part of his vendetta and in an effort to maintain total control over the justice system in Gila County.

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Maggie Meares 4 months, 1 week ago

Judge Cahill spent many weeks investigating and going over the rule of law with this case and he gave it much thought FOLLOWING THE JUDICIARY PROCEDURE. Did you even read the attached document? I read the document thoroughly and having some previous law classes, I found that the findings and cases that he cited were very much pertaining to this case. I do not see anywhere in Judge Cahills ruling on this that he has overstepped his boundries and I do not believe that he is "out to get" the county atty. for revenge. I, as are others who voted for this new county atty., are highly disappointed with him, and I will not vote for him again. I have had many foster children and though at times I was disappointed to see those children go back to their parents, I knew that the judges had to follow CPS recommendations and the rules in those cases too.

The cops in Payson are the ones who are "OVER STEPPING" their boundries, they think that they are above the law (there are still a few honest officers on the force who believe that they are to be held to a "higher standard"...someone that people can look up to and hold a high regard for, but these other "good" officers also are the ones who cannot or will not speak out in fear of losing their jobs!!!). There are people watching the cops here... "policing the police" so to speak....and yes we HAVE noticed the new cops rolling thru the stop signs, mashing on the gas (a waste of fosil fuels), and when followed THEY WERE NOT ON THEIR WAY TO AN EMERGENCY!

Also, as previously noted... this is not the first time that the cops have "withheld" evidence! The female prosecutor did something during the trial for which she was reprimanded by the judge and told that she was getting "a reputation of being a sneak". Then at sentencing the other prosecutor tried to introduce some stupid things as "evidence"...HELLO! THE TRIAL HAD BEEN OVER FOR 3 MONTHS! Another "sneaky" move! And at that point another cop stood up and lied AGAIN!!!!

I'd also like to know which of these idiot cops arrested a 6yr old child at school and tried to take him to court. Read the laws you idiots! Your cops, not lawyers! As I said there are people "policing the police" and they had better watch their steps for any following cases involving their misconduct because their credibility is in the toilet!

Notice I do refer to the "cops"...the ones I have no respect for and the "officers" the ones that I do still have respect for. Likewise, I have NO RESPECT FOR ANY LIAR!!!

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Maggie Meares 4 months, 1 week ago

Judge Cahill did say that to the female prosecutor while the jury was out of the room ... Just don't want some people to think that he said it in front of the jury or it might look like he was "out for revenge"

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Dale Longbons 4 months ago

Susan Imperatrice hit the nail on the head about ahill. He totally ignored and ruled against my parents trust a few years back and gave guardianship of my Mother to their nasty daughter. It cost my Father over twenty thousand dollars and untold grief to get control of his wife back. and thanks to Cahill and my Fathers daughter worried him to death. After finding out that two of her sons were going to testify against her about abuse in their family when they were kids, she would not show up in court and dropped her guardianship. But not before she took my Mother out of a safe assisted living house and brought her back about six days later with physical abuse marks on her, (A sworn statement was submitted to the court). She had guardianship for only about three months, and yet ran up these kind of costs and charged my Father every time she came up to Payson from the valley. My brother, wife and I proceeded to take care of my parents for the next three years and did not charge them another red cent. Unfortunately my Father could not get over what one nasty daughter and one judge (who freely disregarded judicial procedure) did to a ninety year old man and it killed him. Now this same nasty person wants Cahill to rule for the trust because she does not like her share of the estate. People of Gila County don't take for granted your trust is safe if a certain judge is brought into the picture.

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Meria Heller 4 months, 1 week ago

Until the law "enforcers" face the same penalties they inflict on others, nothing will change. This is a problem throughout the country - the police state as it rises. Withholding evidence, fabricating evidence, etc. No one ever cares until it happens to them. Re-trial? for what or who?

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