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.
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.”
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.