A Superior Court judge issued a scathing ruling recently that dismisses all charges against a Payson man accused of assaulting three officers citing “grossly improper” actions by prosecutors and police before, during and after the trial.
Judge Peter Cahill ruled that the state so badly botched the trial of Brandon Lee Lewis that giving the Gila County Attorney Bradley Beauchamp a do-over would only encourage egregious behavior by attorneys and police.
“Defendant is entitled to something more than a bitter and expensive remedy when it was someone else responsible for the wrongdoing,” he wrote. “Double jeopardy protection is aimed at exactly the type of abuses shown to have occurred here.”
Back in October 2011, Lewis reportedly ran his truck over a low retaining wall near a West Frontier Street apartment complex. Several officers arrived to investigate. Suspecting Lewis was drunk, officer Jessie Davies started a field sobriety test while officers Justin Deaton and Lorenzo Ortiz looked on.
Deaton and Ortiz approached when Lewis “squared” off toward Davies like he would hit him, according to police reports.
The officers eventually took Lewis to the ground and Ortiz dropped his weight on Lewis, delivering several strikes to Lewis’ face. Deaton hit Lewis twice in the leg.
After he was cuffed, Lewis reportedly smashed his head into the hood of Deaton’s patrol vehicle repeatedly, leaving a large dent. Lewis claimed the officers slammed his head into the hood. The officers said he did it to himself.
In April 2013, Lewis went on trial for assaulting all three officers, resisting arrest and causing more than $1,000 worth of damage to Deaton’s vehicle. The dollar amount of the damage made it a felony. A jury found Lewis guilty on all counts except assaulting Ortiz.
Afterward, Lewis’ defense team argued that misconduct by police and prosecutors made the trial unfair and asked the judge to vacate the convictions — or set aside — the conviction. Cahill agreed and set a date for a new trial.
On the eve of the March 13 trial, however, Lewis’ lawyers asked Cahill to dismiss all charges against Lewis with prejudice, which means he couldn’t be charged again in connection with the same incident. Defense attorneys said the GCAO should “suffer some consequence for the tactics used to convict him.”
Those mistakes and omissions included withholding evidence on the cost of the repair; not telling the defense a key witness was listed on the prosecutor’s Brady List; failing to disclose certain police reports and using the plea bargaining process to influence a civil lawsuit Lewis had filed against the town.
In a response, the prosecutors acknowledged that mistakes were made unintentionally. They asked for a chance to try Lewis again.
However, Lewis’ lawyers argued a new trial would violate the U.S. and Arizona Constitutions by allowing the state to take advantage of its own misconduct and try Lewis twice for the same offense.
Cahill agreed and issued a scathing, 14-page criticism of the police and prosecutors.
Retrial already determined?
Prosecutors in their filings protested that Cahill had already ruled on the issue of a new trial when he vacated the first convictions.
After the trial last year, Lewis’ lawyers filed a motion asking Cahill to vacate the convictions. In oral arguments they also asked Cahill to dismiss all charges with prejudice, but they did not make the motion formally. Cahill, therefore, ruled only on the filed motion.
So this year, Lewis’ lawyers filed the request for the dismissal with prejudice.
Cahill’s ruling said he had to consider whether prosecutors and police engaged in such “extreme misconduct” that a new trial should not go forward.
One of the first things he addressed was the repair estimate for the hood of the police car.
The hood ended up with a salad bowl sized dent after Lewis reportedly slammed his head into Deaton’s SUV. Lawyers “hotly contested” both the damage and the cost to repair it at trial.
Payson Police Sgt. Donny Garvin testified it would cost $1,200 to fix, which would be enough to make the damage a felony. Prosecutors presented no other evidence.
A jury in turn found Lewis guilty of felony criminal damage.
Only after the trial, in preparation for sentencing, did a probation officer ask the town to back up its restitution claim.
Town staff submitted a $700 body shop repair estimate prepared 16 months before the trial — below the $1,000 threshold for a felony.
Prosecutors never disclosed the estimate, according to court records.
Later, prosecutors admitted they had the estimate in their trial notebook all along, but said new attorney Joy Riddle overlooked it.
Cahill ruled the law doesn’t make exceptions for how much paperwork the state has.
“The fact that prosecutors overlooked evidence with such compelling significance (that the offense was not a felony, but a misdemeanor) shows more than a lack of diligence,” Cahill wrote. “It shows indifference to basic rules of procedure and constitutional protections for a fair trial.”
Also after the trial, the defense learned that Sgt. Garvin was on the GCAO’s Brady List at the time of the trial, a list of officers with credibility issues maintained by the prosecutor’s office.
This too was not disclosed during the trial.
Like the repair estimate, the GCAO said it “inadvertently failed to disclose” that Garvin was on the list, according to court records. By not telling the defense about the Brady List, prosecutors protected the credibility of a key witness, said court documents.
“Sgt. Garvin’s credibility was the determinative issue on this count,” Cahill wrote. “The disclosure violation deprived defense counsel of powerful cross-examination ammunition.”
Pre-trial disclosure problems
A week before the trial started last year, Lewis’ defense team received written statements from Ortiz and a key witness made to the PPD a year before the trial. The police department had not previously revealed the existence of those statements.
The defense asked Cahill to dismiss the case then, but Cahill denied the request, saying he was “not fully aware of all of the conduct of the state’s agents, police and prosecutors ...
“However, the court now considers everything that happened in full context.”
The Ortiz statement should have alerted prosecutors to similar “use of force” reports prepared by Deaton and Davies, as required by the department’s policy, the defense says.
But again, prosecutors did not disclose the existence of those reports to the defense.
Undisclosed police reports
Lewis’ lawyers discovered the use of force reports while preparing their civil suit against the town. They did not have these reports for the criminal trial.
Some details in the use of force reports differ from what the officers said on the stand. The defense could have used this information to discredit the officers’ testimony, Cahill wrote.
The GCAO says the attorney for the case, Marc Stanley, didn’t know the reports existed because the Payson police never provided them to prosecutors.
“(Marc Stanley) was not aware of such reports and had no reason to ask if there were any such reports,” the GCAO wrote in its response. Stanley has since left the GCAO.
Cahill says that because police withheld these statements, Lewis didn’t get a fair trial on charges he attacked Deaton and Davis.
“Blame lies where it belongs, on the agents of the state,” Cahill wrote.
“Police did not ‘accidentally’ withhold these statements from prosecutors.”
Police Chief Don Engler could not be reached for a comment.
Cahill added prosecutors should have asked Payson police about any reports, but failed to do so.
Making a deal
Another damning accusation centers on whether prosecutors used plea-bargaining powers to help shield Payson from liability.
Lewis’ defense attorneys said the GCAO withdrew a more favorable plea offer after Lewis filed a civil suit against Payson. The new deal reportedly required Lewis to plead guilty to resisting arrest.
“A plea to this offense, as he put it, ‘would have substantially hindered’ his civil claim against the town,” Cahill wrote.
The GCAO said this “accusation was baseless.”
The GCAO, however, didn’t explain the withdrawal of the first plea deal. “This leaves only one plausible explanation,” Cahill writes, “that the state’s plea strategy was ‘designed to shield the Payson Police Department from civil liability.’” Cahill therefore found that the GCAO used the criminal justice system in an attempt to influence the outcome of a civil suit.
Considering everything, Cahill dismissed all charges against Lewis with prejudice.
“The state’s conduct was not the result of legal error, mere negligence, mistake, or insignificant impropriety,” Cahill wrote. “Instead, it amounts to intentional conduct which prosecutors and police knew was improper and prejudicial, a pattern of indifference to their obligation to obtain and disclose evidence.
“Due process of law is not a meaningless slogan,” Cahill wrote. “It is the indispensable foundation of individual freedom; it defines the rights of the individual and delimits the powers which the state may exercise.