County Attorney Bill "The Little General" Montgomery Should Be Cited for Dereliction of Duty in I-10 Shooter Fiasco

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First they try to frame you, then they don’t want to give your property back.

So it goes in the Kafkaesque saga of Leslie Merritt Jr., the guy the Arizona Department of Public Safety tried to paint as “the I-10 shooter” after he was arrested last September 18 for four of 11 unexplained incidents over the summer of 2015 involving vehicles being struck by bullets or some other projectile.

The prosecution’s case collapsed in April, after Merritt’s defense attorneys Jason Lamm and Ulises Ferragut got hold of an analysis done by ballistics expert Lucien Haag on behalf of the prosecution. Haag opined that, contrary to what DPS’s crime lab had found, the four bullets recovered from four different freeway shootings could not be linked to Merritt’s Hi-Point C-9 handgun.

Merritt, 22, a father of two, had been held in solitary confinement for seven months on a $1 million bond, later reduced to $150,000. On April 19, Maricopa County Superior Court Judge Warren Granville, acting on a motion from the defense, ordered his bond lowered to zero.

Because DPS’s botched ballistics testing is what put Merritt behind bars in the first place, the Maricopa County Attorney’s Office reluctantly dismissed the charges — but “without prejudice,” meaning prosecutors could refile them, despite the tidy mountain of exculpatory evidence Lamm and Ferragut have amassed.

So why was Lamm back in front of Granville June 17?

Seems the MCAO wanted to hold on to Merritt’s pistol and his silver 1998 Saturn. Prosecutor Vanessa Losicco told Granville that DPS is performing “additional testing.”

Granville was skeptical of Losicco’s rationale.

“Not to be flip,” said the judge. “But the state has had the opportunity for, in effect, three colonoscopies to be done.”
Granville gave the prosecution till the end of June to finish any testing and turn over the property to the defense. Outside the courthouse, Lamm talked about how the disclosure of more testing is good news for his client.

“That’s more discoverable information for later on,” he explained, with regard to Losicco’s comments. “She just kind of teed something up for me just now.”

Merritt’s attorneys have filed a $10 million notice of claim to the agencies involved in this debacle. A notice of claim, or NOC, is a letter promising a lawsuit unless the claim’s demands are met. So the more times the other side doubles down on what it has continued to insinuate is Merritt’s guilt, the more likely it is that Merritt will get a fat settlement from all the parties involved. That includes Maricopa County, because County Attorney Bill Montgomery is on the NOC’s hit list.

As well he should be. As DPS releases more and more documents, it has become plain that Merritt was the agency’s scapegoat for the freeway shootings, and Montgomery’s office was involved early on in the effort to pin it all on him, despite an expanding body of evidence pointing to his innocence.

Merritt wound up in cuffs after DPS’s crime lab linked his gun to bullets used in the attacks, but they had little else on him. An FBI analysis of Merritt’s cell phone signals couldn’t put him at the locations of the incidents. Investigators found no gun residue on his clothes, hands, or car. There was no video, no witnesses to tie him to the shootings.

Moreover, records show that four hours before the I-10 incident at 9:30 p.m. on August 30 — the last shooting for which Merritt was charged — he pawned his gun at Mo Money Pawn in order to buy baby food for one of his children.

According to court records, that incident involved a BMW whose owner was returning from a business trip. There was no problem with the vehicle when he parked it at Phoenix’s Sky Harbor Airport on August 27, the owner said, and sensors on the car showed no issue when he started the engine. But on the drive home, on the I-10, the BMW’s tire-pressure monitoring system indicated that the front left tire was low. When the owner stopped to inflate it, he heard air escaping. The BMW was equipped with “run flat” tires that can be used despite losing pressure, so the owner didn’t take it for service until the following day, when mechanics found the remains of a bullet inside the left front tire.

In a pleading sealed by the court until after Merritt’s release, defense lawyers noted a second interview of the BMW’s owner by DPS detectives. They pressed him on his version of events, suggesting that the shooting may have occurred days earlier and asking whether the bullet could have “lodged in the side [of the tire] and loosened that hole on the way home?”
The owner insisted his car had been “fine” when he got to the airport on August 27. (A defense expert later determined that the tire would have begun losing pressure “one second” after being struck by the bullet.) Still, DPS revised its estimate, alleging that the shooting took place sometime between August 22 and August 27.

According to current and former MCAO prosecutors and other law-enforcement officials I’ve spoken with, the county attorney’s office was aware of the flaws in the case, and those flaws multiplied with time.

In a PowerPoint presentation to the press in the weeks following Merritt’s release, Lamm detailed the DPS’s shoddy work, slamming the authorities’ “rush to judgment” regarding his client. Said Lamm: “The state had a theory, and they created facts to make it work.”

It’s to Merritt’s credit that he did not sway from his avowals of innocence. In the video of his interrogation by DPS officers, the officers lie to him, tell him the case against him is solid, and say they have video of him shooting on the freeway (they didn’t). Merritt calls “bullshit” on the officers (literally), and offers to take a polygraph test, but he is not allowed.

He says he works as a laborer for a landscaping business, that his girlfriend, the mother of his children, doesn’t have a job, and that his son has medical issues. “Who’s gonna pay the bills? Me,” he says. “I’m not going to jeopardize my family because I want to scare the public. Fuck that.”

By the end of the video, the investigators seem stymied by Merritt’s forthrightness.

My sources say the prosecutors assigned to the case were reluctant to file charges against Merritt but were ordered to do so by one of Montgomery’s lieutenants. In response to my request for comment, a spokeswoman for the MCAO denied any such order was made.

At any rate, by the time the office asked for a second opinion on ballistics, prosecutors knew their case was shot.

The MCAO could easily have “furthered” the case, a step that prosecutors often take when they don’t have enough evidence to charge an individual with a crime. But Montgomery chose not to go that route. And when DPS director Frank Milstead announced Merritt’s arrest — after his boss, Governor Doug Ducey, tweeted, “We got him!” — the county attorney was on hand for the press conference.

At a subsequent press conference, in April, Montgomery declined to answer most of the reporters’ questions about the botched prosecution, imperiously stating that he has ethical obligations as a prosecutor and must maintain “my fidelity to my oath of office.”

Fidelity, eh? Line prosecutors who work for Montgomery fault him for being a pompous martinet. Hence their nickname for him: “TLG,” short for “The Little General” — a derogatory reference to his West Point bona fides and his slight physical stature. (Montgomery retired from the U.S. Army as a lieutenant colonel.) As long as we’re getting all high and mighty, it’s a legal truism that a prosecutor’s duty is to “do justice” — or, in the words of the American Bar Association’s website, “to seek justice, not merely to convict.”

Sure, there’s plenty of blame to go around for the Merritt fiasco — from Montgomery to DPS Director Frank Milstead to Governor Ducey and others. But Montgomery is supposed to be the adult in the room. His office should stand as a stopgap against wrongful convictions, not facilitate them. Here he failed miserably, leaving everyone in this county, state, and beyond with the lingering unease that our criminal-justice system cannot be trusted, even in the most high-profile of cases, and that, like Leslie Merritt Jr., there but for the grace of dumb luck goes any one of us.

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