Court documents recently unsealed by superior court Judge Warren Granville reveal that DPS has refused to return Merritt's nine-millimeter Hi-Point C-9 pistol, which Granville ordered to be given back to Merritt at the end of June over the objection of county prosecutors. Instead, DPS applied for and secured a search warrant from Granville, allowing them to hold on to the weapon.
The affidavit for the warrant, signed by DPS detective Trevor Graff, states that in addition to its initial ballistics testing linking the gun to four bullets in the supposed crime spree — testing later debunked by renowned local firearms expert Lucien Haag — DPS sought the opinion of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives on its ballistics work.
The ATF's report, dated four days after all charges against Merritt were dismissed on April 25, backed up Haag's analysis. Haag, whom the Maricopa County Attorney's Office brought in to double-check the work of the DPS crime lab, wrote that DPS's testing had been inconclusive and "insufficient." The four evidence bullets provided by DPS, he declared, "could neither be excluded or identified as having been fired" by Merritt's gun.
As DPS's ballistics testing was the only evidence linking Merritt to the crimes, the prosecution's case collapsed once Haag's report was revealed to Merritt's defense attorneys, Jason Lamm and Ulises Ferragut. But MCAO had the case dismissed "without prejudice" — meaning prosecutors can refile charges against Merritt at a later date, but only if DPS comes up with enough evidence to constitute probable cause and the MCAO thinks it can secure a conviction.
Merritt's lawyers have accused DPS of manipulating facts to fit its theory of the crime. They observe that DPS revised its initial timeline of shootings to account for Merritt's gun having been pawned several hours before the final shooting took place on August 30, 2015.
But that revision failed on close examination, leaving DPS with a gaping hole in its narrative that remains unexplained. DPS insists that all four bullets came from Merritt's gun, though according to the time stamp from Phoenix's Mo Money Pawn shop, Merritt sold the gun at 5:31 p.m. on August 30, about four hours before the time of the final shooting, which is estimated to have occurred between 9:45 p.m. and 10:15 p.m. that same day.
In its affidavit for a warrant to keep Merritt's gun, DPS offered yet another ballistics test to back up its first try. This one was based on a subsequent study done by Haag and posted to an internet forum for firearms experts. In it, Haag demonstrated that using .357 bullets in the Hi-Point pistol made it easier to obtain the distinct markings made when the weapon is fired.
"The normal nine-millimeter bullets are .355 inches in diameter," Haag explained in an interview with New Times. "When those normal nine-millimeter bullets go down a Hi-Point barrel, they only get engraved in a very narrow location. By using slightly oversized bullets — .357 bullets — there is better contact, greater contact in that very same barrel."
Haag compared it to a normal-size man squeezing himself through a tunnel and a larger man doing the same while rubbing against the walls of the tunnel, leaving marks on his body. He said the point of the study was to see if Hi-Point barrels left unique markings and if using a larger bullet improved the markings used by forensic examiners to match bullets to guns. Haag says the answer to both inquires is yes.
The Cave Creek-based criminalist said he thought of the experiment after he was asked to opine on DPS's original ballistics testing on Merritt's gun. He knew that, in general, the Hi-Point barrel did not leave good markings on bullets, and the use of the slightly larger bullet was a way to alleviate the problem. He said he can't comment on what DPS did after his study was published, because he may be called as a witness concerning the new testing. But he said he sees no problem with DPS trying to apply the study to the Merritt case.
"I didn't submit this as part of the Merritt case — it wasn't sent in to anyone for that reason," Haag cautioned. "But certainly I have no qualms with folks who saw it [online] and saying, 'Well that's an interesting idea, let's see if that works.'"
He said that to do an analysis of DPS's second round of testing, he would have to actually examine the items DPS used in the experiment. Beyond that, he would not comment.
Lamm has submitted motions to Granville attempting to overturn the DPS warrant. On July 19, the two sides met in court, where Lamm asked for an evidentiary hearing on the matter. Granville granted the request, setting the hearing for August 24. He also unsealed the warrant and the motions involved.
In one of his filings, Lamm contends that the warrant was rendered "irreparably flawed" by the omission of key facts, such as the discrepancy involving the pawn shop. The only reason not to include that information, Lamm argued, was that DPS knew "it would deal a fatal blow to the crime lab's theory" of the case.
Lamm also argued that DPS misapplied Haag's study to the evidence, and the attorney signaled that he intends to call Haag as a witness.
In speaking with New Times about the case, Lamm observed that DPS's affidavit for the warrant adheres to the law-enforcement agency's original timeline, undermining its recent conclusions.
Lamm's client has filed a $10 million notice of claim against DPS, the Maricopa County Attorney's Office, Maricopa County, and the State of Arizona. (A notice of claim, or NOC, is a letter promising a lawsuit unless the claim’s demands — in this case $10 million — are met.) Lamm believes DPS has resolved to railroad his client, which in turn is making it more likely that Merritt's claim will succeed.
"The search warrant represents the latest round of shenanigans by DPS in efforts not to comply with Judge Granville's order to return Mr. Merritt's gun to him by June 30," Lamm explained. "The search warrant disregards the conclusions of not only an internationally acclaimed ballistics expert but also the ATF, that Merritt's gun could not be identified as having been used in the shootings."
Lamm recalled his client's May appearance on the television show Dr. Phil, when Merritt recounted his September 2015 arrest and told of being held on a $1 million bond (later reduced to $150,000) for seven months, during which he was kept in solitary confinement in the county jail.
During the hourlong interview, the 22 year-old father of two was asked what he thought of comments by DPS Director Frank Milstead to the effect that Merritt remained the department's only suspect in the shootings, even after DPS's case collapsed, leading to Merritt's release.
"I think it's just that they're covering themselves from the mistake they've already made," Merritt replied. "I still worry about it, because if they manufactured evidence once to arrest me, why wouldn't they try to do this again?"
Noting Merritt's prediction and DPS's latest effort to link Merritt to the crimes, Lamm said, "Scarily, Mr. Merritt's statement to Dr. Phil has come true."
Contacted via e-mail, a DPS spokesman declined comment on the warrant or Lamm's assertion that DPS is attempting to frame his client.
Sources tell New Times the Merritt case is in limbo at the Maricopa County Attorney's Office, and that after line prosecutors on the case refused efforts to have them refile charges against Merritt, the case file was ordered boxed up and taken away from those prosecutors.
Attorneys for the MCAO are representing DPS on the warrant issue, but they aren't the same prosecutors who were assigned to the case initially.
MCAO spokeswoman Rebecca Wilder declined all comment, writing via e-mail, "As you know, it's an ongoing investigation."