The Maricopa County Sheriff's Office conducted an untimely and unfair probe of a fatal crash caused by Sean Pearce, a county hearing officer ruled, resulting in further leniency for the deputy.
Pearce, son of recalled state Senator Russell Pearce, a Joe Arpaio crony, avoided criminal charges in the 2013 crash with Glendale resident John Edward Harding and nearly avoided a criminal speeding charge until inquiries by New Times alerted a judge to the death in the case.
Now, it turns out that the MCSO handled the internal investigation of Pearce incompetently, spurring a county Merit Commission hearing officer to approve Pearce's appeal and reduce his suspension.
"The actions of the [MCSO] were arbitrary; they were taken in disregard of the facts and circumstances or without adequate determining principle," wrote county Hearing Officer Prudence Lee in her December 10 report, obtained by New Times under the state public records law. The office's actions "were taken without reasonable cause and violate [county policy] which requires 'just cause.'"
"The actions of the [MCSO] were arbitrary; they were taken in disregard of the facts and circumstances or without adequate determining principle." — Maricopa County Hearing Officer Prudence Lee
Lee sustained Pearce's appeal of his 80-hour suspension and reduced it to 40 hours, as reported last week. Her decision was the latest wrinkle in the tragic case involving a 63-year-old guy coming back from a shopping trip and the son of a man who was formerly one of the state's most powerful Republican politicians. The elder Pearce, a lead sponsor of Arizona's infamous anti-illegal-immigrant law, Senate Bill 1070, was once Sheriff Joe Arpaio's chief deputy. His son is a well known deputy-detective who was awarded a Purple Heart in 2006 after getting wounded in a raid.
On December 16, 2013, Harding pulled out of a side-street in Glendale and was hit by Pearce, who was traveling at speeds up to 84 miles per hour in an unmarked vehicle without emergency lights or a while in pursuit of a taxi passenger he believed was a murder suspect. His full-size SUV caved in the side of the smaller vehicle, and Harding died later at a hospital. His family is suing the county for $5 million.
Lee's report contains several new facts about the case, including some that may or may not contradict an incident report by another MCSO detective that describes the final minutes before the crash. Lee based her report on documents, conversations with lawyers, and the testimony of witnesses at a private hearing on November 13. Pearce was represented by local lawyer Kathryn Baillie, who didn't respond to a request for comment.
The report states that Pearce was driving north on 59th Avenue in Glendale about 3 p.m. when he and another deputy, who was in a different vehicle, were notified that a wanted murder suspect was on the move, having left his apartment and gotten into a taxi. This news caused Pearce and the other deputy, who isn't named in Lee's report, to speed up and "treat the assignment as an emergency."
According to a 2013 MCSO report by Detective Stephen Gerlach, the deputies were pursuing murder suspect Joseph Lee Gonzales, who had gunned down a 22-year-old man during a drug deal two days earlier. Gonzales was believed to be armed and dangerous. The agency received word that he might be hiding at a relative's apartment. On the day of the crash, detectives were staking out the apartment. Detective Felix (no first name given in the report) radioed that a black person in tan shorts and a dark T-shirt had just gotten into a taxi and might be Gonzales. Gerlach's report says Detective L. Anderson was following the taxi but couldn't positively identify the passenger because of dark, tinted windows. While Gerlach was following in a separate vehicle, Anderson moved alongside the taxi "several times" to see if they had the right person.
When the taxi turned into a business complex and stopped, Gerlach activated his lights and sirens. He was then joined by Detective Chris Osborn in a third vehicle, who pulled in front of the taxi, Gerlach's report states. They conducted a high-risk stop on the passenger — only to find a black woman who cursed at them for pointing guns at her.
The new report by the hearing officer doesn't mention more than one other detective in pursuit of the possible suspect or present a timeline that might somehow align with Gerlach's official account.
The MCSO didn't respond to a request for comment.
Lee's report states that "both deputies," meaning Pearce and an unnamed deputy, "believed they were the closest ones to assist the homicide detective and intercept the suspect." The "pursuing detective" didn't have tactical gear or tactical training. . Both deputies proceeded through two red lights "using due care," Lee wrote.
Although Pearce "believed" he was traveling at 55 mph, according to Lee's report, Glendale police estimated his true speed at 77 to 84 mph. The unnamed deputy claimed to be traveling at 55 to 60. The speed limit on 59th Avenue was 40 mph. Pearce still was going between 48 and 53 mph when he plowed into Harding's Nissan Cube. Pearce had been in a "loaner vehicle" because his own vehicle was having lights and sirens installed, Lee's report adds.
Neither report by Lee and Gerlach details just where Pearce was in relation to the other detectives in pursuit of Gonzales or if he'd received word that they had the wrong person before he crashed into Harding. The reports don't explain why Pearce needed to respond so quickly when at least three other pursuit cars were nearby, including one that had tried and failed to identify the taxi's passenger. The MCSO hasn't yet released its internal investigation report on the incident.
Spokeswoman Lisa Allen tells New Times it will be released 35 days after the Merit Commission sends the Sheriff's Office its signed order on Pearce's appeal. The order hadn't been received as of last week.
New Times inadvertently played a role in Pearce's speeding ticket, but Lee's report gets the facts wrong. As previously reported, Glendale City Judge Manuel Delgado initially allowed Pearce to take defensive-driving school for his speeding ticket until New Times put in a request for records about the case in March, tipping him off that the speeding case involved a death. Why a city prosecutor didn't make that clear to Delgado hasn't been answered by the city, despite repeated requests for comment.
"A complaint was filed with the judge who called a new hearing, overturned the decision for traffic school, and changed the charge to a Class 3 Misdemeanor," Lee's report states. Pearce "was told that the complaint was filed by New Times."
Whatever Pearce was told — that's not accurate: New Times filed no complaint against Pearce.
In any event, Lee found MCSO's delay of Pearce's internal investigation unacceptable, if not fishy. The agency began its internal probe of Pearce on July 10, 2014, a few weeks after County Attorney Bill Montgomery announced that Pearce would face no criminal charges. The internal probe wasn't completed until July 28, 2015 — after Pearce's speeding case was wrapped up.
Deputy Chief Edward Lopez, who oversaw the probe, testified that he would have found that Pearce violated rules requiring local laws to be followed and prohibiting "emergency driving without emergency lights and a siren" no matter what happened with the speeding ticket case in Glendale. Yet he continued to delay the completion of the probe.
By waiting, Pearce's eventual punishment because of the probe was automatically increased because of the misdemeanor charge that came long after the probe began, Lee notes in the report.
In addition, the December 2013 violation of policy was Pearce's first disciplinary offense. But he was also disciplined in August 2014, with another deputy: He received a written reprimand for not handling evidence properly. Lee points out that Lopez made the second violation count as a first offense for Pearce. This made his violation for the crash a second offense that merited a stiffer punishment. On top of that, the unnamed deputy who also admitted to running red lights without emergency lights or siren in his own vehicle was not investigated or disciplined.
Such is the state of internal investigations in today's MCSO, which has been scolded repeatedly by a federal judge for shoddy internal probes in the long-running Melendres racial-profiling case that also uncovered numerous instances of deputies improperly handling evidence.
Lopez told the hearing officer that he was instructed to count the first violation as a second violation by MCSO Human Resources, which "was directed by an assistant county attorney" to do so. Lopez also didn't consider that Harding "failed to yield" to Pearce and didn't look in Pearce's direction before making his turn, but did consider Pearce's past record, which includes "numerous commendations."
Pearce received a notice of dismissal, even though the agency didn't intend to dismiss him, and was notified of his 80-hour suspension in September. In the case, the County Attorney's office represented the Sheriff's Office, and both supposedly fought to give Pearce a tougher punishment for his violation than the minimum 40-hour suspension he could have received.
Lee wrote in her report that the MCSO treated two deputies differently, despite their committing the same offense — in other words, Pearce was investigated and disciplined while another deputy wasn't even investigated. MCSO policy doesn't state that employees will only be disciplined in the event of a traffic fatality, she noted: "One deputy cannot be disciplined while another" is not, considering they violated the same policy.
Lopez had no "convincing" justification for waiting to finish the internal report, according to Lee. Pearce's discipline, therefore, was excessive under MCSO's new "just cause" policy that went into effect in January 2015 based on the passage of the Officers' Bill of Rights law by the state Legislature. But even if the law wasn't in effect, Pearce still would have won his appeal because punishment cannot be "arbitrary and without reasonable cause."
Lopez's testimony that he would have imposed an 80-hour suspension even for a first offense "was not credible and does not withstand logic" because Lopez asked the county's HR department whether the violation should be counted as a first or second offense, she wrote.
"If he had already concluded that the traffic fatality increased [Pearce's punishment] to an 80-hour suspension, it would not have mattered to him if it were a first or second offense," Lee wrote. If the Sheriff's Office wants to punish deputies who accidentally kill citizens more severely, Lee said, the agency "should insert wording into the policy."
Richard Cruz, who's handling the Harding family's lawsuit, hadn't seen the hearing officer's report and could not immediately comment about it.
See below for Hearing Officer Lee's report: