Lawyers for a group of protesters charged with "assisting a criminal street gang" following an October anti-police brutality demonstration in Phoenix are accusing prosecutors of misleading a grand jury and concocting a fictitious gang.
Defense attorneys for the group filed a series of motions recently demanding the cases be thrown out or sent back to the grand jury.
Fifteen adults and three teens were arrested by Phoenix police at the October 17 demonstration in downtown Phoenix after they marched in the street, toppled barricades, and allegedly tossed smoke bombs. The Maricopa County Attorney's Office subsequently obtained grand jury indictments for 15 of them on a count of assisting a criminal street gang, a felony offense, along with other charges like rioting and obstructing a public thoroughfare. Advocacy groups like the American Civil Liberties Union of Arizona have called for the charges to be dropped, accusing police and prosecutors of political persecution.
Public defenders for the group say the cases should be dismissed or sent back to the grand jury for a "redetermination of probable cause." They accuse the lead prosecutor on the case, April Sponsel, a former gang prosecutor, of "withholding exculpatory evidence" from the grand jury and say she "repeatedly vouched" for, and "failed to correct inaccurate or misleading testimony" from police officers.
In grand jury proceedings, the only parties present are members of the grand jury, prosecutors, their witnesses, and a court reporter. Defendants and their lawyers are not allowed to attend or present different evidence or counter-arguments. Critics of the process argue that it is one-sided to benefit prosecutors.
Jennifer Liewer, a spokesperson for the Maricopa County Attorney's Office, did not respond to Phoenix New Times' request for comment on the allegations made in the motions.
The motions, which were filed on January 29 and February 8, take aim at the opening statement that Sponsel gave to the grand jury on October 27, 2020. Police who testified before the jury accused the protesters of being part of a violent criminal street gang called "ACAB" — "ACAB" means "All Cops Are Bastards," a phrase commonly used at protests against police violence — because they wore all-black clothing, chanted the phrase, and put it on signs, according to transcripts that were entered into the court record.
Sponsel presented the idea that ACAB is a gang as established fact in her opening statement.
"Several individuals with an organization known as ACAB, also known as All Cops Are Bastards, met down in downtown Phoenix in order to participate in a riot. These individuals entered into the streets with umbrellas that shielded them from the police officers. They then turned around and threw smoke bombs at police officers. They then eventually were arrested after throwing barricades and things of that nature into the streets," Sponsel said. She went on to claim that officers were "assaulted" by protesters because they dug "their nails" into the "hands and arms" of officers to disrupt arrests.
The defense attorneys argue that Sponsel's statement amounted to a misleading presentation of unproven assertions that skewed the perspective of members of the grand jury.
"The prosecutor chose to give testimony and personal opinion under the thin guise of an 'opening statement,'" reads a motion filed on February 8 by Matthew Burow, an attorney with the Office of the Legal Advocate who is representing defendant Brenda Guadalupe Diaz. "'The prosecutor states that all these individuals belong to a fictitious 'ACAB' gang. That statement is simply an opinion. In order to sustain the charge of Assisting a Criminal Street Gang, the grand jurors must listen first to witness testimony before deliberating."
The motion went on to accuse Sponsel of effectively becoming a "testifying witness" during the process.
"ACAB is not a gang. It’s literally a phrase that has been used for decades. There are punk songs, British punk songs about it," Jared Keenan, a senior staff attorney with the American Civil Liberties of Arizona, told Phoenix New Times. "To say that it is a gang is absurd."
Doug McBride, a sergeant with the Phoenix Police Department and a former gang detective, told the grand jury that the so-called "ACAB" gang is similar to well-known violent gangs like the Bloods, Crips, and the Hells Angels, according to court transcripts. He claimed that the group attempts to "commit violent acts of aggravated assault against police" on a weekly basis, and that their members "sharpen their fingernails" into points and "dig into" officers' hands to disrupt arrests.
The same motion goes on to argue that prosecutors failed to present exculpatory evidence that would negate the finding of probable cause that Diaz was part of a criminal street gang. It cites police body camera footage that shows protesters chanting other phrases like "black lives matter" and the name of people killed by law enforcement, like Dion Johnson.
"The State contends that 'ACAB' is not a political slogan but is a criminal street gang," the motion reads. "This missing exculpatory evidence would have been vital to the grand jury. The grand jury could have easily determined that the chant of 'ACAB' was not made in effort to identify with any criminal street gang, but rather, to bring awareness of important social issues. 'ACAB' — while admittedly rude and unseemly — is an appropriate form of expression worthy of the public square and protected under bedrock and sacrosanct principles of free speech in this country."
A defense motion dated January 29 says prosecutors failed to disclose exculpatory evidence against defendant Ryder Collins, and failed to correct "misleading testimony" by officers.
Collins, a resident of Prescott Valley, was in downtown Phoenix on the night of the October protest to take photographs when he stumbled upon the protesters, according to the motion. Video of the protest recorded by Jennifer Harrison, the controversial leader of the right-wing AZ Patriots, captured Collins asking Harrison and the person she was with about the protesters. The exchange happens at around the 20-minute mark of the video recorded by Harris, embedded below.
"Um, this little group of commies is running around, knocking over signs, they've got their umbrellas ... Antifa," Harrison says.
Collins responds, "I came down here from Prescott, just doing street photography, and then I saw this shit pop off."
He then follows the protest until a Phoenix police officer, identified in the motion as Sergeant Groat, orders him out of the street while he's crossing in a marked crosswalk. Collins walks away from the area. The same officer also yells out, presumably to a fellow officer, "Spider, watch that guy right there, he's with them, gray backpack!"
At the same time, Harrison was nearby in the middle of the intersection and was told multiple times by Groat to get out of the road. The motion alleges that Groat's body-camera footage shows officers deciding not to arrest Harrison and the woman she was with, a move that "illustrates what appears to be an arbitrary decision to arrest Mr. Collins, and not to arrest the two individuals who were in the intersection and required multiple warnings to vacate."
Collins told arresting officers that he was from Prescott Valley and had no prior knowledge of the protest.
"Hey guys, um I live in Prescott, Valley, um yah, I'm a nurse in Prescott," he said. "I come out here to do photography I didn't know this was a thing 'til about a half hour ago."
One officer responded, "Shoulda stayed in Prescott."
Later, during booking, another officer's body camera footage showed defendant Riley Behrens stating that Collins wasn't involved in the protest.
"That kid in there in the back-right corner, like, was not part of the protest at all," Behrens said.
During the grand jury proceedings, Sponsel asked Phoenix Police Officer Jefferey Raymond, "With regards to Ryder Collins, when officers were trying to get a handle on the entire group, did he actually run up on officers and try to impede their ability to take these individuals under arrest by running up on the officers trying to distract them?"
Raymond answered, "Yes."
When Sponsol questioned McBride, she asked him if it appeared that Collins was "working in concert" with the protesters. McBride said, "Yes, he did." He also said that Collins was "in and around the group throughout the entire night."
But the motion alleges that Sponsel "had in her possession" footage that would have showed that Collins was not with the protesters at the beginning of the event and that she showed selective portions of it to the grand jury. Additionally, Sponsel allegedly had access to Groat's footage showing Collins walking in a crosswalk and complying when ordered to get out of the street, audio of the conversation between Groat and his commander regarding not arresting Harris, and video of Collins' arrest. Other video that prosecutors had in their possession allegedly shows an officer questioning the legality of Collins' arrest during booking.
All of this evidence was allegedly withheld from the grand jury.
"Ms. Sponsel took it upon herself to testify to the grand jury and create a narrative which would fit the indictment she wished to be returned against Mr. Collins and his co-defendants," the motion goes on the state.
Keenan said that the motions represent egregious prosecutorial misconduct.
"She’s presenting lies to the grand jury, false testimony, and even if it was arguably true, she’s then under an obligation to show the videos that undercut that testimony. She did neither," Keenan said. "Speaking out against police violence is in no way equivalent to attempting to target police as a gang. To suggest that is problematic to the First Amendment, to a free society, and to the very foundation of our country. I can’t stress enough how troubling these prosecutions are."
UPDATE: Office of Maricopa County Attorney Allister Adel released a short statement about its February 12 motion to dismiss the case against the protesters. The state is moving to dismiss the cases "in the interest of justice," the motions state.
“The Maricopa County Attorney's Office (MCAO) has filed a motion to dismiss case CR 2020-139581. The office is re-evaluating the evidence that has been and continues to be submitted for review. MCAO remains committed to holding those who committed criminal acts in this event responsible.”
Attached is the Motion to Dismiss for Ryder Collins as an example of what has been filed for each defendant in this case."
See below for the related attachments released by Adel's office: