Skid Row

Cindy Stewart was killed in a car wreck on state Highway 89 near Prescott on a hot and rainy August day in 1994.

Never mind that she was the mother of four, including 7-year-old twins, on her way to pick up a 14-year-old daughter from band camp at Mingus Mountain.

More scintillating is that she was an exotic dancer at Bourbon Street Circus in Phoenix. And that she brought some methamphetamine along for the ride. And that she shared the drug with the driver, her best friend, Andrea Perdue.

Perdue--who was driving north in an on-again, off-again rainstorm--thinks she hit a puddle near the Word of Life Church. Perdue, a school-bus driver who held a chauffeur's license, says she tried to steer into the skid as she'd been taught. But when she put on the brake, she spun sideways in her own lane and shot across the road into the path of a southbound Honda, which creamed her 1993 Geo Prizm on the passenger side. Cindy Stewart's neck was broken, her head turned backward, her arm severed.

Stewart's family sued not only Perdue but the state as well, alleging that flaws in the road's surface and shoddy maintenance caused the accident.

Predictably, the state argued that the drugs were to blame and the condition of the road was not a factor. The state was so sure it would win this case, it offered the Stewart family $5,000 to settle before trial, and never bettered that offer.

The jury might have bought the meth theory and been done with it. But it didn't, and the state's legerdemain in the case, and its lax upkeep of its roads, were big reasons.

In the end, jurors believed that the assistant state attorneys who defended the state--Deborah Spinner and Terrence Harrison--tried to hide test results and reports that suggested the road might have been in bad shape. The jury also suspected that the two assistant AGs destroyed evidence, including blood samples that might have showed Perdue was not impaired at the time of the accident. At the same time, jurors thought the state Department of Transportation employees who testified were less than credible. One changed his story about road-test results after his boss told him the boss's own testimony.

It didn't help the state's case that the judge nailed Spinner several times during trial, even stopping the proceedings to instruct the jurors that she was wrong or in violation of a court order.

Now, Arizona taxpayers are on the hook for nearly $1 million--the state's share of the $3.79 million verdict the jury decided was due the Stewart family.

And the case, which finally went to trial in January after pre-trial haggling dragged on for nearly four years, raises questions about the safety of Arizona's highways and the state program that is supposed to inspect them.

"I came out of the case saying I think the state stunk," says James Tramel, a 62-year-old aerospace engineer who served as a juror.

He was one of two jurors who refused to sign the verdict form. Six jurors did sign it. Tramel won't say exactly why he didn't sign, only that he disagreed with the verdict. But lawyers who spoke to the jurors after the trial say Tramel and another juror told them they thought the state deserved more punishment.

"The jurors were not trying to stick it to the taxpayers," Tramel says now. "I think every one would say it was the state's presentation, and if they hadn't looked like they were trying to hide things, it would have been a much different case."

Yavapai County declined to prosecute Perdue for the accident even though a blood test showed the presence of methamphetamine in her blood. Officers said she didn't seem to be impaired when they talked to her at the scene, and she wasn't speeding.

The jury assigned 60 percent of the blame to Perdue. Her attorney says she has no money and no job; her insurance policy will only pay $50,000 if the verdict is upheld.

Jurors tapped the state for 25 percent of the damages, which works out to about $940,000. In acknowledgement that illegal drugs were a factor that couldn't be ignored, the other 15 percent of the blame was put on Stewart herself.

Two weeks ago, the state filed a notice that it would appeal the verdict. Citing that appeal, Karie Dozer, spokeswoman for the Attorney General's Office, says no one from her agency feels comfortable discussing the Stewart trial.

"They don't want to be talking about it out of school," Dozer says. She also declined to address whether anyone in the AG's Office has reviewed Spinner and Harrison's conduct. There are no complaints or disciplinary action against either Spinner or Harrison on file with the state bar association.

The state, in a motion for a new trial that was rejected last month, cites about two dozen things it thinks Maricopa County Superior Court Judge Alfred Rogers did wrong during the trial. Those range from testimony he allowed to instructions he gave the jury during trial--including derisive comments on the state attorneys. "We did not believe those [instructions] were used correctly in the civil court," Dozer says.

For its part, the state Department of Transportation won't discuss any highway safety concerns raised by the case. ADOT public information officer William Rawson, who is not familiar with the case, says it's his policy not to talk about anything having to do with any lawsuit. He declined to address statements about road repairs and inspection programs by ADOT officials during their testimony. He says no one else in the agency will talk about such matters either, although he apparently didn't ask anyone else if they would.

But he does suggest that the jury may have had its eye more on the state's checkbook than its road program.

"Speaking in very general terms," Rawson says, "we have very deep pockets and people tend to react to that, including juries and judges."

One of the things Rawson won't talk about is how ADOT inspects Arizona's highways and how long it takes the state to fix potentially deadly road problems.

Cindy Stewart's family alleged that the spot where the accident occurred, the northbound lane of Highway 89 at Milepost 315.5, suffered from two fatal flaws: a condition called "bleeding asphalt" where oil in the road seeps to the surface, especially in hot weather, giving the pavement a glossy look; and unevenly worn wheel paths.

Moreover, on that 105-degree August afternoon, a summer thunderstorm had dumped water on the highway. And it apparently puddled on the strip of oil-slick pavement where a poorly engineered driveway at the Word of Life Church funneled it onto the road. (The state had approved the church construction project, so the church was not brought into the lawsuit.)

The "blue Honda was right in front of me traveling at approximately 50 mph traveling south," eyewitness Betty Lembach of Prescott Valley told the police officers who investigated the accident. "The white car was going north and must have hit a slick spot in the road and turned right into the blue car. There was no way for them to keep from hitting each other at that time."

But the car in which Cindy Stewart was riding didn't just skid or hydroplane on a wet road, the family contends. There were no skid marks. They say the car spun sideways in its own lane, something that happens if the lane has been worn down unevenly. They say eyewitness reports like Lembach's as well as the state's own highway tests back up this theory.

The state has been aware of the potential hazards of uneven wheel paths since 1975. That's when a state research engineer named John Burns studied the effects of what he called "differential friction," especially in wet conditions, and evaluated the effectiveness of the state inspection program that tests wheel paths.

"Results of the program have shown that differential friction can cause an extremely hazardous condition for a braking vehicle," Burns wrote in his 1975 report. He recommended that the state rethink the way it tests wheel paths to better catch significant differences in friction levels.

But the state never changed its testing method, according to ADOT engineer James Delton, who testified at the Stewart trial. So 23 years after Burns raised the red flag about differential friction, the state still checks only one wheel path, rather than checking both to see if one is remarkably different from the other.

"In 1975, you only tested one wheel path, and in 1997 you only test one wheel path, correct?" Terry McGillicuddy, attorney for the Stewart family, asked Delton during the trial.

"That's correct," replied Delton, who described himself as a pavement-management engineer who oversees the group that checks the friction of the roads, among other things.

Pressed by McGillicuddy, Delton conceded that the state could measure both wheel paths by adding one employee.

The stretch of highway where Cindy Stewart died had not been resurfaced in 17 years, state engineers testified. No one knows what shape the road was in at the time of the accident or even in the months following it. Not only had the state not tested it, but when Stewart's family asked for the state's permission to send an accident specialist there to try to replicate the accident, they were told they'd have to post a $10 million bond. An accident reconstructionist for the plaintiffs inspected the road and took photos, which he says clearly showed bleeding asphalt. McGillicuddy says the state effectively stopped the family from proving there were flaws in the road by asking for the exorbitantly high bond.

And when attorneys for the Stewart family tried to get readings for the single wheel path of the northbound lane of that stretch of Highway 89, they were told they didn't exist. It seems the state not only tests just one wheel path, it also tests only one lane of a two-lane highway.

The state measures friction by dragging a computerized device, called a Mu-Meter, behind one wheel of a truck, according to ADOT officials who testified at trial. They take readings only at milepost markers, where they engage the Mu-Meter by turning it at an angle so it drags. They also spray water on that stretch of road so that the measurement is taken on a wet road surface.

State highway workers, according to Delton and others who testified at trial, try to run friction tests and inspections of much--but not all--of the state highway system "every year or so," following predetermined routes in certain areas of the state. But they only travel one direction, in one lane. That's partly because they need lots of water for the test and their truck can hold only so much. It's inconvenient, they said, to go back and forth for water. So they just keep moving ahead.

On Highway 89, the test crew always travels south. Delton and others testified that the northbound lane had never been tested. And the southbound lane hadn't been checked in the four years prior to the accident. No one knew why, the state officials testified.

Still, the effect of bleeding asphalt and differential friction was something that state engineers decided to investigate before the Stewart case went to trial. Delton testified that he knew of a section of highway that seemed like an ideal spot to test the effects of bleeding asphalt--Highway 87 near Chandler.

Delton said he'd driven Highway 87 and been suspicious of it for some time. In fact, he later testified, the road had been in poor shape for as long as nine months before the state decided to use it as a laboratory for a spin-out. State engineers checked old test records and agreed there might be a problem both with friction and with bleeding asphalt.

In May 1996, Delton and Steve Maynard, an engineering technician who worked for Delton, blocked off the road and conducted controlled tests. At 60 miles per hour on wet pavement, their car spun in its own lane, just as Burns had predicted would happen in his 1975 report. And just as Cindy Stewart's car had done on Highway 89.

Delton and Maynard also decided to try the test on nearby Highway 587, south of Sun Lakes, a road that did not seem to be in bad shape. The test vehicle, according to notes Maynard took at the time, spun out on at least four different runs.

Even then, it took the state another few months to resurface the slick spot they'd discovered on Highway 87, according to testimony in the case. And it's unknown whether the state has ever corrected the problem the engineers found on Highway 587.

Rawson, the ADOT spokesman, won't talk about it.

The state's tests of Highway 87 and Highway 587 were its undoing at trial. Juror James Tramel says he and his colleagues believed the state tried to hide those test results from them.

The state didn't mention the tests to Stewart's lawyers until just a few weeks before trial. McGillicuddy says he learned about them only because he'd forced Delton, the engineer, to come back for a third deposition.

The lawyerly wrangling leading up to the Stewart trial was remarkably contentious, taking four years and two special masters to sort out who had to give what evidence to whom.

"The state embarked on a course of conduct that made a mockery of the discovery process and the judicial system," says McGillicuddy.

The state disagrees with McGillicuddy's contention. That's plain from the numerous motions and responses to the plaintiff's motions that are on file in the case.

In December, about a month before trial, assistant AG Deborah Spinner filed a motion she called "Conspiracy Theory(ies)." She notes that lawyers for Stewart and Perdue accused Spinner of "manipulating the witnesses and convincing them to change their testimony to be more favorable to the state."

"These attacks are nothing but a last-ditch effort to save a very weak case," Spinner wrote. "The case should be tried on the merits, not on the mud that can be thrown."

Still, in one of several motions asking that the state's attorneys be sanctioned for their behavior, McGillicuddy complained that the Stewart family was forced to spend thousands of dollars and hundreds of unnecessary hours to obtain depositions, records, transcripts and other information that in most cases would be routinely handed over.

For instance, McGillicuddy says he found out about the 1975 Burns report only because he was reviewing the files of another lawyer who had tried a similar accident case against the state. McGillicuddy says that even though Terry Harrison, one of the assistant attorneys general in the Stewart case, had used the report in the case two years earlier, he never mentioned it to McGillicuddy.

Samples of Perdue's blood turned over to the state by Yavapai County were destroyed before Perdue's lawyer could have it tested. Michael Perry, who represented Perdue, says that effectively barred him from proving that Perdue was not impaired at the time of the wreck because neither the county nor the state quantified how much methamphetamine was in Perdue's system, only that some was found.

Normally, Perry says, "you at least invite a representative of the accused to observe the test."

One incident that sent the Stewart family's lawyers racing for the judge's office occurred during Delton's third deposition. The incident struck a chord with the jury. During deliberations, jurors sent a note to Judge Rogers asking him for more details on the incident.

Here's what happened: McGillicuddy asked Delton a technical question. "Well, in your opinion, is a .26 coefficient of friction a sufficient road surface friction level for safe travel of people using Arizona highways?"

Harrison, who represented the state at the deposition, told Delton not to answer. McGillicuddy picked up his phone and called a special master--a kind of referee appointed to settle such disputes. The special master instructed Delton to answer the question.

Instead, Harrison started to take Delton out of the room to discuss the question. McGillicuddy objected, saying it was against the rules to take a witness out of the room before he answered a question.

Harrison did it anyway, and the special master as well as the judge agreed Harrison violated court rules when he did it.

But instead of fining Harrison or sanctioning him privately, Judge Rogers opted to let the jury know all about the breach of rules. And that reflected very badly on the state's credibility, according to juror Tramel and lawyers in the case.

"To take him out left the impression he was being coached," Tramel says.
It wasn't the first time Judge Rogers had slammed the state attorneys. Spinner, the lead assistant AG on the case, had barely finished her opening statement when the judge admonished jurors that she had misled them by suggesting they would hear that no other drivers lost control on Highway 89 the day of the accident. Rogers, however, had already ruled that evidence of other accidents--or lack of accidents--was inadmissible.

"I don't have the slightest idea whether or not there were other accidents on the date in question," Rogers told the jury. "But what I do know is there will be no evidence presented on this issue. And the statement made by Miss Spinner was wrong and should not have been made and I am instructing you to disregard that statement.

"And please, I'd appreciate it if you make a note of that in your notebook, please."

But it was Maynard, the engineering technician who had participated in the tests on highways 87 and 587, who perhaps most undermined the state's credibility. Maynard changed his testimony about those tests after Delton, his boss, told him their stories didn't match.

"I honestly believe in my heart that [saving his job] was his biggest consideration," says Tramel.

Maynard had told Stewart's attorneys during his deposition that when they did the road tests, their car had spun out several times--"did a bunch of 360s down the road," was how he described it. That was in December 1997, and Maynard went into his deposition as soon as Delton was finished with his, so the two didn't have a chance to talk, McGillicuddy says.

But when he got on the witness stand during trial in January, Maynard said he could only remember one test run in which the car "rotated." He said he'd met with the state's attorneys the week before to go over his deposition. Later, Delton acknowledged under questioning from Perry that he'd told Maynard he'd better review the notes he'd taken that day because that wasn't how Delton remembered it.

The fact that Maynard had even taken notes during the road tests also proved to be another black mark against the state. Even though his subpoena before his deposition called for him to bring any notes, Maynard never produced them. When he mentioned them in court in January, Judge Rogers quickly ordered him to retrieve them.

When Maynard returned to the stand, his notes reflected not only that the test vehicle had spun out on Highway 87 but that it had also spun out at least four times on Highway 587.

As the jury was preparing to deliberate, Rogers issued an unusual instruction. He told jurors they could infer that any evidence they felt the state tried to hide or destroy could be considered adverse to the state's position.

Tramel was one who applauded Rogers' get-tough attitude toward the state's attorneys. He says he's always believed the state should hold to the highest standards--and play fair.

"I don't think anybody on that jury believed Terry McGillicuddy was the second coming of Christ," he says.

"But Mr. McGillicuddy was able to make credible the idea that the state had not been forthcoming, that the state had tried to prevent the jury from hearing evidence, that the state had chosen to play a smoke-and-mirrors game."

Contact Patti Epler at her online address: [email protected]

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Patti Epler
Contact: Patti Epler