Skid Row

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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.

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Patti Epler
Contact: Patti Epler