1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A. Merritt, Jr.,

Plaintiff,

v. 

State of Arizona, et al.,

Defendants.

No. CV-17-04540-PHX-DGC

ORDER 

Defendant State of Arizona has filed a renewed motion to restrict Plaintiff and his 

counsel from making extra-judicial comments about this case to the press. Doc. 385. The 

motion is fully briefed, and the Court held a hearing on September 17, 2020. The Court 

will preclude Plaintiff’s counsel from making further extra-judicial comments to the media 

about this case or the state court proceedings, as specified below. The Court will not permit 

the depositions of attorney Jason Lamm or Plaintiff’s father, or instruct Plaintiff that any 

further comments will result in the loss of a jury trial, as Defendant requests. The Court 

will determine appropriate remedies if this order is violated.

Having watched Mr. Lamm’s August 17 and 18, 2020 interviews on Good Morning 

Arizona (3TV/CBS 5), the Court agrees with Defendant that Mr. Lamm made comments 

that present a “substantial likelihood of material prejudice” to the trial. Gentile v. State 

Bar of Nev., 501 U.S. 1030, 1075 (1991); see LRCiv 83.8(a), ER 3.6(a). Mr. Lamm offered 

opinions about two key issues in this case – the lawfulness of Plaintiff’s arrest and 
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff’s alleged damages – when he made the following statements during the interviews 

(see Doc. 385 at 14-16):

August 17, 2020 Interview

• “There’s no evidence, there was no evidence from day one” (at 1:40-43);

• “While a court may clear you, the internet doesn’t” (at 2:17-22);

• “The I-10 freeway shootings is a phenomenon that Leslie Merritt is still 

going to have to live with for the rest of his life, no matter what a judge says” 

(at 2:27-35) (this statement is also replayed in the prelude to the August 18 

interview (at 4:35-50)).

August 18, 2020 Interview

• “I can’t believe we’ve been talking about this for five years, still no evidence” 

(at 1:27-32);

• To obtain a clearance under A.R.S. § 13-4051, a defendant has “the burden 

of proof of showing that they were wrongfully arrested” (at 2:05-15);

• “While a court order is really significant, . . . you can’t scrub the internet,” 

and Governor Ducey’s “We got him!” tweet “doesn’t get erased” (at 2:53-

3:18);

• “This young man is going to have to live with this the rest of his life” 

(at 3:28-31);

• Plaintiff “lives with this still every day of his life, there’s not a day he doesn’t 

think about it, he still has nightmares, . . . he’s still paranoid that someone’s 

gonna kick his door in because it already happened once for crimes he didn’t 

commit” (at 4:35-50).

While the state court’s notation of clearance was newsworthy, the Court does not 

accept Mr. Lamm’s assertion that he was responding to media inquiries “solely in his 

capacity [as a criminal defense attorney] legitimately to counteract the undue prejudicial 

effect on Mr. Merritt of persistent negative statements.” Doc. 391 at 3. Mr. Lamm’s 

position as counsel for Plaintiff cannot be so easily compartmentalized. He knows a trial 
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

is approaching in this case and he fully understood that his statements about Plaintiff would 

be directly relevant to key issues in the trial and would be widely disseminated. 

Mr. Lamm asserts that “the ethical rules permit and the legal rules require a lawyer 

‘to protect a client from the substantial undue prejudicial effect of recent publicity not 

initiated by the lawyer or the lawyer’s client.’” Id. at 5 (quoting ER 3.6(c); emphasis 

added). But he cites no recent publicity about this case. The published statements and 

“media campaign” that he references are years old. Id. at 5-6. Mr. Lamm’s recent 

statements that bear directly on this case were not “justified and required responses to the 

public allegations of Defendants and others.” Id. at 6. Nor were the statements “confined 

to and incorporated [sic] only items already in the public record, as required under 

LRCiv 83.8(a).” Id. at 7.

“The Court is empowered to issue a restraining order prohibiting trial participants 

from communicating with the media where ‘excessive trial publicity’ endangers the 

fairness of the judicial process.” Mizioch v. Montoya, No. CV10-01728-PHX-JAT, 2011 

WL 4900033, at *6 (D. Ariz. Oct. 14, 2011) (quoting Levine v. U.S. Dist. Ct. for the Cent.

Dist. of Cal., 764 F.2d 590, 600-01 (9th Cir.1985)); see also Local Rule of Civil Procedure 

83.8(b) (stating that “[i]n a widely publicized or sensational case” the Court “may issue a 

special order [prohibiting extrajudicial statements] similar to that provided for by Rule 

57.2(f), Local Rules of Criminal Procedure”). The Court finds that Mr. Lamm’s press 

statements present a “substantial likelihood of material prejudice” to the trial, which is now 

only weeks away. Gentile, 501 U.S. at 1075. “[T]his type of publicity has a greater 

potential for prejudice than publicity months in advance of trial.” Levine, 764 F.2d at 598. 

The Court accordingly will enter an order limiting further comments. The Court is 

confident that at trial any existing prejudice can be eliminated through the use of a juror 

questionnaire, careful voir dire, and clear jury instructions.1 

1 Plaintiff cites Beasley v. Glenn, 520 P.2d 310, 311 (1974), for the proposition that the 

“Arizona legislature expressed specific concern during the passage of legislation (that was 

codified as A.R.S. § 13-4051), with the ‘economic and personal harm resulting to an 

individual’ for a crime he did not commit.” Id. But Beasley did not address the propriety 

of extra-judicial statements about such harm where the defendant brings a civil suit.
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

During the hearing on this motion, Plaintiff’s counsel offered to agree, on behalf of 

themselves and Plaintiff, not to talk to the press before trial. This certainly would eliminate 

any risk of further prejudice, but as far as a court order is concerned, the Ninth Circuit 

made clear in Levine that the order must be drawn narrowly to address the issues raised by 

pretrial publicity. “[T]he district court must determine which types of extrajudicial 

statements pose a serious and imminent threat to the administration of justice in this case. 

The district court then must fashion an order specifying the proscribed types of statements.” 

Id. at 599. The Court will specify the proscribed statements below.

The Facebook post by Plaintiff’s father is also troubling. He stated that the superior 

court judge declared in the notation of clearance that Plaintiff “was not only LEGALLY 

INNOCENT BUT WAS ALSO WRONGFULLY ARRESTED as the Arizona I-10 

shooter.” (The post is displayed during the August 17 interview on Good Morning Arizona 

at 1:21.) (Emphasis in original.) This was a direct comment on a central issue in this case: 

whether Plaintiff was wrongfully arrested. But Plaintiff’s father is not a lawyer in this case, 

and the Supreme Court has made clear that greater regulations can be placed on lawyers’

pretrial statements because of the unique role they play in our judicial system. “Lawyers 

representing clients in pending cases are key participants in the . . . justice system, and the 

State may demand some adherence to the precepts of that system in regulating their speech 

as well as their conduct.” Gentile, 501 U.S. at 1074; see also id. (“Because lawyers have 

special access to information through discovery and client communications, their 

extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’

statements are likely to be received as especially authoritative.”). The Court will not at this 

time enter an order restraining the pretrial statements of Plaintiff’s father, but if he makes 

further statements that threaten the fairness of the trial, Defendant may renew its request 

with the Court. See LRCiv. 83.8(b) (“In a widely publicized or sensational case” the Court 

“may issue a special order [prohibiting extrajudicial statements] similar to that provided 

for by Rule 57.2(f), Local Rules of Criminal Procedure”); LRCrim 57.2(f) (“In a widely 

publicized or sensational criminal case, the Court . . . may issue a special order governing 
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

such matters as extrajudicial statements by parties and witnesses likely to interfere with the 

rights of the accused to a fair trial by an impartial jury.”) (emphasis added).

Finally, the Court concludes that depositions of Mr. Lamm and Plaintiff’s father are 

not necessary to address the issues raised by Defendant’s motion. 

IT IS ORDERED:

1. Between now and the end of trial, Plaintiff and Plaintiff’s counsel are ordered 

not to make statements to the press, or cause such statements to be made by others, that 

(a) concern the legitimacy of Plaintiff’s arrest or the charges against him; (b) concern the 

consequences of his arrest and indictment, including his alleged injuries and damages; or 

(c) comment on the conduct of Defendant or others in arresting and detaining Plaintiff.

2. Defendant’s motion (Doc. 385) is granted in part and denied in part as set 

forth above.

Dated this 17th day of September, 2020.