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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Jonathan G. Brinson (#025045) 

jbrinson@polsinelli.com 

Andrew T. Fox (#034581) 

afox@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendants State of Arizona, Silbert,

Kalkowski, Milstead, Hunter, Heape, Pinnow, and Falcone 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., a single man, 

Plaintiff, 

vs. 

State of Arizona, a body politic; Bill 

Montgomery, the elected Maricopa 

County Attorney, in his official and 

individual capacities; Maricopa County, 

a body politic; Heston Silbert, in his 

individual capacity; Christopher 

Kalkowski, in his individual capacity; 

Frank Milstead, in his individual 

capacity; Ken Hunter, in his individual 

capacity; Kelly M. Heape, in his 

individual capacity; Jennifer Pinnow, in 

her individual capacity, Anthony 

Falcone, in his individual capacity; 

Edward Leiter, in his individual 

capacity; Vanessa Losicco, in her 

individual capacity. 

Defendants. 

Case No. CV17-4540-PHX-DGC 

DEFENDANT STATE OF ARIZONA’S 

MOTION IN LIMINE (SIXTH) RE: 

ALLEGED FABRICATION OF 

EVIDENCE; PERJURY; AND 

WITHHOLDING OF EXCULPATORY 

INFORMATION 
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 Defendant moves to preclude Plaintiff from arguing or introducing evidence of 

matters the Court has already determined “no reasonable juror could find.” First, Defendant 

moves to preclude Plaintiff from arguing or introducing evidence that the DPS crime lab 

fabricated results, which the Court has already found that “no reasonable juror could find.” 

At summary judgment, Plaintiff argued among other things, that the DPS Crime lab 

fabricated evidence.1 In response to this argument, the Court found the following: 

• “[Plaintiff] failed to provide sufficient evidence from which a jury reasonably could 

find that the ballistics results were intentionally fabricated.” (Doc. 278 at 29.) 

• “[Plaintiff] has not presented evidence that Kalkowski knowingly falsified evidence. 

Even the expert witness hired by Plaintiff to criticize Kalkowski’s findings did not 

opine that he fabricated evidence[.]” (Id. at 32.) 

• “The Court concludes that Plaintiff has failed to provide sufficient evidence from 

which a reasonable jury could find that Defendants fabricated the ballistics 

evidence.” (Id. at 33.) 

• “None of [Plaintiff’s] evidence would support a finding that the certified laboratory 

technicians fabricated the evidence against Plaintiff with malice and bad faith.” (Id.

at 34.) 

 Next, Defendant moves to preclude Plaintiff from arguing or introducing evidence 

that Officer Baroldy allegedly fabricated testimony and perjured himself in front of the 

Maricopa Superior Court Grand Jury. The Court already eliminated this argument, finding 

that “Plaintiff has not presented evidence from which a reasonable jury could conclude that 

Defendants misled the grand jury with respect to Hackbarth’s interviews.” (Id. at 24.) “Nor 

does Plaintiff’s other evidence prove perjury in the grand jury proceeding.” (Id. at 27.) 

 

1

 In its order, the Court notes that at most the evidence could support a jury finding that 

“Kalkowski’s match was incorrect, even negligent,” but there is no claim in this case for 

negligence. Moreover, even if Kalkowski’s identification was incorrect (which it was not) 

this is not relevant unless Plaintiff can show that a reasonable officer would have known as 

much. 
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 Finally, Defendant moves to preclude Plaintiff from arguing or introducing evidence 

that Defendant allegedly withheld exculpatory evidence from Plaintiff, including: (1) a 

license plate reader (“LPR”) report; (2) the “honeypot” website; (3) evidence obtained from 

pole cameras; and (4) the report of Hackbarth’s second interview. (Id. at 19-20) At 

summary judgment, the Court concluded, among other things, that a reasonable jury could 

not find that the State withheld exculpatory information. (See, e.g., id. at 40 (“Plaintiff has 

not provided sufficient facts to show . . . withholding of exculpatory information.”).) The 

Court also found that none of the allegedly withheld material was clearly exculpatory. 

Moreover, any such evidence on this issue is irrelevant to the claims at issue because 

withholding of evidence is not an element of wrongful arrest/false imprisonment. 

 Accordingly, the State requests the following order: The Parties are precluded from 

arguing or introducing evidence on matters the Court has already determined no reasonable 

jury could find, including: (1) DPS fabricated ballistics results; (2) Officer Baroldy perjured 

himself; and (3) DPS withheld exculpatory information related to LPR, Honeypot, pole 

cameras, or Hackbarth’s second interview.2 

 RESPECTFULLY SUBMITTED this 27th day of February, 2020. 

POLSINELLI PC 

By: /s/ Jonathan G. Brinson 

Edward F. Novak 

Melissa Ho 

Jonathan G. Brinson 

Andrew T. Fox 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 

 

2 The State has complied with LRCiv. 7.2(l), and certifies that it had a meet and confer in an 

effort to resolve the disputed evidentiary issue.
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 27th day of February, 2020, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 

Clerk of the Court 

United States District Court, District of Arizona 

Sandra Day O’Connor Courthouse 

401 W. Washington Street 

Phoenix, AZ 85003 

Jason D. Lamm 

Law Office of Jason Lamm 

2501 N. Seventh Street 

Phoenix, Arizona 85006 

jlamm@cyberlawaz.com 

 By: /s/ Erika Cano