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Jason D. Lamm (018454)

Law Office of Jason Lamm

2501 North Seventh Street

Phoenix, Arizona 85006-1062

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

Attorney for Plaintiff Leslie A. Merritt, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A Merritt, Jr., a single man,

Plaintiff,

vs.

State of Arizona, et al.

Defendants.

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Case No.: CV17-4540-PHX-DGC

PLAINTIFF’S MOTION IN 

LIMINE NO. 1 RE: OPINIONS OF 

DPS CRIMINALISTS

Plaintiff, through undersigned counsel, moves this Court for an order in 

limine precluding the defendant from introducing evidence or argument claiming 

that five criminalists from the Arizona Department of Public Safety (DPS) concluded 

the Plaintiff’s gun fired the evidentiary bullets collected from the four Freeway 

shootings. The arguments or testimony is misleading, non-disclosed expert 

testimony, mostly irrelevant, and cumulative.

In deposition, DPS Criminalist John Maciulla testified that “[f]ive different 

examiners from DPS have looked at some if not all of the evidence,” namely “Chris 

Kalkowski, Lisa Peloza, Cade Shaw, Aaron Brudenell, and myself.” Exhibit 1, 

Deposition of John Maciulla at 118:2-8. The statement is misleading and irrelevant. 

The five DPS examiners did not perform scientific analysis or reach a scientific 

result. Nor did five DPS examiners provide any ballistic opinions before Merritt's 

arrest to inform the probable cause analysis.

Case 2:17-cv-04540-DGC Document 290 Filed 01/10/20 Page 1 of 4
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For this Motion, Plaintiff does not dispute that Christopher Kalkowski 

compared bullets recovered from the shootings to those test-fired from Merritt’s 

gun and reported that Merritt's gun fired the evidentiary bullets. Nor does Plaintiff 

dispute in this Motion that Cade Shaw, another DPS criminalist, viewed the bullets 

on Kalkowski’s microscope after Kalkowski had completed his work and "verified" 

the same conclusion. But any ballistic opinion from or about Aaron Brudenell, John 

Maciulla, and Lisa Peloza should be rejected.

The defendant produced no expert disclosure under Rule 26, Federal Rules of 

Civil Procedure, and the Court’s Scheduling Order (Doc. 45) about the opinions of 

Aaron Brudenell, John Maciulla, or Lisa Peloza. These criminalists reached their 

views about the ballistic evidence after Merritt's arrest and cannot relate to the 

probable cause determination before Merritt's arrest. Even if appropriate and 

disclosed, their opinions would be cumulative.

The defendant has produced no writing that Mr. Brudenell purports to 

identify Merritt’s gun as the firearm used in the shootings. Id. at 118:21-24. Mr. 

Maciulla did a spot check of the evidentiary bullets at the Phoenix Crime Lab and 

produced no written report to document his work. Id. at 103:23-25; 105:20-22. 

Maciulla conceded that the defendant asked him only to conduct a quality inquiry 

and that he “was not asked to do an analysis and produce a report.” Id. at 106:5-9.

Finally, the defendant has disclosed no report from Lisa Peloza comparing any 9mm 

bullets test-fired from Merritt’s gun to the evidentiary bullets.

The plaintiff asks the Court to enter the following order:

1. The defendant is precluded from presenting evidence or argument that 

Cade Shaw conducted an independent ballistic analysis and comparison of 

bullets test-fired from the plaintiff’s gun and that he compared them to the 

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evidentiary bullets. The defendant may present evidence that Shaw's role was 

to verify Kalkowski’s work.

2. The defendant is precluded from presenting evidence or argument that John 

Maciulla, Aaron Brudenell, or Lisa Peloza conducted an independent ballistic 

analysis and comparison of bullets test-fired from the plaintiff’s gun and that 

they compared them to the evidentiary bullets, and any opinions or 

conclusions based thereon.

DATED THIS 10th day of January 2020.

/s/ Jason D. Lamm

Jason D. Lamm

Attorney for Plaintiff Leslie Merritt, Jr.

CERTIFICATE OF SERVICE

I certify that on this 10th day of January 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 St.

Phoenix, AZ 85003

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

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By: /s/ Kathryn A. Miller

Kathryn A. Miller

Case 2:17-cv-04540-DGC Document 290 Filed 01/10/20 Page 4 of 4