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Jason D. Lamm (018454)

Law Office of Jason Lamm

6245 North 24th Pkwy, Ste. 208

Phoenix, AZ 85016-2030

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys 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

MOTION FOR JUDGMENT 

NOTWITHSTANDING THE 

VERDICT AND NEW TRIAL

(Oral Argument Requested)

Under Rules 50 and 59 of the Federal Rules of Civil Procedures, Plaintiff 

Leslie Merritt, Jr. moves this Court to vacate the Judgment (Doc 478) filed on 

November 17, 2020, and grant him a judgment of liability notwithstanding the 

verdict and a new trial. These motions are supported by the attached Memorandum 

of Points and Authorities.
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Memorandum of Points and Authorities

1. The motion’s procedural foundations

Leslie A. Merritt, Jr. moves the Court to vacate the Judgment (Doc. 478) and 

to grant a new trial because:

• The verdict was against the weight of ballistic evidence and is contrary to 

Arizona law on probable cause. Fed. R. Civ. P.50(a)(1) and 59(a)(1)(A),

• The verdict was inconsistent with the evidence and controlling Arizona law 

on probable cause. Fed.R.Civ.P. 50(a)(1).

• The verdict was against the weight of the evidence and is contrary to Arizona 

law on dissipating probable cause. Fed. R. Civ. P. 59(a)(1)(A),

• The verdict was based on unduly prejudicial character evidence and contrary 

to the weight of the evidence. Fed.R.Civ.P. 59(a)

2. The State failed to produce a reliable scientific ballistic 

identification to establish probable cause.

The trial testimony showed the State had grossly overstated the certainty of 

its purported ballistic identification and, instead, that it presented ballistic evidence 

inconsistent with the accepted scientific consensus. The science of ballistic 

identification purports that a well-trained, experienced examiner using the accepted 

methodology can reach a ballistic conclusion to a level of a “practical 

certainty.” Exhibit 1, Trial Testimony (TT) of John Maciulla at 1346:8-10. Using 

the industry-standard theory of identification adopted by the Association of 

Firearms and Toolmark Examiners (AFTE), the odds of two well-trained 
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experienced examiners coming to different conclusions is a “practical 

impossibility.” Id. at 1355:18-21.

“In firearms analysis, examiners attempt to determine whether ammunition 

is or is not associated with a specific firearm based on toolmarks produced by guns 

on the ammunition.”1 [emphasis added]. “It has been consistently demonstrated 

that when the AFTE Theory of Identification is properly applied, examiners are able 

to conduct quality, accurate analysis.”2 Implicit within the notion that an 

examiner’s conclusion of ammunition being produced from a “specific” firearm is 

the foundational underpinning that any conclusion reached must not be subject to 

multiple interpretations in order to be both valid and “accurate.” Id.

The industry-standard, reflected in the AFTE Range of Conclusions, permits 

four categories of accepted findings: identification, elimination, inconclusive, and 

unsuitable for examination. Exhibit 2, Declaration of Haag at ¶ 4. These 

conclusions are mutually exclusive to one another. Id. at ¶ 5.

The State’s claim of probable cause to arrest the Plaintiff rested on a 

purported scientific ballistic identification of the Plaintiff’s firearm to bullets found 

at the crime scenes, and that they were made to a level of practical certainty. In 

communicating his results to Sergeant Trevor Graff hours before the Plaintiff's

arrest, Kalkowski told him he had identified Plaintiff’s gun as being “a 100% match” 

1

https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAS

T/pcast_forensic_science_report_final.pdf at p. 104 (emphasis supplied) (last 

visited December 15, 2020).

2 https://afte.org/uploads/documents/AFTE-PCAST-Response.pdf at p.2.
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to the weapon that fired all four of the evidentiary bullets. Exhibit 3, Graff TT 

at 87:9-88:5. Kalkowski’s claim of a “100% match” caused the Defendant to claim 

probable cause to arrest “as but for Mr. Kalkowki’s opinion of an alleged match, 

there would be no other evidence based on which to arrest Mr. 

Merritt[.]” Id. at 120:23-121:1

During discovery, the Defendant’s ballistic expert, John Maciulla, confirmed 

that the four possible conclusions regarding ballistic identification are “mutually 

exclusive” to one another. Exhibit 4, Maciulla Depo. Vol 1 at 45:12-21. Plaintiff’s 

expert, Lucien Haag, likewise testified that “the mutual exclusivity of the range of 

conclusions has been in existence” even before the AFTE formally implemented 

them in 1992. Exhibit 5, Haag TT at 205:17-22.

Assuming the ballistic identification was made to a level of practical certainty, 

the Court ruled that the purpose of the trial was for the jury to “resolve[] the serious 

issue raised by the timing of the gun’s pawn and the tire’s rapid loss of air.” Doc. 278 

at 9:20-21 (citing Docs. 264 at 6-8, 273 at 2-3)).

However, at trial, the State’s ballistic testimony reflected a position that did 

not adhere to the accepted scientific consensus. Both Kalkowski and John Maciulla 

testified that the categories of the AFTE Range of Conclusions are not mutually 

exclusive. Maciulla testified that it is both “reasonable” and reliable science for two 

different examiners to come to two distinctly different conclusions when examining 

the same evidence. Exhibit 1, at 1352:10-18.
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As a result, the State’s ballistic evidence contradicts the accepted scientific 

consensus and permits no level of certainty. If two well-trained, competent 

examiners can reasonably reach different conclusions, as the State contends, a 

ballistic identification cannot be made to a level of a “practical certainty.” Instead, 

the State’s position “greatly undermines[s] the scientific reliability and integrity of 

any conclusions reached under this notion.” Exhibit 2, at ¶ 8.

This testimony represented the first time in Maciulla’s career that he had ever 

claimed that “another reasonable examiner could find inconclusive when [he] ha[s] 

claimed an identification” and that the AFTE Ranges of Conclusion are not mutually 

exclusive to one another. Exhibit 1, at 1346:11-15.3

The State’s evidence that a ballistic identification is one of several correct 

possibilities eliminates the conclusion's scientific reliability. Based on discovery 

conducted, at the time of summary judgment, “[b]oth parties asserted that ballistics 

evidence is highly reliable with a very low error rate.” Doc. 278 at 7, fn2. In ruling 

on Defendant’s Motion for Summary Judgment, the Court commented that 

3 Maciulla and other DPS firearms examiners routinely testify in criminal trials 

about identification of firearms on behalf of the prosecution. Maciulla’s testimony 

in this case, though, shows that identifications made by DPS firearms examiners 

may also reasonably be interpreted as inconclusive, thus establishing reasonable 

doubt. But in these same criminal cases, DPS examiners testify that their results are 

highly accurate. See Doc. 327. It is fair to question if DPS will now go back to 

prosecutors and advise them of their change in position so that criminal defendants 

affected by this new-found theory can pursue post-conviction relief.
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“credible scientists have raised serious questions about the reliability of ballistics 

evidence. ...” Id..

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At trial, Defendant’s counsel knew that the State’s ballistic evidence was 

contrary to scientific consensus and could not be offered to a degree of practical 

certainty, such that it should never have been presented under Rule 702. If the 

Defendant disclosed this information, the Court might well have precluded 

Maciulla’s opinions, particularly as the Court had commented on the reliability of 

ballistics evidence. Doc. 278 at 7, fn 2.5

Scientific evidence must be reliable to be admissible. Under Rule 702, an 

expert may offer “scientific, technical, or other specialized knowledge” if it “will 

assist the trier of fact to understand the evidence,” provided the testimony rests on 

“sufficient facts or data” and “reliable principles and methods,” and “the witness has 

reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 

702(a)-(d).

Absent evidence of reliable ballistic identification, admissible under Rule 702, 

the only reliable evidence of a ballistic conclusion was Plaintiff's evidence from 

4 Defendant sought to preclude any mention of the very study upon which the Court 

was referring to, in an anticipatory effort to hamper Plaintiff from arguing about the 

uncertainty of ballistic identifications and shield their unreliable opinions from Rule 

702 scrutiny; yet this is what Defendant did at trial.

5 The Court found disputed material facts on probable cause because “[b]oth parties 

assert that ballistics evidence is highly reliable with a very low error rate.” (Doc. 278 

at 7, fn 2). Defendant never disclosed the degree of unreliability of its ballistic 

conclusion. Plaintiff would have taken a different position and the Court would have 

then been required to determine the (un)reliability of ballistics evidence to rule on 

the motion. 
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Lucien Haag of an inconclusive result. Given the centrality of the ballistic evidence 

to the argument for probable cause, the Court should find that the State cannot 

establish probable cause as a matter of law. Without a material factual dispute, the 

Court should now enter judgment notwithstanding the verdict on liability under 

Rule 50 and grant a new trial under Rule 59.

3. The verdict is inconsistent with Arizona law, which has 

determined the absence of probable cause to arrest and imprison Leslie

Merritt, Jr.

On August 13, 2020, the Maricopa County Superior Court ruled, under A.R.S. 

§ 13-4051, that the State had “wrongfully arrested, indicted or otherwise charged” 

Leslie Merritt, Jr. in the I-10 Freeway Shootings. See Doc 401-2. The state court 

judgment is final under Arizona Rules of Civil Procedure 54(c). The state court has 

also rejected the Defendant’s arguments in its motion to intervene. No matters are 

pending before the state court and no appeal was filed.

The state court’s finding of Merritt’s factual innocence was necessary for the 

ruling under A.R.S. § 13–4051. The term "wrongfully" encompasses not only 

unlawful and illegal arrests but also arrests "characterized by unfairness or 

injustice." See State v. Mohajerin, 226 Ariz. 103, 107–08, 244 P.3d 107, 111–13 

(Ariz. Ct. App. 2010). To determine whether an arrest is "wrongful," the trial court 

must consider not only whether probable cause existed during the arrest but also 

whether the petitioner was factually innocent of the crimes for which he was 

arrested. Id. at 109, ¶ 19. See also Benderra v. State, 2018 WL 1321500, at *2 (Ariz. 

Ct. App. Mar. 15, 2018).
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The Superior Court judgment does not indicate whether the Court granted a 

Notation of Clearance based on the wrongfulness of the State's arrest, charges, or 

both. However, the imprecision is immaterial because the State's position in the 

federal case is that the evidence supporting the claim of probable cause to arrest is 

the same as the evidence at the time of charging. (See Joint Pretrial Statement, Doc 

334 at 9, Issue 2. ("The evidence known to the arresting officers at the time of 

Merritt’s arrest was not materially different than (sic) the evidence presented to the 

Grand Jury."). Regardless, the component of the Court's ruling is a finding of the 

petitioner's innocence. Under settled Arizona law, the State had no probable cause 

to arrest or imprison Leslie Merritt for the I-10 Freeway Shootings. The verdict, 

therefore, contradicted Arizona law. The Court should enter judgment on liability, 

under Rule 50, and grant a new trial, under Rule 59.

4. The evidence shows the State did not seek to release Merritt from 

custody after probable cause dissipated.

Even if probable cause existed to arrest the Plaintiff, the evidence 

unequivocally demonstrated that probable cause dissipated before the state court 

Grand Jury indictment on September 22, 2015.

Before arresting Plaintiff on September 18, 2015, Defendant failed to 

“resolve[] the serious issue raised by the timing of the gun’s pawn and the tire’s rapid 

loss of air.” Doc. 278 at 9:20-21 (citing Docs. 264 at 6-8, 273 at 2-3). Specifically, 

the Plaintiff’s gun was pawned on Sunday, August 30, 2015, at 5:31 p.m. (Trial 

Exhibit 3), and the BMW’s left front tire rapidly lost air at about 9:45 p.m. that same 
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night. “[I]f Plaintiff’s gun could not have fired the BMW bullet, then it could not 

have fired the other three bullets if one accepts Kalkowski’s conclusion—as 

Defendants did—that a single gun fired all four bullets.” Doc. 278 at 13:1-3 (citing 

Doc. 265 ¶¶ 27, 34; Doc. 270 at 10-11).

Trial Exhibit 1, a map generated by the Scottsdale Police Department on 

September 22, 2015, was received and adopted by the Defendant before the Grand 

Jury indicted Plaintiff on September 24, 2015, and reflects that the BMW shooting 

occurred on Sunday, August 30, 2015, at 9:45 p.m. It also placed the Plaintiff in 

Glendale when the Escalade and Bus shootings occurred at 11:03 a.m. and 11:05 

a.m., respectively. DPS analyst Tracy Foster confirmed that Exhibit 1 represented 

these facts. Exhibit 6, Foster TT at 1080:21-1081:1.

Trial Exhibit 13, an FBI-generated mapping of the Plaintiff’s phone’s 

historical cell-site (GPS) data at the time of the shootings, dated September 22, 

2015, was received by Defendant on September 22nd, 23rd, or 24th, 2015–before 

the Grand Jury indictment on September 24, 2015. Id. at 1088:8-21; 1089:16-

19. Trial Exhibit 13 clarified to Defendant, before Plaintiff’s arrest, that he was in 

Glendale at the time of the first two shootings.

DPS knew of the factual impossibility of Merritt's presence at a crime scene 

and his gun's use in any crime. Captain Mapp reviewed Exhibit 13 and testified that 

“a DPS employee ... or another law enforcement official working with DPS knew 

before Mr. Merritt was arrested based on historical cell site date (sic) that was 

received before Mr. Merritt’s arrest that at 11:04 a.m. on Saturday morning, 
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August 29th, Mr. Merritt’s phone, the 480 number we just saw on the pawn slip 

(Trial Exhibit 5) pinged back to a cell tower right next to his home in 

Glendale.” Exhibit 7 Mapp TT at 323:3-23 (emphasis supplied).

The jury was instructed that:

If facts discovered during an investigation cause the totality of the facts 

to fall below the level required for probable cause, then officers have a 

duty to conduct further inquiry and reestablish probable cause before 

arresting a person. A person may not be arrested, or must be released 

from detention, if previously established probable cause has dissipated 

and the officers have not reestablished probable cause.

Doc. 461 at 14.

 The Defendant presented no evidence of its having conducted any further 

inquiry, re-establishing probable cause, or even attempting to have the Plaintiff 

released from detention after receiving Exhibits 1 and 13 on September 22, 

2015. The undisputed record shows that Defendant failed to provide evidence to 

establish probable cause to continue the Plaintiff's imprisonment between 

September 22nd and September 24th, 2015. The Court should, therefore, set aside 

the jury’s verdict for the Defendant and enter judgment in favor of the Plaintiff on 

the claim of false imprisonment.

5. A new trial is warranted because of errors in the presentation and 

admission of undisclosed profile evidence.

Rule 59 authorizes a trial judge to grant a new trial if the verdict is based upon 

false evidence or to prevent a miscarriage of justice. Passantino v. Johnson & 

Johnson Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir. 2000).
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At trial, for the first time, the Defendant floated several new theories 

supporting its contention of probable cause. The State offered testimony from 

criminal analyst Tracy Foster to show that Merritt fit the Freeway Shooter's alleged 

criminal profile. A new trial is warranted based on three significant errors in the 

presentation and admission of Foster’s testimony.

First, Defendant violated disclosure rules, the Court’s MIDP Order (Doc. 3), 

and pre-trial trial agreements in presenting Foster’s testimony about indicators. 

Before taking the stand, the Court ordered that the State was precluded from 

asserting that Leslie Merritt fit any non-disclosed “profile” of the Freeway Shooter

– something which would have required expert testimony. Omitted from the 

Defendant’s disclosure was any discussion of a “profile” of the Freeway Shooter or 

an expert to provide “profile” evidence.

Defendant’s counsel, however, did an end-run around the Court’s ruling and 

expanded on its disclosure by eliciting opinions from Foster that Merritt fit many 

so-called “indicators'' of the Freeway Shooter that were “red flags basically 

everywhere.” Exhibit 6, at 1025:20-22; 1029:13-14. Although all the testimony 

about “indicators” was non-disclosed expert evidence, Defendant marched Foster 

through various records of the Plaintiff, giving the imprimatur of expertise to 

explain these records and other events irrelevant to the element(s) of any crime(s). 

Defense counsel elicited from Foster how the Plaintiff fit the “indicators” (profile) 

based on his previous police contacts and his Facebook posts showing alleged antigovernment, anti-law enforcement, and pro-gun sentiments. Exhibit 6, at 1073:14-
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17, 1074:11-19, 1027:1-3. She further testified that the Plaintiff was the only 

individual who “had what we were looking for as far as indicators and past law 

enforcement contacts and social media posts.” Id. at 1029:5-7, 1059:17-21.

Notably absent from the State’s discovery responses about the factual basis of 

its affirmative defense is any discussion about Merritt's so-called “antigovernment,” “anti-law enforcement” or “pro-gun” views, police contacts, and 

alleged anger issues, which featured so prominently at trial, as well as no discussion 

of “indicators” or comparisons to other gun owners. Exhibit 8, Defendant’s 

Response to Non-Uniform Interrogatory #5. The injection of these new issues 

substantially and unduly prejudiced the Plaintiff with inadmissible character 

evidence by unfairly limiting his ability to cross-examine Foster.

Second, the Defendant presented testimony immaterial to any permissible 

jury issue because it assumed a reality that did not exist. None of the so-called 

“indicators” suggested by Foster related to an element of any crime. Exhibit 6, at

1076:1-9. Foster, herself, conceded that her testimony amounted to only “mere 

suspicion.” Id. at 1076:21-22.

What was lost in Foster’s testimony was any distinction between information 

that could form investigative leads and facts establishing probable cause to 

arrest. Defense counsel knew Foster had no information about any facts related to 

probable cause but had her testify to a precluded profile, thinly veiled under the 

guise of “indicators.” Foster’s testimony about “indicators” should have been 
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precluded because it was immaterial to any legitimate jury issue under Rules 401 

and 403 and, also, inadmissible as expert opinion under Rule 702(A). 

Under the Court’s ruling, Foster should have been permitted only to provide 

facts known to DPS related to Facebook posting involving the Freeway 

Shootings. Defendant should never have been permitted to encourage the jury to 

infer that Merritt was the Freeway Shooter based on undisclosed expert testimony 

and character evidence.

Plaintiff does not dispute that trials are adversarial. But for the judicial system 

to work, litigants must be able to inherently trust that adversaries, particularly 

experienced trial lawyers, will act within the bounds of professionalism and good 

faith.

Given the prominence devoted to Foster's testimony, the jury reasonably 

presumed that the evidence represented crucial information. Foster's testimony

encouraged the jury to place undue prominence on items irrelevant to the ostensible 

opinion about probable cause. The highly prejudicial effect was highlighted by 

Plaintiff’s inability to present evidence of the real Freeway Shooter, Aaron Saucedo, 

or to corroborate Plaintiff’s credibility with proof that he had made the phone call

at 11:04 a.m., on August 29, 2015, to his grandfather in Florida.

Third, the unduly prejudicial effect of Foster’s testimony was never 

adequately alleviated. While the Court’s limiting instruction could minimize 

Foster’s testimony's prejudicial nature, it could not eliminate its unduly prejudicial 

effect in the trial. (Doc 461 at No. 8). The result was a jury verdict that came back 
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within a few minutes without time for the jury to review the exhibits. Leslie Merritt

is entitled to a new trial.

Conclusion

For these reasons, the Court should vacate the Judgment (Doc 478) filed on 

November 17, 2020, and grant a judgment of liability in favor of the Plaintiff,

notwithstanding the jury’s verdict, and order a new trial.

DATED THIS 16TH day of December, 2020.

LAW OFFICE OF JASON LAMM

By: /s/ Jason D. Lamm

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/ David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.
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CERTIFICATE OF SERVICE

I certify that on this 16th day of December, 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.

Andrew Fox, 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

By: /s/ Kathryn A. Miller

Kathryn A. Miller