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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 

RENEWED MOTION FOR AN ORDER 

RESTRICTING PLAINTIFF’S COUNSEL 

OR HIS AGENTS FROM PROVIDING 

FURTHER EXTRA-JUDICIAL 

COMMENTS TO THE NEWS MEDIA 
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 Plaintiff counsel’s efforts to taint the jury pool have continued with renewed force. 

His efforts are focused on the only two remaining issues in this case: (1) the lawfulness of 

Merritt’s arrest; and (2) Merritt’s alleged damages. Through the media, Merritt’s counsel has 

said to a future jury that “there was no evidence from day one” for the arrest, that “[w]hile a 

court may clear you, the internet doesn’t,” and that “[t]he 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.” Merritt’s counsel continues to inform future jurors that Merritt 

suffers from “nightmares” and “paranoia” because of his arrest. The State has no fair 

opportunity to rebut these allegations, posing as facts in the minds of jurors, and now faces 

the very real prospect of a biased jury with preconceived notions of this case. It will be no 

surprise during voir dire to hear a prospective juror say she thought Merritt was wrongfully 

arrested, and has suffered damages, as reported in the news. 

Accordingly, the State renews its motion seeking an Order to restrict extra-judicial 

comments by Plaintiff’s counsel and his agents. Mr. Lamm’s actions in particular show a 

disrespect for this Court and its rules. 

I. Background 

 On January 17, 2020, Merritt filed a Petition for Notation of Clearance (“Petition”) in 

Maricopa County Superior Court. The Petition was filed in the state court criminal case 

against Merritt which had been dismissed without prejudice in 2016. The Maricopa County 

Attorney’s Office responded to the Petition. The State defendants here were not parties to 

that action. 

 Merritt’s Petition, which was filed after this Court ruled on the State’s motion for 

summary judgment, erroneously made claims contrary to this Court’s ruling. [Doc. 316 at 4-

5 (Table)]. Plaintiff’s counsel does not dispute this. [Doc. 320 at 1-2 (“Plaintiff’s response 

does not dispute that its Petition . . . is filed with factual allegations contrary to this Court’s 

Summary Judgment Order.”)]. An advanced copy of Merritt’s Petition was provided to the 

media by Plaintiff or his agents. [Docs. 316 at 4; 320 at 1-2]. 
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 On January 30, 2020, the Associated Press issued a story about Merritt’s Petition, 

which included information about the private settlement between Merritt and Maricopa 

County in this case. (Doc. 316-1 at 33-35.) Plaintiff’s counsel or his agent was the source of 

this information. (Doc. 320 at 3 (“Plaintiff’s response makes no effort to dispel concerns that 

Plaintiff’s counsel or his agent was the source of the Maricopa County Attorney’s Office 

(“MCAO”) settlement information.”). 

 On August 13, 2020, the state court issued a ruling granting Merritt’s Petition. 

Plaintiff’s father and Plaintiff’s counsel immediately engaged the media. As a result a number 

of news stories were released. Plaintiff’s counsel, Mr. Lamm, includes some of these stories 

on his law firm website. [See Screenshot of Plaintiff’s Counsel’s Website, attached as Exhibit 

A.] One week later, on August 21, 2020, this Court issued its order denying the State’s 

motion related to extra judicial comments, but admonished the parties of their duty to refrain 

from attempting to gain leverage in this case by speaking to and through the media. [Doc. 

382 at 14-15]. The Court’s admonition was too late. 

II. Argument1 

 In mid-August, the state court granted Merritt’s Petition. Despite the fact that the State 

already raised concerns about Plaintiff’s counsel efforts to taint the jury pool and the fact that 

Merritt’s Petition erroneously made claims contrary to this Court’s summary judgment ruling, 

Plaintiff’s counsel continued his media campaign, offering comments on matters beyond 

those at issue in his Petition and directly relevant to the issues in this case. 

A Petition for Notation of Clearance gives no consideration to any potential injury 

suffered by a petitioner. See A.R.S. § 13-40519(C); see also State v. Mohajerin, 226 Ariz. 

103, 108 ¶ 16, 244 P.3d at 112 (Ariz. App. 2010) (“the statute does not allow a petitioner to 

seek damages for any past conduct by law enforcement that was unlawful or illegal. Rather, 

it authorizes damages only if officials fail to comply with a clearance order issued by the 

 

1

 This motion incorporates the legal argument set out in its initial motion restricting extrajudicial comments. [See Doc. 316]. 
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court.”). Nevertheless, Plaintiff’s counsel offered several inflammatory sound-bites about 

alleged harm suffered by Merritt, including: “While a court may clear you, the internet 

doesn’t” and “[t]he 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.” See [AZFamily, 

Court order clears Leslie Merritt Jr in 2015 Arizona freeway shootings, attached as Exhibit 

B]. 

Egregiously, during a 5-minute video interview, Plaintiff’s counsel cites the existence 

of this Case and the State’s then-pending motion to restrict extra-judicial comments, but then 

offers further comment on Plaintiff’s alleged injuries.2 Plaintiff’s counsel, much like a 

witness at trial, testified to the reporter that Merritt still suffers from “nightmares” and 

“paranoia” because of his arrest. These alleged harms are relevant only to this case, not the 

state court Petition. 

 Moreover, as pointed out by the State in its initial motion to restrict extra-judicial 

comment, a petition for clearance offers a remedy to “petitioners . . . seeking relief for 

wrongful arrests or charges that were lawful when they occurred.” [Doc. 316 at 5-6 (citing 

Mohajerin, 226 Ariz. at 107-08 ¶ 14, 244 P.3d at 111-12)]. The lawfulness of Merritt’s arrest 

at the time it occurred is the seminal issue in this case. Given that the issue is central to this 

case, and not the focus of Merritt’s Petition, Plaintiff’s counsel’s statement that “there was 

no evidence from day one” can only be offered to prejudice the jury in this case. [Ex. B]. 

 Plaintiff’s counsel’s statements to the media present a “substantial likelihood of 

materially prejudicing an adjudicative proceeding.” U.S. v. Sutton, No. CR 05-826, 2007 WL 

2572348, at *2 (D. Ariz. Sept. 4, 2007) (citing Gentile v. State Bar, 501 U.S. 1030 (1991)). 

So too, do they run afoul of LRCiv. 83.8(a) and Rule 3.6(a) of the Arizona Rules of 

Professional Conduct. 

 

2

 The interview is available at: https://www.azfamily.com/video/leslie-merritt-jr-s-lawyerhe-lives-with-this-still-every-day-of-his-life/video_ac7239c1-b236-52d5-9d84-

3f140e9378e4.html. 
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Further tainting a potential jury and prejudicing the impending trial, “Merritt’s father 

took to social media to celebrate, sharing the court papers that exonerate his son.” [Ex. B; 

see also 12 News, One-time Freeway Shooter suspect formally cleared by court, attached as 

Exhibit C (“The order was posted on Facebook by Merritt’s father, Leslie Merritt Sr.”]. The 

state court’s order, which was originally attached to the news story (since removed), sealed 

the order itself, as well as all pleadings and information to the investigation, arrest, and 

prosecution of Merritt. Despite the clear ban against publicly sharing the order, Plaintiff’s 

father posted it on his social media. 

III. Conclusion 

 Accordingly, the State requests an Order prohibiting Plaintiff’s counsel or his agents 

from making any further extra-judicial comments to the news media about this case or the 

state court proceedings. The State requests permission to issue a subpoena for the depositions 

of Merritt’s father and Jason Lamm to determine what actions each took to cause the news 

coverage of the Petition and the order granting the Petition. Information gained in the 

depositions may inform the Court’s decision making related to sanctions. Defendant also 

requests that the Court to instruct Plaintiff that any further comments by Plaintiff, his counsel, 

or agents will result in the loss of a jury trial. See Thompson v. Hous. Auth. of L.A., 782 F.2d 

829, 831 (9th Cir.1986) (inherent power includes power to “impose sanctions including, 

where appropriate, default or dismissal”). 

RESPECTFULLY SUBMITTED this 4th day of September, 2020.

POLSINELLI PC 

By: /s/ Edward F. Novak 

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 
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 4th day of September, 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 North Seventh Street 

Phoenix, Arizona 85006-1062 

jlamm@cyberlawaz.com

David J. Don 

Law Office of David J. Don, PLLC 

301 E. Bethany Home Road, Suite B-100 

Phoenix, AZ 85012 

david@azcivilrights.com

 By: /s/ Erika Cano