UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 _________________

Leslie A. Merritt, Jr., )

 )

 Plaintiff, ) CV 17-04540-PHX-DGC

 )

 vs. ) Phoenix, Arizona

 ) October 9, 2020

State of Arizona, et al., ) 1:04 p.m.

 ) 

 Defendants. )

_____________________________________)

BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

FINAL PRETRIAL CONFERENCE

Official Court Reporter:

Patricia Lyons, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Ste. 312

401 West Washington Street, SPC 41

Phoenix, Arizona 85003-2150

(602) 322-7257

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared with Computer-Aided Transcription

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Case 2:17-cv-04540-DGC Document 449 Filed 10/22/20 Page 1 of 87
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A P P E A R A N C E S

For the Plaintiff: 

Law Offices of David J. Don, PLLC

By: DAVID J. DON, ESQ.

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

Phoenix, AZ 85012

Law Office of Jason D. Lamm

By: JASON D. LAMM, ESQ.

2501 N. 7th St.

Phoenix, AZ 85006

For the Defendants:

Polsinelli, PC

By: EDWARD F. NOVAK, ESQ.

By: MELISSA S. HO, ESQ. 

By: JONATHAN G. BRINSON, ESQ. 

1 E. Washington St., Ste. 1200

Phoenix, AZ 85004

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Case 2:17-cv-04540-DGC Document 449 Filed 10/22/20 Page 2 of 87
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P R O C E E D I N G S

THE COURTROOM DEPUTY: This is case number CV

17-4540, Leslie A. Merritt versus State of Arizona. On for

final pretrial conference.

Counsel, please announce for the record.

MR. DON: Good afternoon, Your Honor. David Don for

the plaintiff.

MR. LAMM: Good afternoon, Your Honor. Jason Lamm

also for the plaintiff.

MR. NOVAK: Good afternoon, Your Honor, Ed Novak,

John Brinson, Melissa Ho, and Andrew Fox for the Defendant

State of Arizona.

THE COURT: All right. Good afternoon. Let me get

organized here.

All right. Counsel, what I want to do is first go

through the Final Pretrial Order. It was filed some time ago,

but we're nonetheless working with that. We'll then talk a

bit about jury selection, we'll talk about the motions that

are pending, we'll then talk about jury trial procedures in

light of the COVID pandemic, and at the end I want to have us

all walk down to the special proceedings courtroom downstairs,

which is where we'll be choosing the jury, so you can see how

it's laid out and how that's going to work.

1 3 : 0 7 : 0 9 So let's run through the Joint Proposed Final

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Pretrial Order, which is at Docket 334. You have on pages 2

and 3 six stipulations. What I typically do is read the

stipulations to the jury before Counsels' opening statements

so those are facts that are already established for the trial.

I'm happy to do that. Or if there's some other way in which

you want those stipulated facts presented, I'm happy to

consider that.

MR. DON: Your Honor, we would request they also be

included in the preliminary instructions.

THE COURT: Well, I'll be reading them 30 seconds

after I finish the preliminary instructions. Before your

opening statements. So you'll get them at essentially --

MR. DON: Then I think that addresses my issue. Yes.

THE COURT: How about from defendants?

MR. NOVAK: That's acceptable, Your Honor.

THE COURT: Okay. Let me make a note.

All right. Let's talk for a little bit about the

issues that you have identified. You couldn't agree on

issues. I do want to start with a comment. You all have been

unable to agree on the most elementary matters in this case.

I want that to change for trial. We're going to have a

cooperative trial and a transparent trial. There's no need to

be splitting hairs like we've done on a lot of issues where

the dispute is not of any consequence.

1 3 : 0 9 : 3 2 And so going forward, that's what we're going to do.

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So please make sure you've exhausted every opportunity to

agree on matters before you bring them to me.

With respect to the issues that the plaintiff

identifies, which are pages 4 through 9, it is subdivided way

too thinly. We don't have 11 issues in this case, we have two

issues in this case.

And that is whether the arrest was supported by

probable cause and, if not, what are the plaintiff's damages.

And we're going to need to obviously phrase that

probable cause issue in terms of the correct statement of the

law in Arizona. We'll do that for purposes of the jury

instructions, but we're not going to subdivide them into a lot

of smaller issues.

The same thing is true with the defendant's statement

of the issues, which begins on page 9. Of course, some of

these issues are related to defenses that I've since ruled

against, like number 2, but basically we've just got two

issues in the case, and that's the way we're going to pursue

it with the jury.

So please keep that in mind in terms of as you're

preparing arguments or you're directing cross-examination. I

really want this case to be clear to the jury that those are

the two matters that they're going to have to decide.

I do have a question on legal issues. The

1 3 : 1 1 : 0 1 plaintiff's legal issues start on page 9. They all appear to

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me to be fact issues, not legal issues. That is, whether or

not burden of proof has been met by the evidence in the case

really is the issue. So I don't see any legal issues in

plaintiff's legal issues.

In defendants' list of legal issues, issue number 1

at the top of page 12 is no longer in the case, which is the

bond issue.

Issue number 2 I've resolved, which is whether the

knowledge of the crime lab can be imputed.

Issue number 3 is whether the State can aid and abet

itself, and that's something I want to talk to you all about

for a minute.

I denied the Defendants' motion on the aiding and

abetting count, so it's still in the case. However, Count 10

of the complaint, which is an aiding and abetting count, was

originally asserted against the State, the county, and

Bill Montgomery. And in that context it probably made some

sense because you would be arguing that the county and

Mr. Montgomery aided and abetted whatever the State did. But

with Montgomery and the county out of the case, it's hard for

me to see what we have in the way of an aiding and abetting

claim.

And the reason I raise it now is that if we have it

in the case and we present it to the jury, I'm pretty sure I'm

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evidence, because there's nobody in the case to aid and abet

what the defendant has done. His liability is at stake. We

can do that. I don't think that would be unduly confusing.

But it seems to me it's unnecessary.

And I guess it's up to plaintiff's counsel as to

whether you want it included in the case given the high

probability that I'll be entering judgment and telling the

jury I've entered judgment on it at the close of the

plaintiff's case.

MR. DON: Your Honor, from the plaintiff's

perspective, the aiding and abetting issue as it exists in

this posture of the case is necessary to prevent the jurors

from reaching an incorrect assumption that the civilian

employees of the State were not liability producing agents, as

we contend.

So long as it's clear otherwise in the instructions

that the plaintiff's claim arises from the liability of all of

the DPS employees and they're in the course and scope of

employment. If that's not an issue, then the plaintiff is

okay with dismissing the aiding and abetting claim against the

State. So that's a -- it's a contingent way of making the

argument.

THE COURT: Well, let me ask you this question. I

think I understand what you're saying and I want to hear what

1 3 : 1 4 : 1 8 the defendants think, but here's the question I have, Mr. Don.

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Whom has the State aided and abetted in this case?

Because the only liability you're trying to establish at trial

is the State's. The only value of an aiding and abetting

claim, therefore, will be for the jury to find the State

liable as an aider and abettor, and there's no other -- I

guess that's what I'm struggling with. You're claiming the

State acted wrongly in its investigation and its arrest. So

whom could the State have aided and abetted?

MR. DON: The assumption behind your question is well

taken and it only makes sense so long as we have either a

stipulation that all the DPS employees are in the course and

scope of employment or that the civilian DPS employees can be

liability producing agents. Because those individuals aided

and abetted the State, through the State, the sworn officers.

THE COURT: Well, I have not yet spent any time on

the final jury instructions. I will be doing that. But it is

typical in a civil case where there's a corporation or an

entity as a defendant to instruct the jury that the entity is

liable for the actions of its employees within the scope and

course of their employment.

Now, you have to prove it's within the scope and

course. Unless the State wants to stipulate to that.

So I think there will be a clear instruction to the

jury that the State is liable if its employees acted in a way

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But that, to me, is not an aiding and abetting issue.

It's the liability of the State you're trying to establish at

trial, not the liability of an employee who aided and abetted

it.

So I'm just having trouble seeing why -- assuming the

instructions are clear, that the State's responsible for the

actions of its employees, what is added by an aiding and

abetting claim, and why wouldn't it be eliminated right at the

close of your case.

MR. DON: I don't see a value provided that we a

respondeat superior type argument or instruction.

THE COURT: All right. Thoughts from the defense

counsel?

MR. NOVAK: I agree with the Court's statements. If

there is an instruction at the conclusion of the case, if the

Court thinks it's appropriate with respect to the conduct of

the employees of the State having been in the course and scope

and having been proven in the course and scope, that's

acceptable. And I'll suggest to you, Judge, that there hasn't

been any evidence so far one way or the other in this case.

So we're -- I mean, I'm not surprised by this issue because we

raised it, but, like you, Your Honor, I don't know how the

State can aid and abet itself. I think it's self-explanatory.

But the confusion that I think -- that I'm concerned

1 3 : 1 7 : 4 1 about is that the caption of this case reads The State of

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Arizona and all of the individual defendants. I understand

that they have been dismissed out. But the judgment that the

Court will enter if we are successful following a jury verdict

will ultimately push them out completely.

So if they hear the caption, including all those

individuals, and they hear an aiding and abetting count, I'm

just concerned that they may be confused about whether they

are to assume that employee A aided and abetted employee B, as

opposed to the State aiding and abetting itself.

And maybe that doesn't make any sense, Judge, but it

is confusing to me.

THE COURT: All right. Well, we'll make this clear

in the jury instructions that the State is liable for actions

of its employees within their scope and course. It will be up

to plaintiff, obviously, to prove that, which you'll do during

the evidence. I don't think you'll have trouble with the

scope and course issue.

And then I'm not going to instruct the jury on the

aiding and abetting claim because I think we would just pull

it away from them again and there's not a lot of point in

doing that.

Are you all right with that, Mr. Don?

MR. DON: We'll agree to that, yes.

THE COURT: Okay.

1 3 : 1 9 : 0 4 The issue number 4 on page 14, which is whether

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there's really a difference between false arrest and false

imprisonment, I'm going to look at those cases. We'll deal

with that during the finalization of jury instructions.

Issue 5 has been resolved by my rulings. So that's

not in the case.

That takes care of the issues that are going to be

addressed. So I don't think there's any outstanding legal

issues other than what we settle in jury instructions.

And the factual issues that we've identified are

whether there was probable cause to arrest and whether there

were damages.

Any thoughts or disagreements or issues on those

points?

MR. NOVAK: No, Your Honor.

MR. DON: The one issue that I feel we would benefit

from clarity on is the scope of damages. And in the motion in

the Court's order regarding summary judgment the Court used

language indicating that the plaintiff is limited to seeking

damages that accrued between the dates of the arrest and the

dates of the indictment.

In subsequent orders from the Court, there wasn't --

there was slightly different language regarding the scope of

permissible damages. And that's an important issue as far as

we're concerned.

1 3 : 2 0 : 4 5 We believe that the accrual of damages is different

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from the duration of damages, the nature and quality and

duration of damages is a separate issue. And we need some

clarity on what the Court's instruction is going to be as far

as that goes.

So, in other words, our reading of the ruling and the

law is that the claims that accrued between September 18th and

September 24th are the dates when the claims came into

existence, and the damages that accrued on that day are

permitted to be recovered for. And that's a separate issue

from the duration of those injuries, which the evidence will

show has extended well beyond that six-day period.

THE COURT: Well, I think I understand what you're

asking. Let me share my thoughts, and defense counsel can

tell us if they disagree.

My view is that we ought to -- well, that the damages

ought to be the same as if Mr. Merritt had been arrested on

September 18th and released on September 24th. So, you know,

if there were six days of lost wages, he gets those. But if

there was mental trauma or emotional trauma that plagued him

after that as a result of those six days, he gets to recover

those as well.

What the jury has to be satisfied of is that those

damages were caused during that six-day period.

So I think that's your point, Mr. Don, is that if

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because of what happened during those six days, he can recover

it, but you've got to prove it resulted from those six days,

because that's the period of damages. We can make that clear

in instructions.

So I think that responds to your issue, doesn't it?

MR. DON: Yes, Your Honor.

THE COURT: Do defense counsel see it any

differently?

MR. NOVAK: I don't see it differently, Your Honor,

but I think that -- let me just offer an example.

It's clear to us that one of the facts that plaintiff

would like to bring out is that he was surveilled after he was

released from jail and that his surveillance, according to

Dr. Hayes in her report, is a part of his continuing anguish.

That happened after he was released from jail, it

happened after September 24th. I don't think that that should

be included in the damages.

In other words, let me articulate that just a bit

clearer.

So anything which occurred after September 24th which

causes him to have exacerbated his mental trauma should not be

exposed to the jury.

THE COURT: Any thoughts on that, Mr. Don?

MR. DON: I would disagree with that. I mean, if the

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actions merely were instances that exacerbated the initial

arrest and injured his healing.

THE COURT: Well, let me ask you this question,

Mr. Don: Let's assume hypothetically that in June 2016, after

his release, he was followed by law enforcement during the day

and that brought back all of his anxiousness and anxiety.

What happened on that day in June of 2016 was not a

false arrest and not a false imprisonment. It was not caused

by the false arrest or false imprisonment that occurred

September 18th of 2015. And so it seems to me that any

additional damage that was inflicted at that later date is not

caused by the harm for which you are suing in this case and

that you have to tie any damages that are going to be

recovered to the harm from the arrest and the following

six-day period he was incarcerated.

What's wrong with that thinking?

MR. DON: I think what's wrong with that thinking,

Your Honor, is that from the initial arrest, the evidence will

be that Mr. Merritt suffered post-traumatic stress disorder

and that as a result of that ongoing condition there are

certain events, whether lawful or unlawful, that trigger his

initial trauma, and that's the condition.

So if there is surveillance, if there is -- and there

will be testimony, I expect, that, you know, when there are --

1 3 : 2 5 : 4 6 when Mr. Merritt sees the police or has certain events that,

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because of his condition, trigger his initial trauma, that's

just an aspect of his damages.

So I agree to the extent we're not going to argue

that surveillance, for instance, was unlawful or a new injury.

It's merely an event that he experienced that exacerbates the

ongoing injury. It's not a new accrual date, it's just

continued damages.

THE COURT: Well, let me ask you this question: So

in theory, with that approach, you could present to the jury

all 152 times he's seen a police car since he was released and

say each of those incidents exacerbated his injury and

therefore should increase his damages; right?

MR. DON: If that's the testimony. I mean, I think

the argument would be that he's suffered an emotional trauma

and as a result of that there's certain events that cause him

suffering. And one of those will be observations or certain

encounters with the police.

THE COURT: So what is it you intend to present the

jury in terms of these additional encounters with the police

or this continuing surveillance?

MR. DON: I'm sorry, I didn't hear --

THE COURT: What is it you intend to present to the

jury in terms of evidence of this continuing surveillance or

these continuing contacts he has?

1 3 : 2 7 : 3 8 MR. DON: If we're just limited to -- in your

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question we're talking about the surveillance --

THE COURT: Under your theory that you just

described, what do you intend to tell the jury or have a

witness tell the jury about this ongoing surveillance?

MR. DON: That there were -- well, there have been

admissions of ongoing surveillance.

THE COURT: What do you intend to tell the jury?

MR. DON: That Mr. Merritt is aware of the admissions

from the defendant that there was ongoing surveillance and as

a result it causes him anxiety and stress.

THE COURT: So is he only aware of them because the

defendants have admitted it or did he see it?

MR. DON: No, he'll also testify that he -- that he

experienced surveillance and saw, you know, police officers

appearing to be following him.

THE COURT: And you will have him describe that to

the jury, I take it?

MR. DON: Yes.

THE COURT: And you'll ask defense witnesses, isn't

it true that you continued to surveil him?

MR. DON: Potentially, yes.

THE COURT: All right.

MR. NOVAK: Dr. Hayes says in her report that one of

her opinions is as a result of the ongoing surveillance and

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Director Silbert's press conference after Mr. Merritt's

release from jail in which he opined on Mr. Merritt's

innocence and one other pronouncement, that he now has

hypervigilance. That didn't arise as a result of his six days

in jail. She's pretty clear about that. It's those types of

events that, as Your Honor has put it, are not directly caused

by the arrest and the six days of incarceration caused by

extraneous superseding events that postdate September 24th.

THE COURT: Well, let me ask this question: Let's

assume that Mr. Merritt testifies or the expert testifies that

as a result of being arrested and incarcerated for six days,

he is traumatically affected and every time he sees a police

officer, it affects him, and he'll presumably describe how it

affects him, and particularly so when he sees the police

officer in his rearview mirror, and on the following occasions

he saw himself being followed by a police officer, which

caused him great trauma as the result of his arrest, is it

your view that that is impermissible damages testimony?

MR. NOVAK: I think it's impermissible unless -- and

now that counsel knows this, and perhaps preps him properly,

he'll probably say, yeah, all of this is from those first six

days and it just carried on for 222 days.

So I don't think he can separate the first six from

the last whatever it is, 214 -- 216, 216 days.

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me, certainly can't do that. I know Dr. Lett can't. I don't

think Dr. Hayes can either.

THE COURT: So are you suggesting we shouldn't let

him testify, then, about the lingering effects of the trauma

of being arrested? 

MR. NOVAK: I think he can testify that there have

been lingering effects from the six days he spent in jail.

Without going into the detail of, "And I was surveilled, and

there were these pronouncements, and every time I see a police

car, including when I came to this deposition this morning,

when I was traveling to Dr. Lett's office for the IME, when I

was in Florida and a cop car came up behind me." It wasn't

152, I don't think, Judge, but --

THE COURT: What is the legal basis for precluding

that testimony? You certainly can argue to the jury and on

cross-examination that he can't prove that it was caused by

the six days, but what is the legal basis for excluding that

testimony?

MR. NOVAK: Because he can't say that it is a direct

result of the lack of probable cause to arrest and incarcerate

him for six days.

THE COURT: Well, am I to decide what he thinks he

can attribute his trauma to? I mean, there's no legal

principle I can see that says I can step into the testimony of

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injury is attributed to this event because I just don't think

it is attributed to that event. And that's not my role.

MR. NOVAK: I didn't mean to interrupt.

THE COURT: You didn't. That's all right. Go ahead.

MR. NOVAK: I think he's entitled to say that the six

days -- "The arrest and the six days has left me with some

lingering issues." But what I don't think he's entitled to

say is, "And those have been exacerbated," maybe he doesn't

use that word, "by the 216 days that followed the first six"

and the -- things like the pronouncements of law enforcement,

"Every time I see an officer," "Every time I see a cop car in

my rearview mirror." I don't think he can say that. I think

you can preclude that evidence, Judge, while still allowing

him to testify about having some lingering concerns that

result from his arrest and six days of incarceration.

THE COURT: All right. I understand the parties'

positions. Here are my thoughts on it, and I'll make actual

rulings at trial. I'm not going to preemptively slice up his

testimony and decide today what he can and can't say in terms

of the effects of the six days he was in custody. Nor would I

think it appropriate to say you can't give any examples to the

jury.

You said something, Mr. Novak, during your last

answer, which is he can't say, "Yeah, I was traumatized during

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days." I agree with that. The damages are not caused by the

events he was incarcerated after September 24th. He's seeking

damages for those six days. But if he says and testifies

under oath, "I was traumatized. In fact, those first six days

were the worst and they've left me anxious every time I see a

police officer, and certainly when I see them in my rearview

mirror." I don't think at this point that it is appropriate

for me to say you can't give that testimony.

Now, I will make rulings at trial on objections as

they're made and try to draw lines where I think they're

appropriate to, but I'm not going to foreclose that at this

point.

And -- but the clear view I have going in is the

evidence the plaintiff can present are damages attributable to

the six days of incarceration that remain at issue in this

case.

And I think that's the best I can do in terms of

sharing my view, and otherwise we'll just have to resolve that

at trial.

Let me just make a note here.

MR. NOVAK: Judge, does that mean that plaintiff

cannot ask the DPS officers about the surveillance that

occurred post dismissal?

THE COURT: I'm not making that ruling at this point.

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have a much better sense when we're in trial and how the

evidence is coming out as to whether or not I think that is

going to confuse the jury or -- 

MR. NOVAK: Excuse me, Judge. If you don't make the

ruling or -- or give us some advisement, we're going to hear

about it in opening statement.

THE COURT: Well, that's easy. Don't mention

surveillance during opening statement. You certainly can

mention it during closing if I allow you to present the

evidence. But otherwise I need to make that judgment call at

trial.

MR. NOVAK: Thank you.

THE COURT: All right. Let me ask you a question

about depositions.

I have some lengthy deposition excerpts that were

submitted with your Final Pretrial Order. I have a hunch

those will have changed some in light of my motion in limine

rulings.

But what I want to know is what depositions you are

intending to present by video because I need to rule on

objections before that's presented so that you know how to

edit the tape.

If you're just going to read a transcript because

it's not on video, then I'll rule on objections as they come

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video. So if you're going to do a video deposition, I'm going

to have to rule ahead of trial.

So tell me who's going to be presented by video.

MR. LAMM: Your Honor, per 334 Exhibit -- 334-2

Exhibit A, plaintiff will be offering the video deposition, or

at least designated portions, of Jennifer Crane, C-R-A-N-E,

and Glenn Merritt Senior, and the transcripts are attached to

the submittal.

THE COURT: How about from defendants?

MR. NOVAK: We will be offering portions of the video

deposition of Eddina Saucedo and possibly Cynthia Saucedo,

although I think that's unlikely, Judge.

THE COURT: Am I correct in my assumption that the

designations that were done back in February need to be

revised in light of my motion in limine rulings?

MR. LAMM: On behalf of plaintiffs, with respect to

Ms. Crane and Mr. Merritt Senior, I do not -- I will go back

and read them again, Your Honor, but knowing the nature of

their testimony, I don't believe that is affected by the

motions in limine.

THE COURT: Well, let me ask you a question, then.

As I look at Exhibit A to the Final Pretrial Order and I look

at the chart that is at the front of, say, for example,

Ms. Crane, I've got things in there that say, "subject pending

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seems to me that stuff may well have been affected by how I

ruled on a motion in limine.

MR. LAMM: Your Honor, I am quickly perusing with

respect to Ms. Crane, pages 5 through 20, because I believe

that's where the defendant's objections to motions in limine

arise.

And, respectfully, Judge, nothing that relates to a

motion in limine catches my eye. Insofar as it was the

defendant's objection, perhaps they could shed light as to --

THE COURT: Well, I think you all ought to talk about

this. I don't want to go through this a line at a time now.

I'd also note that on objections, sometimes there's

just a dash. Does that mean -- is that a ditto, the same

objection above, or does that mean there's no objection?

MR. LAMM: I believe Mr. Fox and I worked on this

portion together, and my recollection is that a dash would

indicate the absence of an objection.

MR. FOX: Correct, Your Honor.

THE COURT: Okay. Well, there are, by my count, ten

places in the depositions of Crane and Mr. Merritt Senior

where it says subject to motion in limine. I think you ought

to go through and confer and if -- if you change the

designations, just resubmit this chart with what the

designations are, what the objections are, and I will go

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order that rules on each of the objections so you know whether

evidence is in or out for purposes of editing the videotape.

MR. LAMM: Your Honor, just as an example, and I

don't mean to do this piecemeal, but page 107 of Ms. Crane,

and just for context for Your Honor, Ms. Crane is the paternal

aunt of the plaintiff. Mr. Merritt's father has a sister

named Jennifer Crane.

And there's reference at approximately line 11 on

page 107 -- page 107, "My older brother Leslie was

incarcerated." This is Leslie Merritt Senior. And I believe

in the motions in limine, the Court defers any specific ruling

on past criminal histories of Mr. Merritt's family members --

Mr. Merritt Senior, Leslie Merritt Senior --

THE COURT: I don't remember that coming up in any

motion in limine.

MR. NOVAK: I can't tell you off the top of my head

whether it did or didn't. I do, however, have an

understanding that before we brought up the criminal history

of Mr. Merritt, and I assumed that included his family

history, which would be his dad's two stints in prison, we

would talk to you first. So I don't think --

THE COURT: I want you to confer. Decide what is

objected to, what's not, resubmit the chart, the beginning of

Exhibit B with respect to Crane and Merritt, and I will rule

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week ahead of trial so you've got time to do the deposition

editing.

And with respect to Ms. Eddina Saucedo, let's do the

same thing, I would like you to just go through -- there's a

lot more objections to her than to others. Go through and see

if everything that was previously designated is still

designated. And if not, then let's take out the objections so

I don't to have spend time on those, and resubmit, if you

would, the chart that's at the beginning of Exhibit B with

respect to her.

In terms of Cynthia Saucedo --

MR. LAMM: Your Honor, I'm sorry, she'll be called

live as a witness.

THE COURT: Who will?

MR. LAMM: Cynthia Saucedo will be called by the

plaintiff.

THE COURT: If that's true, I assume you're not going

to play the deposition.

MR. LAMM: She was never -- designations were never

submitted by the defendant for Cynthia Saucedo.

THE COURT: Do you agree, Mr. Novak?

MR. NOVAK: Yes.

THE COURT: So just do Eddina Saucedo and the other

two. And if you can get those to me, say by the middle of

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you've got time to do the editing before trial.

MR. NOVAK: Judge, can I make a suggestion about

Eddina Saucedo. I won't know exactly what I want to use from

her deposition testimony until after Mr. Merritt testifies.

She'll be later in our case. It may be that we use little or

nothing from her. I'd hate to see the Court take the time to

go through that when I can tell you, assuming Mr. Merritt

testifies on the first or second day of trial, I'll be able to

tell you over the weekend what I'm going to do or don't do

with Eddina Saucedo's deposition.

THE COURT: That's fine with me. I'm happy to deal

with it then. But recognize that if you get it -- you'll need

to get it to me several days before you want to call or

present her videotape because I may not be able to get to it

that evening.

MR. NOVAK: Will do.

THE COURT: Yeah, I don't want to spend any time on a

deposition that's not going to be played either.

MR. NOVAK: Judge, can we -- I'm sorry, can we stay

on Jennifer Crane and Glenn Merritt Senior for one second,

Your Honor.

I understand your order on the motion in limine to

preclude post arrest activity, which would mean the phone

records indicating that a call was made to

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Glenn Merritt Senior's testimony that he received a voicemail

from his grandson sometime that weekend, he's not sure whether

it's the 28th or the 29th, and that the aunt, Jennifer Crane,

was there at the house when the voicemail came through, and

she heard it. But none of this was known --

THE COURT: I have no idea what you're referring to,

Mr. Novak. What's this phone call? What does it have

anything to do with?

MR. NOVAK: None of this was known to DPS until after

the arrest.

THE COURT: How does it have anything to do with the

case? I'm not understanding.

MR. NOVAK: Exactly, Judge. Thank you.

THE COURT: No. Tell me what was said in the phone

call.

MR. NOVAK: Plaintiff has persisted in putting this

in the exhibits and intends to introduce the testimony that a

phone call was made, and then on August 29, at 11:04 a.m. and

then -- by Leslie Merritt, and then say that he couldn't have

committed the Escalade shooting which occurred around that

time, or the Kia shooting which occurred around that time

because he received this phone call. Which may be the case,

but DPS didn't know that.

THE COURT: Excuse me, you confused me. I thought

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the arrest.

MR. NOVAK: DPS didn't learn these events until after

the arrest, when the phone records were obtained by warrant

and when Mr. Lamm made some disclosure in the state court

criminal case in October of 2015.

So the events that Jennifer Crane and Glenn Merritt

Senior want to testify about are events that were not known to

DPS at the time of the arrest.

THE COURT: How is it exculpatory? I'm not

understanding what this call was about, what the timing had to

do with anything.

MR. NOVAK: Sure. Okay. So the morning of

August 29th there is a shooting on the I-10 eastbound, occurs

about 11:04 a.m. It's the shooting of an Escalade. A few

minutes later, westbound on the I-10, just a little bit

further west than where the Escalade was shot, a bus is shot.

There is a phone record from Eddina -- from the phone Eddina

Saucedo used, that a call was made from that phone to

Glenn Merritt Senior in Florida at 11:04 a.m., August 29,

2015. The location of the cell tower is about five miles,

maybe, north of the I-10, which would indicate some difficulty

in both making the phone call and being on the I-10 at the

same time. I get that. I understand.

THE COURT: Okay. I understand that now.

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time --

THE COURT: I understand your point now. Okay. I

just didn't understand what that phone call had anything to do

with.

MR. LAMM: Your Honor, if I may, and I'm going to do

just a moment of factual context that I hope is helpful to the

Court.

The first two criminal charges or shootings, if you

will, with which Mr. Merritt was charged both occurred on

Saturday, August 29, 2015. The first vehicle was a Cadillac

Escalade that was shot. That was at 11:03 a.m. at

approximately 19th Avenue and the I-10. About two minutes

later, a Vanar, V-A-N-A-R, tour bus was shot at 43rd Avenue

and the I-10.

Now, Mr. Merritt placed a call to his grandfather at

11:04, smack dab in the middle, and that came back to a GPS

location in Glendale.

Now, I disagree with opposing counsel's assertion

that it was not known until after the arrest. And here is

why. There are two reasons.

Number one, the Court has certainly learned

Mr. Merritt was arrested on Friday, September 18th at about

6:45 at night. That day, a number of law enforcement

officials congregated at the emergency operations center at

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Phoenix police officer by the name of Edward DeCastro. He at

the time was a Phoenix homicide lieutenant who was brought in

to assist DPS -- pardon me -- giving his violent crime

experience.

He is now a commander and -- I apologize, I don't

have his deposition on this laptop, but I will make an avowal

to the Court that he testified in his deposition prior to

Mr. Merritt's arrest and upon his arrival, one or more DPS

officers represented to him, to Commander DeCastro, that DPS

had GPS evidence that put Mr. Merritt's phone and vehicle at

the scenes of the shootings.

Now, that is a false statement because it has been

undisputed in discovery that there has never been any evidence

to put Mr. Merritt at the scene.

Secondly, if Ms. Boucher can pipe in my laptop, I may

be able to show something to the Court that will --

THE COURT: Just tell me what it is.

MR. LAMM: Sure. Judge, there was an end of day

meeting report from September 17, 2015. That is Exhibit 5 for

trial. And specifically there is a notation at the top, and

if you would, I realize the Court doesn't have it right in

front of it, but various officers report on their findings of

the day, and there is discussion, this is before the arrest,

of cell phone tower dumps. And we would produce testimony

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utilizing a cell tower, the cell tower will capture your phone

number, and then basically you can dump all the numbers in a

given period of time that were in contact with the tower.

And, indeed, on September 17, 2015, quote, 59 common

numbers that hit on shooting locations 1 through 4, locations

3 and 4 are close and similar around the wrong time,

et cetera. Numbers going to the FBI tonight.

Now, this is extremely relevant because, one, it does

show that prior to the arrest there was knowledge of cell

tower usage at the shooting locations. It has been testified

to that Mr. Merritt was not one of -- that no number

associated with him was linked up to these cell tower dumps,

again, known pre-arrest, and, again, Commander DeCastro will

affirmatively testify that at a time prior to the arrest, it

was represented to him by DPS personnel that they had GPS data

that put Mr. Merritt at the scene, and that is a falsehood.

THE COURT: What does any of that have to do with a

call from Eddina Saucedo's phone in Glendale?

MR. LAMM: Because, again, the cell tower data at the

shooting locations gathered from August 29th specifically did

not have Mr. Merritt. And, again, if he was not at that

location, it is showing the rest of the story, if you would,

Rule 106 --

THE COURT: No, hold on just a minute.

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phone both Ms. Saucedo and Mr. Merritt used. We have a

voicemail --

THE COURT: Hold on just a minute.

MR. LAMM: Yes, sir.

THE COURT: Do you have any evidence that the

defendants knew of the Glendale call before the arrest?

MR. LAMM: We have evidence that representations were

made that he was -- that Mr. Merritt's phone was at the scene.

THE COURT: That wasn't the question I asked. Do you

have any evidence that they knew of the Glendale call before

the arrest?

MR. LAMM: We know that the numbers went to the FBI

on September 17th. And we know that a report was produced by

an FBI agent shortly thereafter, and that's where we, if you

would, place him or map him in Glendale.

THE COURT: Well, are you saying they did know of the

call?

MR. LAMM: I'm sorry, I can't hear --

THE COURT: Are you saying they did know of the

Glendale call?

MR. LAMM: They had the data in their possession,

because also on the day of the arrest they were gathering

records of Mr. Merritt's phone numbers. That's also in a

different exhibit, how they were acquiring information and

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THE COURT: Do you have a document that shows that

they had in their possession the Glendale call before the

arrest?

MR. LAMM: They had the data that would have given

them the Glendale call. I don't know the format, Your Honor,

respectfully, but --

THE COURT: So you're saying they collected data for

cell towers in Glendale in addition to those along the I-10?

MR. LAMM: I believe they collected data as to

Mr. Merritt specifically on September 18th, prior to the

arrest.

THE COURT: Well, but if this is a cell tower dump,

you've got to ask for certain cell towers. What did they do,

ask for every cell tower in Arizona and look for where his

number was?

MR. LAMM: Two separate issues, Your Honor, I'm

sorry. 

The cell tower dump was along the I-10 freeway

locations. That's one issue. We know that happened on the

17th.

As to the 18th, prior to the arrest -- I'm looking

for the specific exhibit. Mr. Don is going to assist me in

trying to find the specific report -- that at the emergency

operations center that I mentioned a moment ago, they were

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that occurred prior to his arrest and they acquired the

information.

What they did with them, Your Honor, I don't know.

But the reality is it still goes to the issue of probable

cause because if the data was in their possession and they did

not timely analyze it or what have you, it nonetheless -- it's

constructively in their possession, so I would answer yes.

THE COURT: Well, I am not going to allow this

evidence in unless you can show me that they had that data.

So I'll put that on your shoulders so you can pull that up.

Raise it with me before you mention in front of the jury this

notion that this call was placed at 11:04 on August 29th.

And my question to you will be what evidence is there

that they had that data in their possession before the arrest.

And then I'll make the decision as to whether or not it is

admissible.

But if they didn't have the data, then I don't think

it is relevant. And I understand what you're saying,

Mr. Lamm, but you can't be definitive today, I think, because

you haven't got it in front of you --

(Simultaneous speaking.)

MR. LAMM: -- report, but certainly I can -- please

correct me if I'm wrong. I do not hear Your Honor saying that

there's any issue with Commander DeCastro's testimony. With

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THE COURT: That's a different question, and we're

not going to start going through every piece of evidence

that's going to come out at trial.

MR. LAMM: Very good.

Your Honor, Mr. Novak brought this up, and I think we

were still talking about the deposition designations, and I

think we took a bit of a detour, but, Your Honor, I know is

going to address motions. But there was one motion concerning

depositions designations of Stephen Deady, D-E-A-D-Y, which is

Docket 412 --

THE COURT: We'll get to the motions.

MR. LAMM: I didn't know if the Court wanted to do it

then or within the context of designations.

THE COURT: We'll get to those.

MR. NOVAK: Judge, I think we had Director Milstead's

deposition designations. We're not calling Director Milstead,

former Director Milstead. We're not going to use his

deposition designations if there were any.

THE COURT: Thank you. I'm only going to look for

Crane and Merritt Senior. And then if you decide you're going

to use Eddina Saucedo, I'll look for hers later during trial.

Otherwise, if there's a deposition you're not going

to play by videotape that you're just going to read from the

transcript, have a copy of the transcript for me and I'll rule

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Let me make a note about what we just talked about.

Let's talk about a couple of other issues.

One of the motions that's a joint motion that has

been submitted is to revise the exhibit description and

objection list, which I will do. I'm going to simply take the

motion, which is at Docket 420, and I will substitute the

pages in the motion for the pages in the Final Pretrial Order

that contain the exhibits and objections.

So Exhibit 420 will, in effect, be a part of the

Final Pretrial Order.

As you know, the trial dates and times will be

August 28th, 29th -- pardon me, October 28th, 29th, and 30th,

and then the five days of the next week, the 2nd through the

6th. That is a total of eight days, but it is shorter than

what we had set aside in February, because we were going to

pick the jury the week beforehand.

So in that eight days -- and by the way, we have no

wiggle room on either side because we are booking trials in

the two courtrooms that are available in this courthouse right

now for COVID trials back to back, so we're locked into those

eight days, but we're losing a day, in effect, because we

don't have the jury selection happening ahead of time.

So the time that will be available to each side will

be 19 hours rather than 22 hours because we've lost that day.

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I will keep track of your time. I will count when

you're on your feet in front of the jury -- not voir dire but

once we started the trial. So it will include opening

statements, it will include direct and cross-examination, it

will include closing statements. And I will tell you every

day at noon and at the end of the day how much time you've

used so you can keep track of it and budget your way through

the trial.

Is the rule of exclusion going to be invoked?

MR. LAMM: Yes, Your Honor.

THE COURT: Okay. I'll leave it to you to advise

your witnesses not to come into the courtroom.

There is a split of authority in the case law about

what effect the rule of exclusion has outside of the

courtroom. Obviously it means that a witness who is excluded

can't be handed a transcript of the testimony that evening.

But my view is it does allow lawyers to prepare witnesses.

But you shouldn't otherwise be reciting testimony or

evidence or arguments to witnesses that's been made in the

courtroom unless it's necessary in your witness preparation.

Let's talk about jury selection. 

I need to have you prepare for me a joint list of

trial witnesses and get it to Christine, if you would, the

Friday before trial. I can't remember what date that is.

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What we will do with that list is we will give it to

the jurors when they check in that morning and ask them to

look it over. So when they come into the special proceedings

courtroom, one of the questions I will ask them on the voir

dire will be do you know any of these witnesses.

So, please, if you would, get together and just put a

list of witnesses. You don't need to put plaintiff's or

defense, you just need a list. But if they are a DPS officer

or something like that, that's helpful. Put that after so it

can help people know if they know these individuals.

So we will look for that joint list of witnesses from

you by the Friday before trial so we can duplicate it and hand

it out to the jurors as they come in.

You should have received my proposed voir dire. Do

you have those that were handed to you?

MR. NOVAK: Yes, Your Honor.

THE COURT: Look over those. My intent is to ask

those, obviously in addition to what we're learning in the

jury questionnaires. If you think more needs to be in that

proposed voir dire, please plan to raise that with me when we

get together on October 23rd to go through the questionnaires

and decide who we're excluding. It's pretty short because

we've got a pretty comprehensive questionnaire.

But when you get to question witnesses during jury

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can certainly ask follow-ups to what's in the jury

questionnaire and you can ask follow-up to the voir dire

answers I get with that voir dire, but if you think the voir

dire and the questionnaire are missing a topic, please be sure

to raise that on October 23rd so we can get it into the voir

dire if I think it's appropriate.

Any questions on that?

MR. LAMM: No, Your Honor.

MR. DON: No, Your Honor.

MR. LAMM: No, Your Honor. I did locate the phone

document that we were speaking of a moment ago when the Court

is ready.

THE COURT: As I mentioned, we'll go down to the

special proceedings courtroom at the end of this to look over

the layout for jury selection.

I previously indicated we will seat eight jurors. As

you know, there are no alternates in a civil trial. So if

there's eight left at the end of trial, all eight deliberate.

If we lose one or two, the lower number deliberates.

With eight jurors, that means we need 14 before

peremptory strikes, since there are three per side.

I talked to the jury office, and their recommendation

is we that have 40 people come in that day. Those will be 40

people who have been prescreened for COVID and for publicity

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will fit in the special proceedings courtroom.

So our plan will be to voir dire a panel of 40 on

October 28th. And with the questioning, I think we can be

done by noon and start the case first thing in the afternoon

on the 28th.

The rest of my jury procedures are pretty standard.

I voir dire the entire panel, by the way. I don't rotate

people through a jury box. So we'll voir dire all 40 of them.

You'll ask your follow-up questions to all 40.

We'll then excuse the jurors, and I'll hear any

challenges for cause, and then you'll exercise your peremptory

strikes, and we'll call the jurors back and identify the eight

who have been chosen to serve.

MR. NOVAK: And I'm -- Judge, I'm asking this

question without having looked at the special proceedings

courtroom. Will there be an opportunity if a juror wants to

discuss an issue in private to not have to dismiss the whole

panel and do it to the side somewhere?

THE COURT: Yeah. What I do on that is I just have

them -- I tell them if they want to raise a matter privately,

to do that, but just to identify themselves, and then we just

have them stay behind when we excuse the rest. So there will

be an opportunity to do that.

I'm not going to have them come up to a sidebar, just

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Thanks, Christine.

What we're also going to do before we go downstairs

is we're going to go in the courtroom next door because that's

where the case is going to be tried. Not in here. It's like

this, but it's just flipped. It's the mirror image. We're

doing that because that is one of the courtrooms, one of the

two courtrooms in the courthouse that are being deep cleaned

every night, and we're telling the juries we will deep clean

the courtroom every night. So that's where we'll hold the

trial, is in 602, not here in 603.

As I was saying, the rest of my jury instructions --

jury practices are pretty standard. I do not allow jurors to

ask questions of witnesses. They'll each be given a notepad

for taking notes. I do instruct them not to discuss the case

until the end of the trial.

Any questions on jury selection?

MR. NOVAK: No, Your Honor.

MR. DON: No, Your Honor.

THE COURT: Let's talk about the issue that was

raised regarding the Superior Court's action. Is it called a

Notice of Clearance?

MR. DON: Notation of Clearance.

THE COURT: Notation of Clearance. 

I know the plaintiff has his withdrawn its motion,

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There is a countermotion from the State that is still

pending. But let me tell you what my thought is. If you turn

to the preliminary jury instructions that were handed to you,

you should have them at the table, and turn in two pages, you

will find a statement of the case. The first paragraph of

that is what we included in the jury questionnaire. It's been

slightly tweaked, but it's same language.

The second paragraph is what I propose we tell the

jury. That will deal with this issue of the Notification of

Clearance. It doesn't mention it. Take a minute and read

that, and then we can talk about it.

Have you all had a chance to read it?

MR. DON: Yes, Your Honor. 

THE COURT: Here's my thinking. I don't think I

should tell the jury that the charges were dismissed without

prejudice and can be refiled, because as things stand now with

the Notification of Clearance, it appears they can't be

refiled. I don't think I can tell them that the charges can

never be refiled because, as things stand now the State's

trying to intervene and get that decision changed. We just

don't know for sure where that will end up.

It seems to me the safest thing is to tell them the

charges were dismissed, say nothing more, but then instruct

them clearly don't consider that one way or the other.

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because I think it is inevitable that during the trial, the

jury's going to learn that at some point there was a grand

jury proceeding. I could be wrong about that, but I was

assuming at some point that will become clear or they will

know that's clear if he was kept in custody until April.

What I wanted to do was tell them as well, you

shouldn't be influenced one way or the other by the fact that

there was a grand jury proceeding in the case.

So that's why I wrote it the way that I did.

Obviously we will take out the reference to aiding and

abetting in light of our previous discussion.

I'm interested in your thoughts on this.

MR. DON: Just confining my comments to the second

paragraph, the third sentence indicates: "The Court has

previously ruled, for legal reasons, that plaintiff may

recover damages for his claims, if any, only during -- only

for the six-day period between his arrest," et cetera.

That language, plaintiff objects to because it does

not distinguish between the accrual of his damages and the

duration of the damages. So it needs to be clear.

Plaintiff's position also is that any mention of the

grand jury should just be excised from the instruction. I

don't believe that it's going to be raised at trial. I can't

imagine plaintiff would raise it. And I don't think -- the

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been withdrawn.

Also, the instruction beginning from the sentence:

"Your task will be to decide first whether or not defendant

had probable cause to arrest the plaintiff," and then it

continues. Our preference would be just to excise that -- the

entire rest of that paragraph.

THE COURT: Rest of what paragraph?

MR. DON: From: "Your task will be to decide first

whether or not defendant had probable cause to arrest the

plaintiff on September 18, 2015, and second, if not, what

damages, if any, plaintiff incurred between September 18th and

September 24th, 2015."

And then, the next sentence -- there's two sentences

after that.

THE COURT: So you don't want me to tell them that

they shouldn't consider -- or you don't want me to instruct

them not to consider the dismissal of the charges?

MR. DON: No. I don't think that it's necessary. I

mean, I think the only -- so that would be our first

preference. If the Court's not inclined to do that, I would

request our instruction -- our proposed additional jury

instruction at Document 417, where it indicates that the

plaintiff was cleared of any allegations or charge arising

from defendant's investigation against him.

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THE COURT: That might get set aside. I'm not going

to do that. I'm not going to quote the Notation of Clearance

or tell them about it because I just think that is a big

question mark at this point. But I do think they need to know

charges were dismissed and he was released.

MR. DON: On the -- to respond to your comment about

whether it's a question mark, the Notation of Clearance, it's

got Rule 54 language in it under the Rules -- the Arizona

Civil Procedure. It's a final judgment. There's been no time

extending motion filed that would extend the time to appeal.

That time has expired. No one appealed it. It's a final

judgment.

THE COURT: Has there been a ruling on the motion to

intervene?

MR. DON: There's been no ruling on the motion to

intervene, but there's not a remedy that would overturn that

ruling.

THE COURT: Well, as indicated, I am not going to,

because I don't think I can accurately be definitive in front

of the jury on whether or not the charges can be re-brought.

But I do think they should be told that the charges were

dismissed. I don't think I should tell them they can be

refiled for the same reason.

I understand your point about the damages. I will

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an impression inconsistent with the discussion we had a few

minutes ago about damages.

And I guess I'm interested in the defense's view of

whether we can try this case with no mention of the grand

jury. If we can, I'm happy to take it out. I just assumed

that in eight days of evidence it's going to be hard for the

jury not to conclude that at some point there was a grand jury

indictment. And maybe that's wrong.

MR. NOVAK: Let me start by saying, Judge, in the

spirit of not being contentious, the second paragraph is

acceptable to the defendant. Thank you.

The -- it wasn't our intention to introduce testimony

about the indictment, because my understanding of the Court's

rulings were the opposite of that, that we were not to be

talking about the indictment. So I wasn't going to have any

witness talk about it.

I do think that you are correct, Judge, there needs

to be some answer to the questions that these jurors are going

to have about what happened to this case. And we all know

that we're infallible, and you'll give an instruction about

not using the internet, but somebody's going to do it. And

this way, at least they have some resolution from you about

what has happened. It may not be perfect in their minds, but

it's something. And it's certainly better than what we had

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As to -- and I apologize for being lengthy on this.

With respect to the damages, when you said toward the

end of that second paragraph, damages plaintiff incurred

between September 18th and September 24th, that language was

acceptable.

THE COURT: Okay. I think what I'm going to do is

this: I'm going to take the grand jury reference out of this

preliminary instruction, and let's see how things go during

trial. The intent will be to avoid the grand jury. And if at

the end of trial I don't think that's become an issue, we'll

just leave it be. If it has come up, if it was mentioned,

then we can talk then about how to clarify that during the

closing instructions.

So I will take out the two references to grand jury

in this paragraph, and I will look at the damages language in

light of the plaintiff's concern. If I change it, I'll let

you know. But I understand it's acceptable to the defense.

MR. NOVAK: If I may, Judge, Mr. Don brought up the

ruling in the state court, and I understand what you said

about that. My concern is that there will be a claim of

innocence by Mr. Merritt during the course of the trial and

probably in opening statement. A claim of innocence that

would be consistent with the state court pleadings that I

haven't seen because they're sealed, but inconsistent with the

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probable cause to arrest and were any damages the result

therefrom. Not whether Mr. Merritt was innocent or not.

So if I'm wrong about that, Judge, please tell me.

But if I'm correct that there should not be a claim of

innocence by Mr. Merritt, I'd like your advice to the parties

with respect to that.

THE COURT: I think that's another one I can't rule

on at this point. I mean, clearly -- for example, if -- if

Mr. Merritt is on the witness stand and says this traumatized

me because I didn't commit these shootings and the whole world

thought I did, I don't think it would be appropriate for me to

strike that testimony and say you can't claim innocence. If

the jury -- if in closing argument plaintiff's counsel says

there was no probable cause because he didn't shoot the BMW,

his gun was in pawn, and these officers knew it and there's no

way that they had probable cause, that's a claim of innocence.

I don't think I can foreclose them.

Clearly, the trial is not going to be about his guilt

or innocence in the case. And if plaintiff started going into

lengthy evidence or argument about the fact that he is an

innocent man, then I think that would raise relevancy and 403

issues.

But I think that, again, is a matter where I'm going

to have to draw lines during the course of the trial. I don't

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MR. NOVAK: We -- if I may, Judge, we still have

Exhibits 4 and 214, which are basically the same exhibit.

It's the list of Hi-Point C9 gun owners with guns in pawn and

from -- and we have proposed a redaction of that exhibit to

show only Mr. Merritt's name.

Plaintiff wants Aaron Saucedo's name on there, which

they -- which, if you allow it to stay, they will use to say,

See, here's the guy that they should have gone after and they

didn't, because Mr. Merritt didn't do this.

THE COURT: I don't want to try to anticipate every

argument that's going to be made.

MR. NOVAK: I understand, Judge. My concern is that

all of this is going to come out in opening statement, and

then when you give an instruction after Aaron Saucedo's name

isn't admitted into evidence or there's no testimony about it,

the jury's going to be thinking, well, who is this guy

Aaron Saucedo that was mentioned in opening statement.

MR. LAMM: Your Honor, if I may, Exhibit 4 is an

evidence inventory or roster of handguns that were impounded

by Detective Graff, G-R-A-F-F, on September 17, 2015.

Exhibit 214 is a printout from what's known as a pawn

database, whereby an officer can check for certain items

within -- I think it's sheriff's office database. That was

dated September 14th. And a list of Hi-Point C9 handguns,

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was one of those, Mr. Saucedo was one, and there was probably

about a half a dozen other folks who are listed on both those

documents.

We have no intention of focusing on any one person.

We don't have any intention of mentioning Mr. Saucedo's name.

However, the issue that we are concerned about is that

redacting everyone's name except Mr. Merritt causes a

situation of undue prominence. I assure the Court, I assure

Mr. Novak, we are not trying to back door anything in with

Mr. Saucedo, that we very mindful of the Court's ruling and

will abide by it. It is just simply a 106 issue. His name is

there. But so are half a dozen other people.

MR. NOVAK: I accept that representation and the

exhibits can go.

THE COURT: Okay. All right. That takes care of it.

All right. Let's keep moving. We've been at this

for an hour and a half and we're not halfway through my list

yet, so I want to keep moving along.

So in light of what we're going to do in that opening

instruction, and we'll put something like it in the closing,

it seems to me the motion that the defense filed as a

cross-motion on the notification of clarification is moot.

We're not going to be talking about it.

MR. NOVAK: I agree.

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MR. DON: Yes, Your Honor.

THE COURT: So that takes care of that issue.

Let's talk about a couple others.

On Motion 409, or the motion at Docket 409, is

Plaintiff's motion to amend the final pretrial order to add

the DVDs of the videos of the interrogation of plaintiff and

his fiancee.

Is there any objection from the defense?

MR. NOVAK: Yes, Your Honor.

THE COURT: What's the basis?

MR. NOVAK: The Court's --

THE COURT: Did you respond to that motion -- no, I

told you not to. That's right. Go ahead. Tell me today.

MR. NOVAK: The Court's pretrial order says the

witnesses must be specifically listed and that you cannot rely

on a catchall reference to the other side's witnesses.

Noedel and Deady were never listed by the plaintiff.

They did list some of our witnesses on their list, so they

knew to list specific witnesses. They didn't list Noedel and

Deady. Noedel is cumulative to Haag. And Deady is --

THE COURT: If I can interrupt you for a minute.

These are videos of their interrogations.

MR. LAMM: 409.

THE COURT: This is Docket 409. And the transcripts

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MR. NOVAK: I apologize, Judge. Maybe I

misunderstood where you were. I didn't hear what you were

asking me to respond to.

THE COURT: Okay. So do you have an objection to

409, which would add the DVDs of the interrogations to the

exhibit list in addition to the transcripts of the

interrogations?

MR. NOVAK: Yes.

THE COURT: What's the basis for that objection?

MR. NOVAK: The transcript of the interrogation

includes -- we're talking about Mr. Merritt's --

THE COURT: And his fiancee's.

MR. NOVAK: His fiancee. Right.

Mr. Merritt's interrogation includes his claim of

innocence and his offer to take a polygraph.

If we excise out his claim of innocence and his offer

to take a polygraph, they can have the transcript, they can

have the video.

THE COURT: Well, the transcript's already in the

final pretrial order; right?

MR. NOVAK: Well --

THE COURT: Isn't the transcript already listed?

That's what you said in your motion.

MR. LAMM: 43 and 48, Your Honor. I believe they're

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THE COURT: So the transcript's already listed. All

they want to do is add the DVD. You can make objections about

what comes in regarding them.

Are you objecting to the DVDs going on the witness --

or on the exhibit list?

MR. NOVAK: Yes. It's post arrest, Judge.

THE COURT: Are you objecting to the transcript on

that basis?

MR. NOVAK: Yes. And I was trying -- what I was -- I

short-circuited myself as I was trying to offer the Court some

middle ground, which is if Your Honor's inclined to admit

those exhibits, despite the fact they're post arrest, at least

excise out the claim of innocence and the polygraph.

THE COURT: I'm not deciding admission today. The

question is can the DVDs be in the Final Pretrial Order as

exhibits. I'll decide admissibility later.

I'm going to allow them in. The transcript is in.

You can object to anything that's in them that they want to

play and I'll rule on it. But I don't see a reason to keep

the video out if the transcript is already in it the Final

Pretrial Order. All it does is list it as a possible exhibit

at trial.

So I'm going to grant Motion 409.

The next one is the defendant's motion for witnesses

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remotely. Any objection?

MR. LAMM: No, sir.

THE COURT: I granted a similar motion from the

plaintiff earlier.

As you may know, there's a federal rule of civil

procedure on this, it's Rule 43(a), that says that remote

testimony at a trial can only be allowed for good cause in

compelling circumstances with adequate safeguards.

So for the record, I want to make the finding that in

light of the COVID pandemic I think it is appropriate to let

these witnesses testify remotely. So I will grant the motion

at Docket 410 for witnesses Shaw and Figeralli as I granted

the plaintiff's previous request for remote testimony.

The next motion, which is at 412, is to amend the

Final Pretrial Order with respect to witness Deady, D-E-A-D-Y.

The problem is that -- well, plaintiffs have

identified -- they don't know if Deady is going to testify at

trial, and apparently the defense won't tell them. I read the

e-mail which says, We don't have to tell you. That's the kind

of thing I want to see stop from here on. We tell each other

what we know. And if you don't know yet, you can say we don't

know, but to say we don't have to tell you isn't correct. I

want you to be communicating about who is going to be called,

and we're going to talk about that in a minute.

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objection to the motion to amend the final pretrial order to

include Deady, or can Defendants say today you know, he's

going to be called? If so, we don't need to amend the Final

Pretrial Order.

MR. NOVAK: We object to the inclusion of Deady.

And, Judge, I'm not trying to be difficult. I don't

know whether I'm going to use Mr. Deady in this trial or not.

It will depend upon how the testimony of Mr. Haag, Mr. Clark,

Mr. Weller, the other experts plays out.

THE COURT: Hold on a minute, Mr. Novak. Do you

agree that the reason they didn't list him was because you

said he was going to be at trial?

MR. NOVAK: Yes, absolutely, Judge.

THE COURT: So that's why they didn't put him in.

Now you say you don't know. Isn't it fair to put him in?

MR. NOVAK: Judge -- Judge, I'm just trying to hold

them to the same standard we've held ourself to with respect

to the obligations under your pretrial orders, which is

specifically list the witnesses. If they wanted these

witnesses, they should have specifically listed them. And

they didn't. And they're cumulative.

THE COURT: This is a deposition transcript, right?

MR. NOVAK: Yes.

THE COURT: That they say they didn't include when

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MR. NOVAK: All of that is correct, Judge.

THE COURT: And now you say he may not be live and

they can't list his deposition. So he may not be at trial and

they can't use him as a witness, even though they relied on

the fact he would be live.

MR. NOVAK: If we don't use Mr. Deady in our case,

and they want to use part of Mr. Deady's transcript in their

rebuttal case, and Your Honor thinks that is appropriate, I'm

fine with that.

THE COURT: All right. I'm going to grant the motion

at Docket 412 and allow the Deady transcript to be included in

the Final Pretrial Order. It will be become unnecessary if he

testifies, but if not, they can use the transcript.

We've already dealt with Docket 420, which is the new

exhibit lists.

Although I didn't understand a couple of things. In

the new chart that you gave me that's going into the Final

Pretrial Order, sometimes all in caps is the word "withdrawn."

I assume that means the objection is withdrawn rather than the

exhibit?

MR. LAMM: I believe the exhibit is being withdrawn.

THE COURT: Well, the exhibit numbers are different

from what was in the original Final Pretrial Order, so I

assumed if an exhibit was withdrawn, you just didn't include

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MR. LAMM: I'll let Mr. Fox weigh in because he and I

were working on this. Certain exhibits, the parties decided,

were not going to be used and we withdrew them. However, in

the interest of not reshuffling the deck and causing even more

confusion, we simply left -- if you would, that particular

number blank, I'm looking -- for example, 180 was withdrawn by

defendant. Rather than shift everything up and we were

cognizant that we would be leaving a hole in the exhibit list,

if you would, we thought it would be more confusing to

reshuffle the numbers, and we tried to keep consistency with

the exhibit list that was in 334.

And Mr. Fox seems to be nodding his head.

THE COURT: So all of these where there's an exhibit

number and a description and then the word "withdrawn" means

the exhibit is withdrawn?

MR. FOX: Correct, Your Honor.

MR. LAMM: I would agree.

THE COURT: Okay. The other question I have is

sometimes in the objection line it says "for identification

only." I don't know what that means.

MR. LAMM: Essentially neither party will seek to

admit it. It is being marked by the clerk for use by a

witness and neither party will seek to admit it into evidence.

MR. FOX: Correct. Refresh recollection or

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other about impeachment exhibits as well, Your Honor.

THE COURT: Okay. So that is referring to the

exhibit as well and not the objection. Okay. That answers

it. Thank you.

There is a motion pending with respect to Ms. Peloza.

I'm going to grant the defendant's request to file a surreply

because there was new information presented in the reply

brief, and I think defendants should have a chance to respond

to it before I rule.

How soon can the defense file a reply? And I don't

mean by Monday, but --

MR. NOVAK: Wednesday.

THE COURT: Wednesday would be great. Okay. If you

file a surreply by Wednesday, then I will rule on the Peloza

motion with that surreply in hand.

So that means I'm granting the motion that is

Exhibit -- pardon me, is at Docket 411 to file a surreply and

denying the motion to strike that is in the same docket.

Okay. Let's talk for a minute, then, about -- well,

coming back to you, Mr. Novak, the point that you had stood up

to raise about witnesses wasn't in any of those motions that

are pending, so I don't know if I jumped over something or

missed something.

MR. NOVAK: I think you've covered everything, Judge.

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hadn't -- when we switched to Exhibit 409 that I hadn't --

MR. NOVAK: Give me one second.

THE COURT: Yeah.

MR. NOVAK: Two things, Judge. One, plaintiff, on

the day before the final pretrial order was submitted -- I'm

sorry, the joint pretrial order back in February, added a name

of Officer Barcello. It was well past the close of discovery.

Barcello -- no deposition was taken by either side with

respect to him, and it was a late disclosure of Barcello. We

considered filing a motion in limine, but decided to wait and

bring it up with you today. That's one point. And then I

have one other point once we resolve that.

THE COURT: Well, that is listed -- Mr. Barcello is

listed on page 19 as a witness the plaintiff may call at

trial.

Do you intend to call him?

MR. LAMM: Your Honor, Mr. Barcello is a foundational

witness for authentication, and throughout this case I was

assured we would not have issues with authentication and we

would be playing quite civilly.

Now there's a document that Mr. Barcello signed off

on. There's no question that he's a DPS employee. He's a

police officer. And apparently now there's a challenge to

that individual. So perhaps we erroneously relied --

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in as a custodian of records to authenticate documents?

MR. LAMM: Basically, yes, Your Honor.

THE COURT: Do you have an objection to his use for

that purpose?

MR. NOVAK: No.

THE COURT: Okay. He's in the Final Pretrial Order.

If you decide to use him, you can use him for that purpose,

but only that purpose.

What was the next issue, Mr. Novak?

MR. NOVAK: With respect to all of the cell phone

data, the data that was -- I know this is repeating a little

bit of what we've already covered, Judge, so forgive me.

I understand that Mr. Merritt's cell phone and Eddina

Saucedo's cell phone were collected at the time Mr. Merritt

was arrested. That was the first time that DPS knew their

phone numbers.

Search warrants were being prepared during the course

of the day to secure phone records, but the phone number to be

associated with those warrants was not known until the phones

were collected from Merritt and Ms. Saucedo. 

The fallout from that includes the call to grandpa,

which we already talked about.

THE COURT: Includes the what? Includes the what?

MR. NOVAK: The alleged phone call to Glenn Merritt

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Plaintiff's Exhibit 13, it includes a text message that is

Exhibit 54, and a number of other records, 37 through 39, none

of which were known by DPS until after the arrest.

I can object to all of this at trial, but my concern,

as I stated earlier, was this is going to be mentioned in the

opening and we're not going to have an answer for it, and it's

going to be left out there and the jury's going to wonder why

it was that cell phone information was talked about, never

introduced, and I don't want to have to try to make up a story

for something that didn't occur, and I don't want to have to

ask the Court for an instruction to have the jury disregard

what they've already heard.

THE COURT: So the basis for your assertion is that

DPS did not know the phone numbers for either the --

MR. NOVAK: I'm prepared to submit a memo this

afternoon.

THE COURT: Hold on a minute. Let me finish my

question.

You're saying that DPS didn't know the plaintiff's

phone number or Ms. Saucedo phone number before the arrest.

MR. NOVAK: Correct.

THE COURT: Do you agree with that?

MR. LAMM: I do not.

If the Court wants to give me a monitor, a picture is

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THE COURT: Just tell me what it is.

MR. LAMM: I'm looking at Exhibit 29. It was a log

off -- dictated by Captain Jennifer Pinnow, September 18,

2015, 0925 hours. Log started. Suspect Number 1, Leslie

Allen Merritt. Biographical information. Phone number

480-532-3973. That is the phone number that was calling at

11:04. As I scroll down, Your Honor, to the time stamp in the

log, if counsel needs it, it is page 5 of 9 on Exhibit 29 --

let me just get to the right page. 

At 12:17, Coleman, which is Captain Coleman, said the

480 POS, Peter Oscar Sam, phone as -- should be "has" -- not

been turned on all day per Verizon.

Verizon was the carrier. That is indisputed through

testimony.

THE COURT: Okay. I don't need to hear more about

plaintiff's phone. How about Ms. Saucedo's.

MR. LAMM: Well, this is -- but the 480 number, this

is Mr. Merritt's phone because this is at 0925 hours. The

DPS-generated document before the arrest lists the 480 number

that at 11:04 --

THE COURT: I heard that. I heard that. I'm not

understanding -- you said that was Mr. Merritt's phone.

MR. LAMM: That's Mr. Merritt's phone, and we have

testimony to support that --

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MR. LAMM: They shared a phone.

THE COURT: Is it the same number? Same phone?

MR. LAMM: Yes. Yes. And Mr. Merritt, his voice is

on the voicemail.

THE COURT: Okay. That's fine.

Mr. Novak, what is your response to that?

MR. NOVAK: We dispute that, Judge. The 480 number

that was used to call Glenn Merritt Senior was a number that

was assigned to Cynthia Saucedo. Not to Eddina. Not to

Leslie.

THE COURT: I'm sorry, let me interrupt you for a

minute. I thought we were talking about something different.

You said that all the other evidence about plaintiff's cell

phone is irrelevant because they didn't know that number until

after the arrest. And it sounds like they knew it --

MR. NOVAK: That was my understanding. I haven't

looked at this exhibit today.

THE COURT: On that issue, whether or not I should

say now none of the cell phone information comes in because

they didn't have the phone number, I can't rule because it

sounds like they did have the phone number.

MR. NOVAK: And I apologize for taking your time,

Judge.

THE COURT: No, that's okay.

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this point. I think that was the issue you had raised.

MR. NOVAK: Yes.

THE COURT: Okay. Did you have any other point you

wanted to raise?

MR. NOVAK: No, Your Honor.

THE COURT: Okay.

MR. LAMM: Your Honor, on that last issue, there was

one other entry that may assist Your Honor.

THE COURT: I'm not ruling now. I guarantee,

Mr. Lamm, I won't remember this tomorrow so there's not a lot

of point in telling me for trial. We'll have to talk about it

then.

MR. LAMM: Okay.

THE COURT: Okay. Let's talk, then, for a minute

about court procedures.

I want you to tell each other who you're going to

call as a witness 48 hours in advance. Now, I recognize

sometimes that can change the day before trial, and if it

does, let each other know. But I want both sides to have the

opportunity to prepare their cross-examination ahead of time.

It will be shorter, it will be more effective.

Obviously, if you tell them I'm calling somebody the

day after tomorrow, and you decide tomorrow that you're not

and you're calling somebody else instead, just tell them. But

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informed of not only that, but when you're going to rest so

the other side can be ready to go and have their witnesses

teed up.

Let's talk about COVID trial procedures. We're all

going to wear masks all of the time. I know it makes it hard

to hear sometimes. One exception will be the witness. As you

can see, we've got a plexiglass barrier around the witness.

The same is true next door. So we'll have witnesses take off

their masks when they testify. We'll wipe down their area

before the next witness comes up. But otherwise, we all wear

masks all the time and the jury will be told to wear masks all

the time. And we're going to require masks. Face shields

aren't as effective. So that's one of the steps we'll be

taking.

We are going to be spaced out. We can put eight

jurors in the box and have them be six feet apart from each

other. Because it's a civil case, all of the jurors will be

in the box. In criminal cases we're having to put them behind

you in rows. I'm glad we don't have to do that.

There also needs to be space at counsel table. The

next courtroom is like this one. The plaintiff's table, which

is by the jury box, can only accommodate two people. So that

means that if Mr. Merritt wants to sit by you, he's going to

have to be behind that barrier in the row behind. We're not

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that is closer than six feet.

On the defense side, we can put three people six feet

apart. So if you've got a fourth, you'll need to have them --

a lawyer behind you. And if you want a client representative,

you can have them as one of the three at counsel table or you

can have them sit behind as well. But we're going to be

spaced out with three people on the two tables for defense

counsel.

You'll see in the next courtroom when we go in, that

there are blue dots on the seats in the gallery every other

row that are six feet apart. 

We have them too? I didn't know that. 

That means we can only seat people every other row,

six feet apart. If we have some attorneys in the front row,

that means we can put ten observers in the courtroom, and no

more.

So a question I have is whether you think we're

likely to have more than ten observers for this trial, given

COVID. Are people going to come in and be willing to sit with

masks through the entire trial? Because if so, we're going to

have to set up a closed-circuit relay to a different courtroom

and have the people sit in there.

What are your thoughts?

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THE COURT: Tell me why.

MR. LAMM: Your Honor, respectfully, this is a case

that is known, it has garnered media attention. I think there

will be interest in this case. If Mr. Don and I bring in one

or two assistants during trial, that will eat up, I know

Mr. Fox, Mr. Dawson, they're there, we have three at counsel

table. And certainly I'm not casting any aspersions, but the

reality is just the presence of counsel and their staff in a

case with this much discovery and this many moving parts will

eat up a good bit of the allotment of seating for the public.

THE COURT: Well, if you take that row, there will be

ten seats. Do you think we'll have more than ten observers?

MR. LAMM: Your Honor, I don't want to be

speculating, but if I had to bet on it I would say yes.

THE COURT: Okay. What do you think, Mr. Novak?

MR. NOVAK: We don't anticipate any visitors,

Your Honor, other than staff. And Mr. Dawson, who has been

mentioned, is our paralegal, Your Honor. And we'll have a

client representative who will be here some of the time,

hopefully most of the time. But no one else.

THE COURT: Okay. Well, I think what I will do is I

will have the courthouse staff ready to turn on a video feed

if it turns out we need more seating than that.

And I'll have a courtroom ready where the overflow

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the courtroom, obviously, because of the assurances we've

given the jurors.

MR. LAMM: Your Honor, will marshals be at the door,

obviously in plain clothes, governing traffic?

THE COURT: Well, you mean in terms of allowing

people into the courtroom?

MR. LAMM: Yes, Your Honor.

THE COURT: They won't be marshals. We may have my

judicial assistant. If we think -- do you think we need

security for some reason?

MR. LAMM: No, no, no, Your Honor. I only say that

because I know Judge Bolton has a trial right now and there

were two marshals at the door. I believe they were marshals.

THE COURT: It's probably a criminal case, then.

MR. LAMM: No, no. It's civil -- it's a civil

matter.

THE COURT: We don't plan to have any marshals here

unless there's a security concern you have.

MR. LAMM: I have no reason to think that will be an

issue.

THE COURT: Okay. The jury, the eight-person jurors

will be assigned four to each jury assembly room, which is in

the hallway next to the courtroom, so they can go in there and

not be close to people and use the restroom during a break.

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so they can be spaced out.

Sidebars. During the course of trial will be one

person from each side. We'll do them at the side of the bench

in there, and we'll just have you stand back, and then when

you need to speak, we'll have you step up to the microphone

and I'll slide back and we'll just talk to each other that

way. And the sound system should block out what is said. But

we can only have one person from each side come to sidebar and

maintain the spacing that we need to, to keep everybody safe.

That means clients don't come to sidebar either.

There's just no other way to do that. I wish we had the

technology to involve more people in sidebar, but we don't in

this courtroom or the next one. So that's what we'll do on

sidebars.

What I'm going to do is -- 

Christine, if could you help me remember this.

-- I'm going to have my office send to you a brochure

that was prepared by the administrative office of the U.S.

Courts on jury trial practices during COVID. It is just --

it's a well done half-dozen page booklet on all of the things

you should do during trial to protect people. It includes

handling of exhibits and all kinds of issues. Number of

people in elevators, et cetera. Just so you're aware of what

we're going to be doing elsewhere in the courthouse.

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elevator at a time. We're going to tell the jurors where they

can go and can't go during breaks. We're just going to try to

be really careful to follow through on our commitment to them

that they will be safe while they are here.

Any questions about COVID procedure?

MR. NOVAK: No, Your Honor.

MR. LAMM: No, Your Honor.

There was one legal issue, but whenever the Court's

ready.

THE COURT: Unless there's no COVID issues, let's

talk about your --

MR. DON: Well --

MR. LAMM: Go ahead.

MR. DON: I've got one issue that is arising because

of the COVID-related restrictions, having to do with the

masks. And I know the Court earlier said that it's not

inclined to permit juror questions, written questions to

witnesses or to counsel. It wouldn't hurt to ask.

I think the challenge that we, as advocates, are

going to have is trying to calibrate our presentation to the

jurors when it would be -- when it's going to be very

difficult to read their facial expressions, if not impossible.

It would be helpful to get -- to allow juror

questions so that at least we can have some gauge to -- to how

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efficiently.

So I'll throw that out there. That would be

plaintiff's request, to permit written jury questions.

THE COURT: What are the defense thoughts?

MR. NOVAK: I don't have a position either way,

Your Honor.

THE COURT: You know, the one factor to take into

account, Mr. Don, is, as you know, if we do that it reduces

the time that is available for direct and cross-examination

because at the end of each witness, we need to collect the

questions, I need to review them, I need to talk to you about

them before we ask them of the witness. That can take 10, 15

minutes.

So if we do that over the course of an eight-day

trial, we'll lose an hour or two per side, probably, of your

time. And that's a factor to consider. Since we're already

down to 19 hours, do you want to have that additional

time-consuming activity? If you do, I'll think about it.

I mean, if I understand your point about masks and

the fact that you won't be able to see facial expressions,

that might be a good reason to do questions. But it does take

time out of the time we've allotted. And as I've indicated,

we don't have the luxury of going into the next week.

MR. DON: I did not consider the Court's point about

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THE COURT: Yeah. Yeah. Think about that. If you

want to do the questions, raise it when we get together on the

23rd, and we can talk about it then again.

You had a legal issue, Mr. Lamm?

MR. LAMM: Your Honor, yes. Thank you.

In Docket 387, there was discussion of the report of

Gregory Klees, K-L-E-E-S. He was the gentleman with the

Bureau of Alcohol, Tobacco, and Firearms, and the Court asked

that if plaintiff intended to pursue any of his testimony or

his findings, that we should raise it at the final pretrial

conference. And that is what I'm doing.

I understood the Court's concern to be two-fold.

One, foundational, and what has been marked for identification

as 61 --

THE COURT: Hold on just a minute, Mr. Lamm.

MR. LAMM: Yes, sir. 

THE COURT: What page are you on in 387?

MR. NOVAK: Page 5, Your Honor.

MR. LAMM: Thank you.

THE COURT: Let me get there just so I can remember

what the issue is. Give me just one minute to look back at

this and refresh my memory.

Okay. I've looked that over again.

Go ahead, Mr. Lamm.

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correctly, the Court's concerned about two issues; one is

foundation and the other is hearsay.

Obviously, I would imagine that the hearsay portion

needs to be borne out in the evidence. But with regard to

foundation, Exhibit 61 has a face sheet which is an affidavit

of a custodian of records from the Bureau of Alcohol, Tobacco,

and Firearms, the chief operations officer of the lab. It was

received in September of 2017 and shortly thereafter disclosed

to the defendant with the affidavit.

THE COURT: Is it an affidavit -- that authenticates

it is an ATF document. Is it one of the affidavits that

addresses the 803(6) or the 803(8) factors?

MR. LAMM: I believe the relevant paragraph is "The

records were prepared in the ordinary course of business at

our office at or near the time of the act, condition, or event

described therein or received or maintained by our office in

the ordinary course of business."

THE COURT: Okay. So tell me exactly what you want

me to do on that today.

MR. LAMM: Well, I don't know that we can deal with

everything today, but your order asked that we raise this

issue if we intend to use the Klees report, which is what we

do intend to do, Your Honor.

Candidly, it may come in through our quality

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issues, and I believe we've proffered this in our written

papers, is that the Department of Public Safety asked the ATF,

as part of their quality assurance process to do an

independent review of the ballistics, and the ATF, in fact,

did so. They came to a different conclusion than the DPS

crime lab. However, that conclusion was in line with Mr. Haag

and Mr. Murdock, who, of course, they won't be hearing about.

And then the DPS was very critical of the ATF's findings for

various reasons.

So those would essentially be the purposes that it

would be coming in.

THE COURT: Mr. Klees, since he's not a witness,

obviously would not be here to testify about it.

MR. LAMM: That is not our intent.

THE COURT: So tell me how you use it at trial when

we've got the jury in the box. What do you do with that

document? Well, assuming for a minute it could satisfy 803(6)

or 803(8).

MR. LAMM: Well, it's really two-fold. Todd Weller,

W-E-L-L-E-R, is our quality assurance expert, and he'll talk

about the policies and what needs to be done as part of root

cause analysis. We would certainly be showing it to

Mr. Weller. He is an expert on root cause analysis quality

assurance policies and procedures within the crime lab. So I

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was not done correctly.

DPS has a rebuttal expert to Mr. Weller by the name

of John Maciulla, M-A-C-I-U-L-L-A. He was referenced in your

opinion, although his potential testimony is limited to rebut

Mr. Weller. It could be used to impeach him.

And then also, Mr. Silbert, who is now the director,

was extremely critical, not only of Mr. Klees, but Mr. Haag as

well, and I think it would be relevant as to Mr. Silbert's

bias essentially that we're right and the world is wrong.

THE COURT: Defense counsel.

MR. NOVAK: Mr. Weller and Mr. Maciulla are talking

about policies and procedures within the lab. They want to

use Mr. Klees' report to talk about the accuracy of the

ballistics identification.

The report is hearsay, judge. And neither of the two

individuals they talked about using the report with gave you

an expert report on identification of ballistics.

THE COURT: What is your response about the

authentication certificate that addresses at least some of the

business record and public record exception elements?

MR. NOVAK: Well, it's a little unclear to me whether

that certification, which is very general in nature, satisfies

the requirements of, as you pointed out, 902(4) and 901(b)(4).

It's not recorded or filed in a public office, which is

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901(b)(4). And to say it was an unusual request is an

understatement.

As plaintiff's counsel knows, it is rare that second

opinions are sought by labs, and so it would be rare for ATF

to render a second opinion. So to say that this is a normal

course business activity for ATF is, I believe, an

overstatement.

THE COURT: Well, why doesn't it come within

902(b)(4)?

MR. NOVAK: Why do I not think --

THE COURT: Why does it not come within 902(b)(4)?

MR. NOVAK: Well, 902(b)(4), I don't have the Rules

of Evidence in front of me, but my -- the notes I wrote

earlier today said requires some distinctive characteristics.

THE COURT: That's a different element.

MR. NOVAK: I'm sorry?

THE COURT: That's a different rule. 902(b)(4) is a

certified copy of a public record. A copy of an official

record -- or a copy of a document that was recorded or filed

in a public office as authorized by law -- if the copy is

certified as correct by the custodian or another person

authorized to make the certification or it complies with

902(1), (2), or (3) or a federal statute.

All this does is authenticate it. This doesn't get

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document.

MR. NOVAK: Thank you, Judge.

And I believe that it is not a document that is

recorded or filed in a public office in the normal course.

You can't go to ATF and get this file.

Public doesn't have this file available to them.

THE COURT: All right. So one objection is hearsay,

what was the other one?

MR. NOVAK: The other one is the lack of

authentication.

THE COURT: So one is authentication and one is

hearsay. Those are the two objections?

MR. NOVAK: With respect to hearsay?

THE COURT: No. Your two objections that --

MR. NOVAK: I'm sorry.

THE COURT: -- you are making are authentication and

hearsay.

MR. NOVAK: And -- and the fact that the use -- the

plaintiff wants to -- intends is with Mr. Weller, who isn't an

expert on ballistics identification, or Mr. Maciulla, who is

also is not testifying as an expert on ballistics

identification. So it's coming in through the back door, two

experts who are giving not the same type of opinion.

THE COURT: Okay. I understand.

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colleague misunderstands the purpose for which we seek to

offer this. I'll just briefly address the authentication. I

think there is adequate compliance with the rule and, once

again, we had assurance, at least I thought we did, that

authenticity was not going to be issue. We had bigger issues

to worry about.

THE COURT: Do you have a copy of this exhibit, by

the way?

MR. LAMM: I'm sorry, Your Honor?

THE COURT: Do you have a copy of this exhibit?

MR. LAMM: I have it in a folder and left it at my

office. I could easily --

THE COURT: Just file it, would you, Monday.

MR. LAMM: Absolutely. 

THE COURT: Just with a notice. I want to look at

the authentication certification and the document when I rule

on this. But go ahead and --

MR. LAMM: I'll get that done before day's end,

Judge.

THE COURT: Okay.

MR. LAMM: With regard to Mr. Weller, Mr. Maciulla,

they're testifying as to policies and procedures. And one of

the policies and procedures within the realm of quality

assurance is when there is an error that there needs to be a

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analysis when deemed appropriate, and this is one of those

occasions.

What Mr. Weller would specifically testify to is that

notwithstanding the fact that the root cause analysis work

that was commissioned and requested by the Department of

Public Safety in furtherance of their own policies was

inconsistent, further evidence of inconsistency with the lab's

finding, they did nothing to remediate the problem after being

put on, arguably, notice that an independent examiner

disagreed with their lab.

So it goes to the inadequate quality assurance

policies enforcement and DPS's follow-up on the root cause

analysis.

THE COURT: Wouldn't -- wouldn't the inadequate

follow-up concern the next case and not this one?

MR. LAMM: No, sir.

THE COURT: I think you said that he said after this

issue came up, they didn't follow up and do what they needed

to do to correct the problem.

MR. LAMM: Well, part of the problem, quality

assurance is not just going forward, but you have to look at

the individual case where the error was made. And for the

purpose of our argument, I'm sure the defense will agree, we

believe that an error was made.

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know, you are told that, yes, you have a problem in the case

before you -- we'll just say the Leslie Merritt case -- you

need to go back and then go back into your findings based on

what the independent work and the root cause analysis said.

It is not just simply moving forward, that the policies and

the procedures require them to go back to the Merritt case and

they, frankly, didn't do that because the -- the lack of any

sort of change is any evidence of policies and procedures,

frankly, before Mr. Merritt even became a suspect in this

case.

So part of the argument that Mr. Weller will be

making is that there is a systemic -- did I -- I'm sorry, the

Court's --

THE COURT: I'm not understanding what you just said.

You said the lack of any sort of change --

MR. LAMM: Well, the lack of any change --

THE COURT: -- and any evidence -- hold on just a

minute.

MR. LAMM: I'm sorry.

THE COURT: You said the lack of any sort of

change -- sorry, it's moving, hold on just a minute. I've got

to stop talking, I know.

You said the lack of any sort of change is evidence

of policies and procedures before Mr. Merritt even became a

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MR. LAMM: Yes, Your Honor. And it shows a lack of

reasonable reliability of the crime lab. And given that

the -- well, it was -- it's been testified multiple times that

the ballistic evidence was the sole basis of arrest, and but

for that ballistic evidence, Mr. Merritt would not have been

arrested. It goes to the reliability of the conclusions and

the fact that DPS did not follow policies with regard to this

case.

THE COURT: Okay. Yeah, file the document, if you

would, and I'll look at it on the hearsay issue.

Mr. Novak, last comment.

MR. NOVAK: When you look at it, Judge, if I could

ask you to remember that Mr. Klees' examination was well after

the time Mr. Merritt was arrested and well after the time that

Mr. Kalkowski had done his examination and Mr. Shaw had done

his verification. Which may have been all the DPS officers

knew at the time they arrested him.

THE COURT: What's that exhibit number, Mr. Lamm?

MR. LAMM: 61, Your Honor.

THE COURT: Okay. I will look at that. When I get

the document.

All right. Anything else we need to raise while

we're here?

MR. LAMM: Your Honor, one thing caught my attention,

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trial. The defense intends to call Tracy Foster, common

spelling, who is an analyst at the Department of Public

Safety.

She was responsible for compiling various pieces of

data, and there are two exhibits that I believe relate

directly to her.

One interestingly, Exhibit 155, is called motion

alibi research. And in Mr. Merritt's criminal case in state

court, there was a motion to modify release conditions.

Ms. Foster issued a report, motion alibi research, to

effectively rebut the claims that were made in the pleadings.

Obviously, much -- in our opinion, we, I believe, raised a

number of objections: hearsay, relevance, and 702, as well.

So we're concerned, we're putting it out there to the Court.

And also, Ms. Foster authored 192, which is a summary

of the investigation. It's a different document. That

document, and certainly we can provide these to the Court,

contain criminal histories of a lot of different individuals,

family members of Mr. Merritt, family members of Ms. Saucedo,

Facebook posts --

THE COURT: Mr. Lamm, I'm sorry to cut you off.

What's the issue?

MR. LAMM: Basically we are concerned that

undisclosed expert testimony will be coming in, and I raise

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because, frankly, I interviewed her in the criminal case.

THE COURT: What's the undisclosed expert opinion you

think is going to come in?

MR. LAMM: She said -- and I didn't bring these

notes -- how she believed that Mr. Merritt, his Facebook

postings expressed anti law enforcement views that made him

more likely to be a suspect. She interpreted phone records as

to patterns that she believed were present. And I asked her,

"What training do you have in this?" and she said, "My common

sense."

Again, she just hasn't been disclosed as an expert.

I want to cautiously bring it --

THE COURT: All right. Do you intend to elicit those

opinions?

MR. NOVAK: I don't intend to elicit any commentary

from Ms. Foster that wouldn't be appropriate. And should we

get into some area, I'll -- should we anticipate getting into

that area, I'll advise the Court and counsel ahead of time.

THE COURT: Okay.

MR. NOVAK: With respect to the plaintiff's criminal

history, I'm advised by the Court's previous order that I need

to bring that to the Court's attention before I ask any

questions about it.

THE COURT: Okay. All right.

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mentioned, you can pick up your copies of the jury

questionnaires. I can't remember the date, but it's about a

week before that, and I will get you a list of those I propose

to excuse ahead of time, and we'll talk about those on the

23rd. If there's other issues, voir dire or other matters

that come up, you can raise them then.

Let's not file motions between now and then. If you

have an issue, raise it then and we'll deal with it.

And why don't you gather up your stuff and meet me

outside Judge Snow's courtroom in about five minutes. We'll

look at that just so you can see how it's laid out, and then

we'll go down to the special proceedings courtroom and we can

look at that.

Anything else, Jeff? 

THE LAW CLERK: I had one question.

THE COURT: Well, I'm glad Jeff raised this yeah,

we've got three witnesses who will be testifying remotely.

It's very important you talk with -- maybe you've already done

this, but with the Court IT folks, because they're going to

be -- probably need to go to a courthouse near where they

live.

THE COURTROOM DEPUTY: I'm sorry, Judge. They did a

test I think yesterday --

MR. LAMM: Mr. Weller did his test with IT. It was

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Case 2:17-cv-04540-DGC Document 449 Filed 10/22/20 Page 84 of 87
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THE COURTROOM DEPUTY: And because California is not

accommodating that right now with COVID.

THE COURT: Oh, the courts aren't?

THE COURTROOM DEPUTY: Uh-uh. So they're using the

test -- they use Jabber to testify from home.

THE COURT: So it sounds like that's being worked

out. Be sure you've got it all squared away with how they're

going to testify.

And what will likely happen is there will be -- we'll

see it over in Judge Snow's courtroom, there's a big screen TV

that is on a cart. That will be probably positioned in front

of me so the jury can see the individual and the lawyer

questioning can see the individual as well. Maybe farther

back. It's a pretty big screen, but it's not going to

encompass the wall. And that's how they'll be seen in the

courtroom.

MR. NOVAK: The issue that Mr. Figeralli raised with

us and the reason why we asked to have his testimony be remote

is that his wife is a cancer victim and he -- I don't know

that I can convince him to go to a courthouse.

THE COURT: She just said that's not necessary.

MR. NOVAK: Oh, I'm sorry.

THE COURT: Apparently that's being worked out by

Jabber and it will work from home. But make sure with our IT

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ahead of time.

MR. NOVAK: Yes, Your Honor.

THE COURTROOM DEPUTY: Your Honor, I'll e-mail

counsel and give them a list of everything I need from them

and a contact number.

THE COURT: So Christine will get you an e-mail with

everything she needs from you on that issue.

Jeff, does that address your issues?

Okay. I'll see you outside of the courtroom in a few

minutes.

(End of transcript.)

* * * * *

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Case 2:17-cv-04540-DGC Document 449 Filed 10/22/20 Page 86 of 87
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C E R T I F I C A T E

I, PATRICIA LYONS, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion

of the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control, and to the best

of my ability.

DATED at Phoenix, Arizona, this 22nd day of October,

2020.

 s/ Patricia Lyons, RMR, CRR

Official Court Reporter 

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