Fault Lines
21 June 2017

The Phoenix Freeway Shooter & The Prejudice of Dismissal Without Prejudice

Apr. 27, 2016 (Mimesis Law) — On Monday, a Maricopa County judge signed off on the dismissal of charges against Leslie Allen Merritt, Jr., who had spent months in jail on allegations that he was the gunman in the Phoenix Freeway Shootings that occurred along Interstate 10 between August 27th and September 10, 2015.

Monday’s ruling was a formality of sorts, capping off a ripple of bombshells delivered last week.

First, it was revealed in court that a state-funded expert had called into question ballistics evidence that had served as the lynchpin in the state’s case against Merritt.

Maricopa County Superior Court Judge Warren Granville subsequently lowered Merritt’s bond to zero from $150,000, allowing Merritt to walk out of jail hours later.

Then just before the close of business Friday, prosecutors moved to drop the case without prejudice, setting the stage for Granville’s decision Monday.

Dismissals without prejudice are fairly common occurrences in the criminal justice world.  A dismissal with prejudice bars the prosecution from ever filing charges against the same defendant for the same crime in the future.  Prosecutors generally aren’t too keen on closing the door completely to further prosecution, especially if an unsolved crime hangs in the balance.

That reluctance to shut down the possibility of future prosecution is stronger on high profile cases like the “Phoenix Freeway Shootings.” Merritt’s arrest on September 18, 2015 had even led Arizona Governor Doug Ducey to excitedly tweet “We got him!”   With no other possible suspects named in the crimes, letting go of the one named suspect must have been a bitter pill to swallow.  Perhaps that was why prosecutors felt the need to take a parting shot at Mr. Merritt.

“Dismissing the charges without prejudice will provide us with the time needed in order to prepare the case for a possible refiling of charges,” [Maricopa County Attorney’s Office spokesman Jerry Cobb] said Friday.

So, according to Cobb, the prosecution just needs a little more time before they can get back on track with their prosecution of Merritt.  The seven months he already spent in jail awaiting charges wasn’t quite sufficient.

It is understandable that the Maricopa County Attorney’s Office would want to leave open the possibility of filing charges against Merritt.  As noted in U.S. News and World Report:

The shootings sparked so much fear in the Phoenix area that people avoided driving the freeways, school buses took different routes, and signs were posted telling people to be careful.

The head of the Arizona Department of Public Safety said the shootings were the work of a domestic terrorist, and authorities heightened patrols and surveillance in pursuit of a suspect.

Nothing is more embarrassing to law enforcement than admitting that you might have arrested the wrong “domestic terrorist.”  However, parting comments against a defendant whom you just dropped charges against might be considered chickenshit in some circles.  Of course, in the Court of Public Opinion, there are no rules of proper procedure, as the late Richard Jewell once learned the hard way.

Although the Maricopa County Attorney’s Office was quite open about pointing out that there would now be more time for a “possible refilling of charges” against Mr. Merritt, they seem to be at a loss for words when it comes to explaining the dismissal itself.

A judge has barred several documents in the case from public release, including a filing that led to Merritt leaving jail.  Those documents remain under seal.

Perhaps that is for a good reason.  Maybe those documents contain some sort of information in them that could tip off another suspect.  It would be surprising if Merritt’s attorneys were unaware of the contents of those sealed documents.  If the documents in question merely illustrate errors or missteps in the case against Mr. Merritt, one would wonder what the motivation would be to seal them from the public.

Then again, maybe it has something to do with the impending lawsuit that Merritt seems to be preparing to file against Maricopa County and Arizona.

He filed a legal claim – a precursor to a lawsuit – a month ago demanding $10 million from the state and county.  Merritt alleged that authorities rushed to judgment and failed to provide evidence that he was present at any of the shootings.

It is entirely within the realm of possibility that the case against Leslie Merritt might improve over time.  It certainly can happen under some circumstances.  However, more often than not, those cases that are dismissed without prejudice are completely over for all intents and purposes.  Barring some unforeseen witness coming forward or other unknown evidence coming to light, most dismissed cases stay dismissed.  To paraphrase what a semi-wise man once told me about reattempting a failed enterprise, “that’s kind of like putting spoiled milk back in the refrigerator and thinking that it will be better later.”

Any time a criminal case is dismissed, there will be somebody somewhere who doubts the wisdom of that dismissal.  Whether it be the victim of the crime, the angry police officer who made the arrest, or the voting public, dismissals just generally don’t sit well with most people.

Amusingly, Daniel Scarpinato, spokesperson for the Internet friendly Governor Ducey, had this to say about the dismissals:

This is in the hands of the criminal justice system, where it belongs.

Wait, you mean, the criminal justice system is more qualified to handle this case than Twitter?  What happened to the “We” in “We got him!” Governor Ducey?

Unlike politicians, prosecutors should recognize that the criminal justice system is supposed to rise above the popularity or unpopularity of decisions.  Making comments that insinuate that an accused person is factually guilty, despite having charges against him dismissed, undercuts the credibility of the system in more ways than one.  Not only does it contradict the presumption of innocence, it accuses the system of not working for all of those law-abiding voters.  That’s exactly what Jerry Cobb did when he made his statement on behalf of his office.

Asked whether the dismissal signals that authorities don’t have a viable case against Merritt, Cobb said, “The dismissal speaks for itself.”

Yes.  Yes, it does.

And in the end, that was the only thing you really needed to say, Mr. Cobb.

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