On the evening of October 30, 2011, 23-year-old Brandon Lewis was charged with assaulting three police officers in Payson, Arizona after the officers said he violently resisted their efforts to administer a breathalyzer test.
The officers initially responded to the apartment complex where Lewis lived after Lewis struck a retaining wall in the complex parking lot with his truck. The truck became lodged in the wall, and as Lewis and a friend were removing the vehicle, the officers arrived. They suspected Lewis had been drinking, and asked him to take a breathalzyer test.
Lewis would later say that he verbally objected to submitting to the test, and was viciously attacked. The officers, Justin Deaton, Lorenzo Ortiz and Jesse Davies, said Lewis physically resisted, and they merely used force necessary to subdue Lewis.
There was no dispute that Lewis was slammed to the ground and punched in the face. Lewis claimed that Ortiz then picked up the 135-pound Lewis, grabbed him by the hair on the back of his head and repeatedly slammed Lewis’s face into the hood of a police vehicle. Ortiz, on the other hand, reported that an out-of-control Lewis repeatedly slammed his own face into the vehicle.
Lewis was taken to the Payson Police Department lockup where he spent the night. He was taken for medical treatment the following day and was treated for a fractured eye socket, a torn ear lobe, and bruises and abrasions to his arms and knees.
Lewis was charged with three counts of felony assault of the officers and one count of resisting arrest. He was also charged with felony damage to property for causing more than $1,000 in damage to the hood of the police vehicle, and a misdemeanor count of criminal damage to the retaining wall.
In July 2012, Lewis, who was free on bond, filed a civil wrongful arrest lawsuit in Gila County Superior Court against the Payson Police Department and the officers. The lawsuit was transferred to federal court at the request of the lawyers for the Payson Police Department. At the time, prosecutors had offered Lewis a deal to plead guilty to lesser charges, but when the lawsuit was filed, the offer was rescinded.
Lewis went to trial in Gila County Superior Court in April 2013. The officers testified that Lewis, who had prior alcohol-related convictions, became belligerent when they asked him to submit to an alcohol breath test and that they were required to use force.
The officers testified that Lewis banged his head on the hood of the police car on his own, leaving a dent the size of a salad bowl. A test of blood drawn from Lewis after he was arrested showed a blood-alcohol level of .147, well over the legal limit, as well as the presence of marijuana.
Lewis’s defense lawyer had a copy of “an excessive force report” written by Ortiz that contained statements about what happened at the scene that night. (Such statements are required by the department whenever a suspect sustained injuries during an arrest.) The excessive force report was inconsistent with Ortiz’s trial testimony. It suggested that Lewis might not have physically resisted as strongly as Ortiz, who had a background in martial arts, had testified.
Payson Police Sgt. Donny Garvin testified that the repair cost to the vehicle was $1,200, which exceeded the $1,000 threshold for the charge to become a felony.
Lewis denied that he physically resisted and described how he was forced to the ground where he was punched repeatedly. He testified that Ortiz pulled him up and smashed his face into the hood of the police car. He said that although the officers kept accusing him of fighting them, he told them over and over that he was not.
On May 8, 2013, after an eight-day trial, the jury convicted Lewis of assaulting Deaton and Davies and acquitted him of assaulting Ortiz. He was also convicted of resisting arrest and both counts of criminal damage to property.
During the pre-sentence investigation, the Gila County Probation Office requested a formal invoice for the cost of the repair to the police car. At that time the defense learned that the bill was for $719.04, which the repair shop wrote down to $700. A bill under $1,000 would have reduced the charge to a misdemeanor.
Sentencing, which had been set for June 3, 2013, was postponed to allow the defense to investigate further. At about that same time, Lewis’s attorneys received police reports from the lawyers for the police department handling the civil lawsuit.
The documents included excessive force reports written by Ortiz’s fellow officers, Deaton and Davies. Those reports had not been turned over to his criminal attorneys, or used at his criminal trial. On August 8, 2013, Lewis was sentenced to probation.
Shortly thereafter, Lewis’s lawyers filed a motion to vacate the convictions and for a new trial, arguing that because prosecution had withheld evidence Lewis received a constitutionally unfair trial.
The withheld evidence – including the newly disclosed reports from Deaton and Davies that contradicted their trial testimony at the criminal trial – suggested that Lewis’s version of the melee was more accurate. The reports also described witnesses to the incident whose names were not disclosed to the defense prior to the criminal trial.
Lewis’s lawyers also discovered that Garvin, the officer who testified about the repair cost, was on the Gila County prosecution’s list of officers whose credibility was questionable because of prior incidents of failing to disclose evidence favorable to the defense.
In December 2013, Gila County Superior Court Judge Peter Cahill vacated the convictions and ordered a new trial. “It is an injustice that so many legally relevant documents were not properly disclosed prior to trial. The failure of due process here is clear,” Cahill declared.
When the case came up for trial in March 2014, the defense filed a motion asking that the charges be dismissed entirely because of the egregious misconduct by the prosecutors, Joy Riddle and Marc Stanley. The prosecutors contended that they did not know the documents existed prior to trial because the police department had failed to disclose them. Lewis’s attorneys argued that a retrial would violation the double jeopardy clause of the U.S. Constitution.
On May 27, 2014, Judge Cahill granted the motion and dismissed the charges. “Double jeopardy protection is aimed at exactly the type of abuses shown to have occurred here,” the judge ruled.
Cahill noted that the prosecutors had offered a plea deal to Lewis prior to his trial, but withdrew it after he filed his civil lawsuit. In June 2014, the lawsuit was still pending in U.S. District Court.
In the scathing decision, Cahill held that the prosecution had employed the criminal justice system in an attempt to leverage a favor outcome of the civil lawsuit. The judge said there was only “one plausible explanation” for the withdrawal of the offer – that the prosecution’s strategy was “designed to shield the Payson Police Department from civil liability.”
“The state’s conduct was not the result of legal error, mere negligence, mistake, or insignificant impropriety,” Cahill declared. “Instead, it amounts to intentional conduct which prosecutors and police knew was improper and prejudicial, a pattern of indifference to their obligation to obtain and disclose evidence.”
– Maurice Possley