Scottsdale police failed to disclose viable exonerating DUI case evidence

Scottsdale police stopped a man on Jan. 13, 2019, and charged him with driving under the influence, although documents show his lab results would later come back negative.

He told police he had taken Percocet, a painkiller, according to a filing in Scottsdale City Court provided by the city.

The man did not obtain an attorney and pleaded guilty to the lowest level of DUI on Feb. 12, 2019. He was sentenced to serve up to 10 days in jail, according to the court filing.

Two months later, on April 11, the state Department of Public Safety lab report analyzing his blood came back showing no traces of nine tested drugs,

the filing shows.

The situation highlights a problem that Shawn Fuller, fired Scottsdale city prosecutor, says he brought to light. The city failed to disclose lab results that were favorable to defendants in some DUI cases, according to a notice of claim he filed against the city three days after his termination.

Nine men are known to have pleaded guilty to DUI charges where evidence was not disclosed, court filings show. At least one of the convictions has since been set aside by a judge.

Under the Brady doctrine established in U.S. Supreme Court v. Maryland, prosecutors must turn over any evidence that might exonerate a defendant.

Fuller began looking into a rumor about evidence problems in DUI cases last fall, shortly after being hired in Scottsdale. A five-year audit of past DUI cases involving drugs, not alcohol, discovered the disclosure problems in the nine instances.

In each case, Fuller’s office filed pleadings with the city court to make the proper disclosures. In the January 2019 case, the filing says the city will ask police to retest the blood for Percocet and requests that the man be allowed to withdraw his guilty plea. The city said a public defender has been appointed to review his case.

His was one of two cases in which the City Prosecutor’s Office asked that the defendants be allowed to withdraw their guilty pleas.

The Republic first reported about the DUI evidence after Fuller’s firing and his notice of claim brought the situation to light last week. Fuller was fired Feb. 7 because of what the city said were problems with his conduct and management style. In the notice of claim, often a precursor to a lawsuit, filed by his attorney Feb. 10, Fuller’s attorney said he was fired because he blew the whistle on a practice the City Attorney’s Office wanted to keep secret.

The city, in a statement on Wednesday, said it fixed the problem involving DUI lab results before Fuller was even hired in Scottsdale. The city, since February 2019, has not allowed defendants to plead guilty before lab results are received, according to the city’s statement.

“Although the city strives for perfection, (Fuller’s) audit revealed a system that is working very well and only needed a slight improvement in order to fully resolve all potential issues,” the city’s statement said, noting only nine problems were uncovered in a review of more than 1,000 cases.

“In those cases, the blood work should have still been sent out to the defendant post-conviction, but as a result of a clerical/procedural error it was not,” the city’s statement said.

Despite the city’s error, the statement notes that the defendants voluntarily pleaded guilty before seeing their blood work results.

Details of the DUI cases

Scottsdale City Court judges, after seeing the court filings from Fuller’s office, sent letters to the State Bar of Arizona in November about the failure to disclose lab reports.

The Republic has so far been unable to reach the nine individuals.

The court filings show all of the defendants pleaded guilty to “DUI impaired to the slightest degree,” for which drivers can be charged even if their blood alcohol level is lower than the legal limit, or if influenced by any drug.

In most cases, the court filings indicate they accepted plea deals that dismissed other charges against them, which included alleged violations such as speeding, drag racing, driving on a suspended license and weaving between lanes.

It was the first DUI offense for most of the defendants. Six of the nine were not represented by an attorney.

Brett Donaldson, a criminal defense attorney in Phoenix, said the defendants’ legal recourse hinges on whether the exculpatory, or favorable, evidence was purposefully hidden. In other words, if the city had the lab results and didn’t share them.

In most of the cases, the potentially exonerating lab reports were not completed until after the defendants had pleaded guilty, from a couple of days to 21⁄2 months after the pleading.

In two cases, the lab results are dated before the defendant pleaded. However, the prosecutor office’s electronic files do not show the office ever received the results, according to the court filings.

If lab results are unavailable, a defendant can ask the court to continue the hearing until the evidence is obtained or seek to dismiss the case, Donaldson said.

Donaldson said he never would advise a client to plead guilty to a DUI without an accurate lab result.

If city prosecutors knew exculpatory evidence was available, the prosecutor had an ethical obligation to produce that evidence to the defendant, Donaldson said.

But if evidence was simply unavailable due to circumstances such as a backlog in processing lab results, Donaldson said it would be hard for defendants to prove the evidence was withheld from them.

“For whatever reason, (they) decided at the time, ‘I’ll enter the plea agreement,’” Donaldson said. “That’s a conscious choice. It’s a decision that the defendant makes.”

Fuller’s audit and subsequent court disclosures prompted movement in the nine cases.

The defendants and their attorneys, if they had one, were notified about the motions the Prosecutor’s Office filed, city spokeswoman Holly Walter said.

A public defender was asked to look into each case, but it is up to the public defender to reach out to the defendants and explain to them what the next steps might be, she said.

Walter couldn’t immediately clarify where every case stands, although she said at least one defendant now seeks to withdraw his plea.

In another case, a city judge voluntarily overturned the conviction within two weeks of Fuller’s disclosure to the court last fall.

Conviction overturned

That case involved a then-20-year-old man whom Scottsdale police pulled over on Sept. 13, 2018, court documents show.

The man, without an attorney, pleaded guilty less than a month later on Oct. 9. Similar to the plea agreements in all nine cases, the man was convicted of “DUI impaired to the slightest degree.”

Fuller’s audit a year later discovered the lab results were completed Nov. 2, two days after his case was closed. The subsequent court filing to disclose the results indicates the man’s blood sample showed an inactive marijuana metabolite — one that is insufficient for a DUI conviction .

The court filing requests that the man be allowed to withdraw his plea. “The court may allow a defendant to withdraw a plea of guilty or no contest if it is necessary to correct a manifest injustice,” the filing made on Oct. 18, 2019, says.

Less than two weeks later, City Court Judge Joseph Olcavage voluntarily set aside the man’s DUI conviction and dismissed the case, according to his court docket. However, by that time, the city had pursued a more serious charge against the man.

In August 2019, 10 months after the man had pleaded guilty in City Court on the DUI charge, the city referred a felony marijuana possession charge against him to Maricopa County Superior Court.

In October, in the same month the city court judge was dismissing the misdemeanor DUI charge against the man, a Superior Court judge was sentencing him to marijuana possession stemming from the same 2018 traffic stop. The felony possession charge was dropped to a misdemeanor.

City spokesman Kelly Corsette on Thursday said he could not immediately explain why the possession charge was referred to Superior Court nearly a year later.

The city, in a written statement to The Republic, said not to “incorrectly

presume that (the defendant) was exonerated by the laboratory test result.”

The city’s statement notes the police officer “smelled the odor of Marijuana coming from the car ... as he followed behind it.”

The man was glassy eyed and told the officer he had smoked marijuana earlier in the day and had gone to the skate park “to sweat it out,” according to the city.

The impact of a DUI

The progressive nature of DUI sentencing means that defendants who pleaded guilty and then go on to receive another DUI are positioned for harsher sentencing.

Most of the defendants were first-time offenders, and served at least one night in jail and paid more than $1,500 in fees, according to details of the plea agreements sent to the state Bar.

Two were second-time offenders and served at least 30 days in jail and paid more than $3,500 in fees, according to the plea agreements.

While the existence of the lab reports alone did not necessarily call into question most of the defendants’ DUI convictions, “to the extent there is a potential impact on the defendant’s conviction, the State has an obligation to report this newly discovered evidence,” the pleadings from Fuller’s office read.

In each of the filings, Fuller asked the court to review the impact of the new evidence on each defendant’s conviction. For two of them, the September 2018 and January 2019 drivers, prosecutors asked that they be allowed to withdraw from their guilty plea.

Situation under investigation?

The state Bar responded to the judges’ letters by informing the city on Dec. 10 that it was investigating, according to the claim notice.

The state Bar, which investigates complaints of attorney misconduct, confirmed this week it had received a Bar charge related to the allegations, but would not provide additional information because of confidentiality rules.

The city prosecutor during this time was Caren Close, who resigned in March amid complaints that she created a hostile work environment. Close reported to longtime City Attorney Bruce Washburn, who retired in June.

The Bar must investigate any allegations of misconduct that, if determined to be true, might be grounds for discipline, according to Bar spokesman Joe Hengemuehler.

A charge does not mean the case ultimately won’t be dismissed after an investigation, he said. The Bar only investigates individual lawyers, not firms or governments, according to Hengemuehler.

The city prosecutor reports to the city attorney, who is a direct hire of the City Council in Scottsdale.