~ Maricopa County Attorney BILL MONTGOMERY 301 WEST JEFFERSON STREET, SUITE 8OO Pu (602) 506-1260 PHOENIX, ARIZONA 85003 DO (602) 506-4352 WWW. MARICOPACOUNTYATTORNEY.ORG Fax (602) 506-8102 March 26, 2018 Sylvia Moir, Chief of Police ‘Tempe Police Department 120 E. Fifth Street Tempe, AZ 85281 Dear Chief Moir, This letter memorializes the conversations we had on Wednesday, March 21. 2018, and provides guidance on any future submittal for a criminal charging review and prosecution for the related traffic fatality as a result of the unauthorized release of evidence. During two separate conversations on Wednesday, March 21, 2018, you, Bill Amato, and I discussed the release of dashcam video in the possession of the Tempe Police Department as part of an ongoing criminal investigation involving an Uber autonomous vehicle driver and a pedestrian. ‘The conclusion on the question of whether or not the video could be released, whether redacted or not, in each conversation ‘was no. In fact, the specific conclusion was that the video could not be released without jeopardizing the Due Process interests of the Suspect. We also discussed alternatives, including providing a verbal description of the contents and potentially redacting the video of measurement information. The agreed upon course of action was to provide a verbal description of what the video depicted as the next immediate step. Release of a video redacting measurement information at the bottom of the video was not an option because of the reality of what would still be depicted. I also explicitly offered to indemnify the ‘Tempe Police Department, as I have others, in the event of litigation over release of the video and pledged to send over a letter expressing that offer upon request. Decisions regarding the release of evidence in a pending criminal investigation begin with our mutual duty and obligation to protect the Due Process rights of an accused, as well as the rights of a victim of a crime to justice and due process under the Arizona Constitution's Crime Victims’ Bill of Rights. Accounting for the implication of statutes concerning the release of public records, which this evidence clearly falls within, is another ever present factor. Nonetheless, prosecutors must also take into account specific restrictions on the release of information under the Rules of Professional Conduct set forth at ERs 3.6 and 3.8. Rule 3.8 goes on to extend the prosecutor’s responsibility for limiting comment to also provide:[E]xcept for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under ER 3.6 or this Rule. ER3.8.f. Comment 5 of ER 3.8 further states: Paragraph (f) supplements ER 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with ER 3.6 (b) or (c).. ER 3.6 provides at the outset that “[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ER 3.6.a. Comments to ER 3.6 call out for special discussion the nature of eriminal proceedings and identify certain subjects, such as “the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented”, ER 3.6, Comment 5.2, that “are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration.” ER 3.6, Comment 5. The release of the dascheam video directly contravened our conversation and implicates, at a minimum, the prohibitions of ERs 3.6 and 3.8. Despite my best efforts as the Maricopa County Attomey in this situation, should this matter proceed to a criminal prosecution, Courts do not make distinctions among state actors when deciding how to address violations of a criminal defendant’s constitutional rights. In the most severe of instances, dismissal of cases with prejudice work to harm the very victims and community we jointly serve and whether the failure ‘was on the part of a prosecutor or police officer, the distinction ultimately makes litle difference. Nonetheless, | intend for the record to be perfectly clear should the issue arise. ‘Any submittal from the Tempe Police Department requesting a charging review for the referenced investigation must include a cover letter with your signature, acknowledging the direction provided to not release the video and the reason(s) why you still released it. This will make clear for any subsequent ethics review that I and my office did all that we could to fulfill our ethical and professional obligations. It will also make clear that the responsibility for any litigation involving 2the unauthorized release of evidence in a pending criminal investigation is that of the Tempe Police Department. My office would seek reimbursement for any and all associated costs. Finally, my office would also seek reimbursement for costs of any litigation surrounding efforts to change venue for any criminal prosecution and any increased costs associated with an actual change of venue. The desires of the public and media to view firsthand evidence of criminal conduct, particularly video evidence, will remain unabated. Equally so is our duty to protect the rights of the accused, any victim, and the integrity of a criminal investigation and prosecution. Our criminal justice system dese:ves no less t0 maintain our community's trust and confidence. Notice of the unauthorized release will be provided to counsel for the suspect and to any next of kin for the decedent. Sincerely, Bill Montgomery" Maricopa County Attorney ce: Mark Mitchell, Mayor of Tempe Judith R. Baumann, Tempe City Attorney