Metropolitan News-Enterprise


Friday, March 15, 2013


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Ninth Circuit Throws Out Arizona Murder Conviction Panel Says Prosecutors Withheld Evidence That Detective Had History of Misconduct


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday threw out the convictions of an Arizona woman sentenced to death in the notorious 1989 killing of her 4-year-old son, ruling that the case was tainted by a detective with a history of lying under oath and other misconduct.

Even under the deferential standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996, Chief Judge Alex Kozinski wrote, the failure of the prosecutors to turn over evidence of repeated misconduct by then-Detective Armando Saldate Jr. of the Phoenix Police Department violated Debra Jean Milke’s right to a fair trial.

This was particularly true, Kozinski said, because “the trial was, essentially, a swearing contest” between the defendant and the detective. Saldate claimed that Milke had confessed; Milke denied it, and there was no tape or signed statement.

Prosecutors claimed the defendant dressed up her son Christopher in his favorite outfit and told him he was going to see Santa Claus at a mall during the holidays. Instead, he was taken into the desert by her boyfriend and another man and shot three times in the back of the head as part of what prosecutors said was a plot by Milke and the two other defendants to collect a $50,000 life insurance policy.

Milke would have been the first woman executed in Arizona since the 1930s had her appeals run out. The Arizona Supreme Court had gone so far to issue a death warrant for Milke in 1997, but the execution was delayed because she had yet to exhaust federal appeals.

Kozinski yesterday cited multiple court rulings in other cases that Saldate either lied under oath or violated suspects’ Miranda rights during interrogations. He also pointed to a 1973 incident in which the detective was suspended from soliciting sex from a motorist he had stopped and lying to his superiors about it.

Prosecutors, the chief judge said, “remained unconstitutionally silent” about Saldate’s conduct, violating the defendants’ rights to disclosure of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and to disclosure of evidence that would significantly impeach an adverse witness under Giglio v. United States, 405 U.S. 150 (1972).

Kozinski faulted Superior Court Judge Cheryl K. Hendrix, who tried the case and denied post-conviction relief, for minimizing the significance of the incidents once they were brought to light. Hendrix, he said, treated the incidents as if they involved mere allegations, failing to note that other judges had specifically found that Saldate committed misconduct.

“That Milke’s evidence contained court orders, rather than just ‘motions and testimony,’ is a significant, objective fact that the state court either misapprehended or ignored,” the chief judge wrote. “Either way, the court’s error resulted in an unreasonable determination of the facts,” entitling the defendant to habeas relief under AEDPA.

“No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty,” Kozinski wrote. He was joined by Senior Judge Jerome Farris and Judge Carlos Bea.

The court ordered that all of the detective’s personnel records be disclosed, subject to in camera review prior to disclosure of anything the state believes not to constitute Brady or Giglio material. The order requires that the completeness of the disclosure be sworn to by a responsible police official or determined by the court after an evidentiary hearing.

Once the material is produced and defense lawyers have time to review it, prosecutors will have 30 days to decide whether to retry the case, which is to occur within 90 days thereafter, otherwise the defendant is to be released.

The court also made the following order:

“The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents.”

Maricopa County prosecutors had yet to read the ruling and had no immediate comment on the decision, spokesman Jerry Cobb told The Associated Press.

Milke defense lawyer Michael Kimerer was in trial and not immediately available for comment.

In 2009, Kimerer said his client maintains her innocence and was a loving mother who still grieves her son’s death.

“Our main concern is the fact that I have a client that never confessed and a police detective who said she gave a confession,” Kimerer said then. “There was no tape recorder, no witnesses, nothing. Just his word.”

Milke, 48, is one of three women on death row in Arizona. All three are imprisoned at the state prison for women in Goodyear.

The two men convicted in the case, Roger Scott and former Milke roommate James Styers, are both on death row at a prison in Florence. Scott confessed during a police interrogation and led detectives to the boy’s body.

But neither Scott or Styers would testify against Milke.

The case is Milke v. Ryan, 07-99001.


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