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Debra Jean Milke is free after spending 22 years on death row

(photo: Marcin Wichary/flickr)

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the facts:

On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother to let him go again. Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing.

Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate’s day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate’s “style,” as he described it, was “a little different” — he preferred a frontal assault. “I knew that I was going to be straightforward with [Scott], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts.”

Soon after Saldate’s appearance, Scott broke. He led the detectives to Christopher’s body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved.Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Milke had gone to stay with her father and step-family after she learned of Christopher’s disappearance.

In Florence, a deputy sheriff invited Milke to headquarters to wait for Saldate. Saldate found Milke waiting in a 15-by-15-foot room of the Pinal County jail. She hadn’t been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm’s length at most, and leaned in even closer. That’s when he told her that the police had found her son — dead.

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to try to make me feel for her, and I didn’t buy it. I didn’t buy it….”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she’d complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.”

With that, Saldate claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke — his drug and alcohol abuse and his arrests — recounted how she’d gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate’s opinion about whether her family would ever understand. (His view: No.)

By the end of the interview, Saldate had more than just cinched the case against Milke; he’d helped her emotionally. According to Saldate, Milke said she was “starting to feel better and was starting to get some of her self-esteem back.” Saldate also testified that Milke asked whether she would be released that night, and when he said she wouldn’t be, she asked whether the court could give her “probation for life” if “she could have her tubes tied and never have children again.”

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

Normally that would be the end of the matter. Right or wrong, a jury’s credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

The Appendix contains summaries of some of Saldate’s misconduct and the accompanying court orders and disciplinary action. This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this reflects a full account of Saldate’s misconduct as a police officer. See pp. 1010-11 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke, In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

– right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.

Creative Commons photo courtesy  of Marcin Wichary on Flickr

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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