But the Ninth Circuit chided Steinle, writing that "at the very least" he should have ordered the hospital records of Scott's stays to present as potential mitigation to the sentencing judge (juries in potential death-penalty cases now impose sentence, not judges).

"Such an omission by Steinle is striking," the appellate court concluded.

In its final section, the judges ordered the local district court to consider whether attorney Steinle rendered "ineffective assistance of counsel," because he failed to challenge the voluntary nature of Roger Scott's confession to the police, because he failed to investigate and present mitigating evidence of the killer's "brain injuries," and because he failed to challenge the trial judge's finding that Scott had committed the murder for financial gain ($250 — which Scott never did collect).

Deborah Milke: On death row for the murder of her little boy.
John Gipe
Deborah Milke: On death row for the murder of her little boy.

For legal reasons, the Ninth Circuit did reject Scott's claim that Steinle had erred by not pushing the leniency recommendations of Christopher Milke's father before sentencing. Mark Milke suggested at the time that Scott should be spared a death sentence.

However, the judges took another dig at Steinle, writing that "we cannot perceive any strategic reason for Steinle's decision not to introduce any evidence that [Mark Milke] recommended Scott not be given the death penalty."

But the court agreed that it is not "reasonably probable" that Mark Milke's position would have changed Scott's sentence. Milke, by the way, was less charitable to his ex-wife and to James Styers.

Deborah Milke and James Styers remain on Arizona's death row.

Both continue to maintain their innocence, and Milke has been the subject of several documentaries here and in Europe (she was born to a German mother and an American father, the latter of whom testified against her at trial) about the tragic case.

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