The lawyer for Debra Milke, whose 1990 murder conviction was overturned earlier this year by the Ninth Circuit Court of Appeals, is asking the court to disqualify Maricopa County Attorney Bill Montgomery's office from being the prosecuting agency in the case.
On the eve of an August 1, hearing on whether or not Milke will be granted bail pending her new trial, her attorney Michael Kimerer filed a motion, arguing that MCAO prosecutors have a conflict of interest, "created by their own misconduct in this case, and the significant political, public and financial interest they have in the outcome of this case."
Kimerer accuses Montgomery of choosing to "embrace" and "validate" the tainted testimony of lying ex-Phoenix Police Detective Armando Saldate, whose account of Milke's unrecorded, undocumented, so-called confession is the only direct "evidence" against Milke in the murder of her four year-old son Christopher.
The Ninth Circuit threw out Milke's conviction because Saldate's long record of deceit in other cases was not disclosed in full to the defense during Milke's trial.
For 50 years, the Supreme Court has held that any exculpatory evidence -- also known as "Brady material" -- must be revealed to defense counsel.
Milke's original attorneys could have used Saldate's record of mendacity and abuse of authority to impeach the cop's testimony. And impeaching Saldate's testimony in that way could have meant Milke's acquittal.
Kimerer notes that the MCAO as an agency is directly implicated in Saldate's misdeeds:
"The 60-page Ninth Circuit Opinion is not only a scathing indictment of a lawless cop who misbehaved again and again, but also of the Maricopa County Attorney‟s Office whose prosecutors breached their duty to disclose known, favorable impeachment evidence, and deliberately withheld evidence of other cases where Saldate had either lied under oath or engaged in other forms of blatantly unconstitutional misconduct.
"The Court detailed the specific cases involving not only blatant Miranda violations by Saldate, but also violations under the Fifth and/or Tenth Amendments in the course of his interrogations. Those cases all involved the Maricopa County Attorney's Office and the Phoenix Police Department - the very same agencies involved in re-prosecuting Debra Milke today."
Further on, Kimerer declares the obvious: that the MCAO could be sued for its behavior in the Milke case, and trying to obtain a conviction on retrial is therefore in its interest, leading the MCAO not to "do justice," as is its duty, but to mitigate its liability.
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The motion further states:
"The Maricopa County Attorney's Office has a significant interest in litigating this case and trying to obtain another capital conviction against Ms. Milke. It is an interest not in obtaining justice, but in trying to 'redeem' and protect itself from further potential consequences relating to its own conduct in this case. The Opinion demonstrates that the Ninth Circuit is obviously very concerned with the actions of the Maricopa County Attorney's Office in Ms. Milke's case (and in other cases involving Saldate).
"Based upon the Court's findings, together with the possibility of federal investigations, and a likely civil lawsuit, the Maricopa County Attorney‟s Office faces significant penalties, civil liability, and an investigation by the United States Attorney‟s Office and/or Department of Justice Civil Rights Division. The decisions and actions of the current County Attorney and his prosecutors simply cannot be separated from the already wrongful conduct of the original County Attorney and his prosecutors, and their conflict should be imputed to the entire Maricopa County Attorney‟s Office."
Asked for a comment, MCAO spokesman Jerry Cobb would only say that the county attorney will be filing a response to the motion soon.