Can't say I'm surprised that Maricopa County Attorney Bill Montgomery wants to retry Debra Milke, whose 1990 murder conviction was recently thrown out by the Ninth U.S. Circuit Court of Appeals.
After all, the Milke case stirs passions like only the killing of a child can. The state alleged Milke played desert Medea, plotting the murder of her four year-old son Christopher, with the assistance of two losers, one of whom executed the child with three bullets to the back of the head, leaving the body in a wash near Happy Valley Road and 99th Avenue.
Former New Times scribe Paul Rubin covered the crime and the trial in depth. I will not rehash the details, as he hashed them plenty at the time, and followed the case in the years thereafter.
Plus, all you need do is plug the name Debra Milke into your favorite search engine, and you're sure to be overwhelmed.
Many are convinced of her guilt, online and otherwise. No doubt some would would pay to poke her arm with poison.
Hard to imagine Monty, who like all prosecutors fancies himself as tougher on crime than Vlad the Impaler, not pandering to this virtual lynch mob.
But after reviewing the Ninth Circuit's damning decision in the case, which implicates both the county attorney's office and the Phoenix Police Department in the myriad sins of former Phoenix cop Armando Saldate, whose testimony put Milke on death row, I find the public's demand for retribution downright scary.
See, the Ninth concluded that the prosecution had withheld so-called "Brady material," which would have aided the defense's case, specifically the information that Saldate had, in the words of the court, "a lack of compunction about lying during the course of his official duties."
Saldate claimed that Milke waived her Miranda rights and confessed to him almost immediately upon interrogation, supposedly admitting that she wanted the kid offed because he was an inconvenience and reminded her of her ex.
The veteran homicide detective didn't tape record the conversation, though a superior had ordered him to do so. He did not have Milke repeat the confession for a tape recording, did not write up her confession and have her sign it.
He didn't have someone else present as a witness. Nor did he have a colleague monitor the interrogation via two-way mirror.
Oh, and he destroyed his notes of the interrogation.
Convenient, eh?Check it out, Monty's star witness against Milke
The Ninth's Chief Judge Alex Kozinski writes in his concurring opinion that, "In effect, Saldate turned the interrogation room into a black box, leaving us no objectively verifiable proof as to what happened inside."
Kozinski goes farther than his colleagues on the appellate panel, asserting that, "The `confession,' if it was obtained at all, was extracted illegally."
If up to him, he'd bar the use of it in any retrial, which would eviscerate the case against Milke, as Saldate's account of his conversation with the then 25 year-old secretary was the best the state had.
Does Monty possess some amazing new evidence against Milke?
Milke's attorney Michael Kimerer doesn't think so.
"There's just no evidence other than this confession, which is so tainted, this so-called confession Saldate said she made," Kimerer told me recently. "That's really the only direct evidence...There's nothing really new."
As first reported in the Arizona Republic, Kimerer says the prosecutor in the case has indicated that the state may put Saldate on the stand in a second trial.
If it does, Kimerer will have a field day.
"I could cross examine him [with] the Ninth Circuit opinion, what the court said there," he explained. "Plus we've got all the records."
Saldate's well-documented penchant for dishonesty is a "game-changer," according to the court, since the first trial essentially was a "swearing contest" between Saldate and Milke.
But because jurors didn't hear Saldate's "long history of lies and misconduct," they decided he was credible.
The Ninth relates that Saldate's bio 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."
In one case, Saldate interrogated an "incoherent" suspect suffering from a skull fracture, even though the man could not recall his name, the year, the president's name, etc.
In another, Saldate gave the third degree to a suspect who was drifting in and out of consciousness, while the suspect was hooked up to an IV. Saldate forbade a nurse from giving the man pain medication until he was finished talking to him.
Concerning the five day suspension, he supposedly got lewd with a female driver and offered to let her go without checking her warrant, in exchange for certain, um, favors.
The woman offered to hook up later for "an act of sexual intercourse," but didn't show. Saldate lied about the incident to superiors, up till the point he failed a polygraph test.
The Ninth Circuit concludes that the incident reveals "a misogynistic attitude toward female civilians and a willingness to abuse his authority to get what he wants."
Such behavior may have continued after Saldate resigned from the force.
Channel 12 recently dug up allegations related to Saldate's time as a constable. A woman claims she had sex with Saldate so he would give her more time on her eviction notice.
"The constable is in my bedroom with his pants around his ankles, laying on my bed, on his back," the woman told reporter Wendy Halloran, adding, "I proceeded to have sex with the constable."
So if Saldate is all Montgomery has, why would he proceed to trial?
"They're probably worried, and I would be too, about having a huge civil lawsuit," Kimerer said. "Maybe they think if they can get [Milke] to say she did something, that brings the lawsuit's value down."
According to Kimerer, Milke refuses to consider a deal with the county attorney for time served.
"She said, `I would rather face the death penalty than ever say I had anything to do with my son's death, because I simply did not,''' Kimerer recalled.
I wondered about a statement in one of Arizona Republic columnist Laurie Roberts' columns, that in Milke's purse at the time had been, "A box of bullets, the same kind used to kill Christopher."
Roberts implied that this meant Milke was obviously guilty, reporting that this had not come out in the first trial.
Kimerer says there was a box of bullets in Milke's purse, which did not enter the first trial, but did come up during the penalty phase. They were the same caliber as those used in the murder weapon, owned by Jim Styers, who was Milke's roommate at the time.
Why were they in her purse?
"Debra Milke, the day that this happened, was doing the wash in her house," he said. "And she found an unopened box of bullets in the jeans of Styers that she was washing."
Milke put the bullets in her purse to confront Styers with later, because she didn't like guns in the house, states Kimerer. The bullets were in her purse even as she was being grilled by Saldate.
Maybe it'll come up if there's a second trial, but would something like that outweigh Saldate's lying his keister off to judges and grand juries during the span of his career?
Whether or not Milke was part of a conspiracy to murder her own child may forever be a question mark. Saldate's trail of deceit seems to leave more than enough room for reasonable doubt.
So what's left? Kimerer speculated that the county attorney might try to do a deal with one of the killers, Scott or Styers, most likely Scott. Both men are on death row.
"They can't make a case without Saldate," said Kimerer. "I guess they can try do it with Scott."
What argues against this possibility, Kimerer suggests, is how bad it would look for Monty, doing a deal with a guy who was definitely involved in the murder, in order to get a conviction on Milke, who has steadfastly maintained her innocence.
But back to those who want to hang Milke high, regardless of Saldate's mendacious ways.
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I'd point them to this passage in Kozinski's concurring opinion:
"It's not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.
"Could the people of Arizona feel confident in taking Milke's life when the only thread on which her conviction hangs is the word of a policeman with a record of dishonesty and disrespect for the law? Bad cops, and those who tolerate them, put all of us in an untenable position."
Though I agree with the judge, the unsettling answer to his hypothetical question -- taking into account our very red state and its residents' unslakable thirst for revenge -- is undoubtedly, yes.