Roger Scott watched the press conference in a windowless 8-by-12 cell in the maximum-security wing of Arizona State Prison-Eyman on a clear, plastic television specially designed to prevent inmates from hiding contraband amid its internal wires. Frail at 67, with hollow cheeks and a perpetually trembling right arm, he sat sideways on the cement shelf he's called a bed for the past 24 years, propped up by a pile of folded, neon-orange prison uniforms.
On the flat-screen, balanced on a small metal stool bolted to the floor, Debra Milke nervously straightened her glasses with newly manicured fingers. "Okay," she said, her voice small and mousey, fussing with the lectern's microphone and showing off a diamond ring. "All right."
The news cameras flashed, illuminating the lines in her skin and her neatly styled silver hair. She cleared her throat softly. "I, I had absolutely nothing to do with the brutal murder of my son, Christopher," she said. The boy's name snagged a bit on the way out. Her wide, brown eyes filled with tears.
Scott's current lawyers had tried to prepare him for this possibility: that the woman he said entangled him in a 1989 plot to kill her 4-year-old son — a plot that sent the two of them and another man to death row — would walk free. Still, seeing Milke on television looking fragile, damaged, and innocent in her cardigan and pearls shocked him.
His thoughts roiled. She's guilty! She's guilty!
Smiling through tears, Milke described memories of Christopher throwing his little arms around her neck and whispering, "I love you, Mommy." He liked to sit on her lap, she said, and pop her bubblegum, crumpling into fits of giggles when it stuck to her nose and begging her to "blow another one, Mommy!"
How did she get out of it? She's guilty!
"Losing a child to murder is a devastating tragedy," Milke said. Her lawyer, seated next to her, reached out and patted her on the back. "The only thing equally worse," she continued, trembling, "is to be falsely accused of participating in your own child's death."
Scott felt sick.
This is a fucked-up legal system, he thought.
In the early 1990s, three juries concluded without reasonable doubt that Milke planned Christopher's murder, her roommate, Jim Styers, shot him, and Scott acted as a lookout guy. As the three fought for their lives through 24 years of appeals, however, the narrative became muddied.
With the help of a top-notch legal team, thousands of hours of research, and hundreds of thousands of dollars, Milke's conviction was overturned and, in March, the Arizona Supreme Court, citing "disturbing" police work, blocked the state from pursuing a retrial. Media reports widely labeled her a victim, claiming the only evidence linking Milke to her son's murder was the word of a corrupt cop.
Many in the legal community balked at the assertion.
"Not true. Not true. Not true. Not true," said attorney Rachel Yosha, who briefly represented Scott on appeal. (She dropped her soda when she first heard the claim. Glass shattered everywhere.) "We have evidence. We have Roger Scott and Jim Styers and the boxes and boxes and boxes of work that's been done on their cases, all of which rely on the theory that Debra Milke was involved."
But even if Milke is innocent, as her lawyer, Michael Kimerer, argues, he agreed that in a just world, the court would not carry on as if the three cases did not affect one another. Both Styers' and Scott's cases were investigated by the same disgraced detective who jumbled Milke's case and were likely tainted to some degree, he said. "If we're going to be executing people," he said, "we should be a little bit more certain about who's really responsible and why."
In reality, Styers' and Scott's fates were sealed the moment the court appointed lawyers to handle their appeals. As death penalty cases march through the court system, moving from state level to federal, it becomes more and more difficult to add information to the record until, as Judge Alex Kozinski of the U.S. Ninth Circuit Court of Appeals recently stated, it is as difficult to reverse errors "as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession."
The system has been particularly unkind to Scott. His state-appointed trial and appeals lawyers didn't even bother to look into evidence that Scott, whose IQ is just four points above "mentally defective," has significant brain damage.
Styers, meanwhile, is poised to have his sentence reduced to life in prison because of a U.S. Supreme Court ruling challenging the way Arizona determined death-sentence eligibility during the 1990s. Scott, too, could have benefited from the loophole — had his lawyers brought it up.
"At every stage of these proceedings, Mr. Scott was the least culpable person involved in this crime," said Jennifer Garcia, the U.S. public defender handling Scott's federal appeal. "Now it's looking increasingly likely that he may end up being the only person to pay for it with his life."
(The following narrative was compiled from court records and interviews with attorneys, friends of the convicted, and Scott, who corresponded from prison through letters, e-mails, and his lawyers.)
Roger Scott was an accidental child. By the time he arrived on June 4, 1948, his parents, Clifford and Wilma, already were overwhelmed caring for his intellectually disabled brother, Dennis.
Wilma was a pretty blonde. Clifford was a drunk who beat her and the two boys. When they fought — which was often — Dennis put his hands over his ears and hummed to block out the noise. Roger ran outside their Nebraska home and hid. Sometimes, he would stay out all day, drinking from a hose, relieving himself in the bushes, festering over how his parents didn't want him.
Clifford left when Roger was 5. Wilma took a job working nights at a drugstore, and Scott's grandmother moved in to help out. When Roger was 11, the family moved to Arizona in search of better social services for Dennis and better air for Roger, who had developed bad asthma.
"You're the man of the house now," Scott recalled Wilma telling him. "You have to be strong and not cry."
There was no spare money so meals were simple. As a treat, Roger's grandmother cranked open a can of stewed tomatoes, sliced up an onion, shook in some salt and pepper, and called it "tomato surprise." They didn't have a telephone, so they had to walk to a gas station to make calls. The only time they celebrated birthdays or Christmas was when Roger's great aunt, a traveling saleswoman, whirred through town hawking expensive furs and jewelry.
"Without her, we wouldn't have had a damn thing," he recalled.
She bought the family a television, took Roger to the circus, and gave him his most prized possession: a bicycle. A neighbor boy taught him to find his balance on two wheels because there was no one else to do it. For a long time, the only way he knew how to stop was to skid, tumbling to the pavement.
At 13, a car traveling more than 40 miles per hour plowed him over while he was out riding. For three days, Roger teetered on the edge of death. It was the first of four traumatic brain injuries that eventually would lead to what doctors called "unusual" atrophy. Later, he'd start having violent seizures.
Scott always had been a solidly average student, but after the accident, his grades plummeted. He started fighting middle school bullies who, perched on a fence near his home, taunted brother Dennis for his slurred speech. By freshman year, he was ditching most of his classes. He started getting blackout drunk as a sophomore and dropped out of school during his junior year.
He skipped from job to job — assembling lawn mowers, selling car parts, fixing bicycles, working as a bellhop — never staying anywhere more than 18 months. Police picked him up a few times for disorderly conduct. He did 60 days in jail for siphoning a gallon of gasoline from a parked car and was fined $100 for misdemeanor public sexual indecency after he was caught fooling around with another man at an adult bookstore. He got married and divorced. Then, at 29, he threw out his back lugging furniture as an apartment complex maintenance man.
He moved in with his mother, who was scraping by on food stamps and Social Security checks. There, he spent his days tending to her medical needs, watching reruns, and downing whiskey — sometimes as much as two fifths a day.
Jim Styers and Scott stumbled into each other at a Phoenix boat and RV show in mid-1989.
It had been five years since Scott had seen his old high school buddy. They'd run together off and on for two decades, going to discos, drinking, and chasing women, but they had fallen out of touch when Styers married.
As the two wandered through pop-up campers and motor homes, Styers filled in Scott on his life (he'd had a child and divorced his wife) and suggested they meet up. Soon, they were getting together several times a week.
"I was always somebody nobody wanted around," Scott said. "With Styers and me, it was just two losers hanging out."
Sometimes, little Christopher Milke would come along.
Debra Milke was in love with a co-worker from the insurance agency where she worked as a secretary, but Styers was entranced by her flirty charisma and Farrah Fawcett-style feathered chestnut hair. Milke took full advantage of his crush.
Styers chauffeured Milke back and forth to work and watched Christopher while she was out. He called her "honey" and "dear," Milke's friends and family told authorities, and attended to her comfort, saying things like, "If you are chilly, I will get your jacket." He'd do "whatever it took" to keep Milke happy.
When Styers wasn't watching Christopher, Milke frequently left the little boy with relatives. Her sister, Sandy Pickenpaugh, testified in court that she watched the boy for days, weeks, and months at a time. Milke, an impatient mother who yelled a lot, rarely visited.
Christopher was high-strung, hyperactive, and always into everything. He wore out two Big Wheels because he liked to pedal hard and spin out.
"He was hard for Debra to manage," Pickenpaugh testified. "She often found herself scared because he would stress her to the point where she would feel violent."
Although Christopher's doctors and daycare providers recorded no signs of abuse, a roommate observed her throw the boy into a wall at least once. On another occasion, a neighbor called police after Christopher twice wandered into her home unattended.
Milke told her friends she worried about how the boy affected her dating life, sometimes fantasizing, a witness testified at trial, about how things would change if Christopher were dead.
That summer, when things started heating up with her co-worker, Ernie Sweat, Milke went to Pickenpaugh, desperate.
Sweat was in love with her, she told her sister. Sweat wanted to marry her. But he didn't want to be an instant father.
Would she consider taking care of Christopher full-time for a few years so Milke could focus on bringing Ernie around?
In the fall, after Pickenpaugh had refused and Sweat had stopped taking her phone calls, Milke told her father and stepmother that she was considering giving full custody to her ex-husband, against whom she had a restraining order.
"Christopher was in the way," Pickenpaugh said.
Styers and Milke broached the topic of murder casually, Scott said. They had discussed it, they told him one afternoon in late November 1989, and the kid had to go. Milke just wasn't cut out to be a mother, Scott recalled her saying, and she needed him and Styers to take care of it.
Milke had a $5,000 life insurance policy on the boy. They offered Scott $250 to drive Styers and the boy out into the desert. Styers and Milke would split the rest.
Styers bought a .22-caliber R&G handgun with a post-dated check.
Then, on the morning of December 3, Milke dressed Christopher in his favorite faux-lizard cowboy boots and a dinosaur sweatshirt and kissed him goodbye: "See you later, alligator!" she chirped. Styers borrowed Milke's white, four-door Toyota Corona, packed in Christopher, the gun, and an extra pair of shoes, and picked up Scott.
Roger needed to fetch medicine for his mother so they stopped by a couple of drugstores. Then, the three headed to a Peter Piper Pizza and ordered a medium pie with no onions. Scott had Sprite. Styers and Christopher had Coke.
After lunch, Scott drove the three to a desert wash near 99th Avenue and Happy Valley Road, and Styers and Christopher got out.
Scott heard three gunshots.
Christopher wasn't with Styers when he got back into the car.
"Well, that's done," Scott remembered him saying. "Let's get out of here."
While Scott drove, Styers changed out of his black Nikes and emptied spent shells out the window one at a time. When they arrived at Metrocenter Mall, he stuffed the gun in Scott's belt, gave him the shoes, and told him to "get rid of them."
Then he contacted Milke and mall security to report that Christopher had wandered off on the way to see Santa Claus.
Officers and store employees fanned out over the complex, searching for the little boy.
In the parking lot, reporters in skinny ties and blousy dresses swarmed Styers, microphones outstretched, pens poised over notebooks. Styers, in a maroon sports jersey with his name embroidered on the breast, had his hands shoved in the pockets of his loose, light-wash jeans. His eyes were vacant and tired. When he spoke, his lips, thin and tight, barely moved.
"We walked into Sears," he said to the cameras. "Went into the restroom here. When I came out of the stall in the restroom, Christopher was gone. And that was it."
Milke called her father, hysterical.
Richard Sadeik, who worked as a corrections officer at the state prison in Florence, immediately dispatched his wife, daughter, and a couple of friends to meet Milke at Metrocenter for a search.
But she wanted to stay home.
She kept the phone in her lap as police came and went. Each time it rang, witnesses said, her first question was the same: "Where is Jim? Why isn't he home?"
At the mall, police asked Styers to retrace his steps, starting in the Sears bathroom.
Which stall did he go into? Styers pointed and the detective peered inside.
"There's no seat on this toilet," he said, according to court records.
Did Styers hear anyone come into the bathroom? Did he hear Christopher go out?
"No," Styers said.
The detective tried to exit the bathroom.
"Why, a child couldn't pull this door," he said. "It's, it's jammed here, wedged."
After Christopher had been missing a few hours, Milke headed to her father's house. She knew Christopher was dead, she told Sadeik. Could they sprinkle his ashes in the backyard? Her father wrapped her in his arms, got her a beer and a sandwich, and ushered her to the dining room.
As she ate, she worried aloud. Investigators had been questioning Styers "an awful long time," she said. Why were they still questioning him?
"I really don't know," Sadeik said.
He fetched her the phone, and she dialed Styers' number from memory. It took a few tries to get through. When he picked up, he was at the apartment with a police escort. He was stripping off his clothes so they could be bagged as evidence. It was routine, police told Styers. But he was nervous.
"Hang in there," Sadeik recalled Debra saying. "Don't let them harass you. Don't admit anything."
By midnight, police had determined that Scott had accompanied Styers and Christopher to Peter Piper Pizza earlier in the day. At 2 a.m., Scott volunteered to go with Detective Robert Mills to the police station to answer questions. He lied until 3:30 p.m.
Then, Detective Armando Saldate took over the interview. It was his day off, but the homicide sergeant in charge called him in to take a crack at Scott.
Saldate, a dark, husky man with a moon face and a caterpillar mustache, had a reputation for taking a "frontal assault" approach to interrogation, according to court filings. His history with the Phoenix Police Department was riddled with questionable dealings, including multiple accusations of lying under oath and violating suspects' Fourth and Fifth Amendment rights. On one occasion, after pulling over a female motorist for a missing taillight, he solicited sex in exchange for overlooking an outstanding warrant for her arrest. After she reported him, he denied the exchange until he failed a lie-detector test.
More than 10 hours after he had arrived at the police station, Saldate read Scott his Miranda rights. Then, he got in his face. He knew Scott had something to do with Christopher's disappearance, he'd later tell the court: "I was going to make sure that whatever [Scott] told me was going to jibe with the facts."
Scott, who hadn't slept, eaten, or taken his seizure medication for nearly two days, started spilling after Saldate threatened to send a team of officers to interrogate his elderly mother. Scott was convinced that the stress would kill her.
Mills brought Scott a cheeseburger and turned on a tape recorder.
Scott fidgeted nervously, knocking his fingers against the table.
"I didn't think Jim would go through with it, but he did," Scott said. "I was driving the car. I heard the gun go off three times. I picked up [Styers], went back to Metrocenter, and that's when he contacted the security, saying that Christopher was lost."
Rap, rap, rap went his fingers.
"You can't . . . Let me just tell you," Mills interrupted him. "You can't tap the table, okay? Because it drives the typist crazy when they have to type it, okay? Because alls they hear is the tapping. You can hit yourself or . . . tap your arm on yourself, okay?"
"Okay," Scott said.
"Okay," Mills said. "Let's go through this in a little more detail."
The confession was garbled and discombobulated. Scott reiterated multiple times that he did not believe Styers was going to go through with killing the child. But, then, in response to heavy-handed leading from the officers, he seemed to contradict himself, agreeing with the suggestion that he had bartered with Milke to raise his payment from $150 to $250 and helped Styers scout a good location for the murder.
When the detectives were out of questions, Scott led police to the desert wash where Christopher lay in the fetal position, chewing gum clenched between his tiny teeth.
"I feel better now that I've told the story," he told the officers. "I do know the consequences, but still I do feel better."
Prosecutor Noel Levy offered Scott a plea deal. If he would testify against Styers and Milke in court, the state would reduce his charge from first-degree murder to second, which carried a maximum penalty of 20 years behind bars.
Scott's lawyer, Roland Steinle, advised him to sign. But he refused.
It wasn't that Scott didn't want to testify against Milke (though her lawyers later would point to his decision as a signal of her innocence). From the moment he confessed, Scott adamantly maintained that Milke was the driving force behind the plot to kill Christopher. The problem was, Scott recalled, he couldn't bring himself to plead guilty to murder.
He did not understand, his lawyers said, the concept of accomplice liability, the legal theory he was charged under, which states that a person can be culpable for a crime committed by another if he aided or abetted in some way.
The thought of "having a record for killing a 4-year-old boy wasn't any good," Scott said for this article. "I'm innocent!"
Frustrated with Scott's seeming unwillingness to listen to reason, Steinle ordered a mental-health expert to evaluate whether he was competent to stand trial. However, even though Scott had advised him of his prior head injuries and a CT scan that showed evidence of brain shrinkage, Steinle did not give the information to the evaluating psychologist or hire a neurologist to assess his cognitive limitations.
Had he done so, he may have discovered, as did Dr. Thomas Hyde, a neurologist who later examined Scott, that his brain's frontal lobe was significantly damaged. Though his IQ was too high to designate him as intellectually disabled, which would have precluded him under a U.S. Supreme Court Decision from receiving the death penalty, Hyde found significant deficiencies in his reasoning, judgment, and problem solving. Scott, like many with poor frontal-lobe functioning, tended to behave impulsively and make poor decisions without properly weighing consequences. Under high levels of stress, his defense mechanisms crumbled, and his symptoms heightened.
"If Steinle had understood why he was having trouble conversing with Roger about the plea and had taken steps to deal with it, this case would have absolutely turned out differently," said Dale Baich, who heads Phoenix's Federal Capital Habeas Unit, which represents death row inmates. "I think it would have been resolved with a plea agreement and Roger would have been out of prison several years ago."
Milke was the first to be convicted.
With Scott out of the picture, Armando Saldate's testimony was the headline grabber. The detective didn't have her on tape, but he swore under oath that Milke had broken down during interrogation and confessed to arranging her son's death.
"She decided it would be best for Christopher to die," he said.
Milke, cold and emotionless, vehemently refuted his account.
In the end, jury members said it was Milke's family and friends' testimony about her efforts to get rid of Christopher that sealed her fate.
Styers was next.
His defense team tried to pin everything on Scott, claiming Scott shot Christopher and forced Styers at gunpoint to report the boy missing. But those who knew Scott testified that he was far too dull to devise and execute such a plot. Forensic experts connected Styers' black Nikes to footprints in the dust near Christopher's body. An analysis of the two men's feet confirmed it was Styers who wore the shoes.
When Scott's turn came in early 1991, Steinle argued that Scott, who had been diagnosed with several mental issues, including obsessive-compulsive and passive-aggressive personality disorders, was Styers' unwitting "dupe."
A psychologist testified that Scott was the kind of person who "puts on a compliant, conforming front and goes along with other people's demands, expectations, requests."
If he was not Scott's only friend, Styers was one of few people with whom he had forged a long-lasting relationship and had taken on the role of an authority figure in his life, the psychologist said. Struggling with low self-esteem, Scott would have been "extremely loath to do anything that might provoke [someone like Styers] to reject or abandon him."
Steinle didn't want Scott to seem rehearsed so he put him on the stand (wearing the same button-down plaid shirt he was arrested in) without going over questions beforehand, Scott said to New Times. The plan was to tell the truth and don't look down. Steinle would roam the room to remind Scott, who had an off-putting, awkward air about him, to engage with the court.
Under oath, Scott insisted that though he was aware of the plot to kill Christopher, he did not accept the $250 that Milke and Styers offered him and did not know that Styers intended to shoot Christopher that day. When Styers asked him to pull over, Scott said Styers told him he needed to relieve himself. Christopher hopped out, too.
But the story contradicted his taped confession. When Scott tried to argue that these statements had been given under duress, he came off as shifty and unreliable.
"You've fabricated this story here today in your testimony, haven't you?" prosecutor Noel Levy asked.
"No, I haven't."
"What you told Detective Mills, you told him very calmly, slowly, and methodically, correct?"
"I tried to tell him to the best of my ability," Scott said. "I was very tired. I was trying to tell him everything that happened . . ."
Levy interrupted: "And . . ."
"During the whole thing and cramming it all on one tape," Scott continued. "He said he only had one tape. "
"And you did, didn't you?" Levy pressed.
Scott conceded: "I did make the tape."
When the judge sentenced him to death, Scott thought of his mother and tried to "be strong and take it like a man," he recalled.
But, once out of sight, his poker face crumbled. He shook so violently that those escorting him to prison said he needed assistance to unbutton his shirt, unzip his jeans, and change into an orange prison uniform — the likes of which it appears he will wear for the rest of his life.
On their respective death rows, Milke's and Scott's lives settled into similar patterns.
Between 4:30 and 6:30 a.m., the guards delivered soggy sacks containing breakfast and lunch. Dinner came between 4:30 and 6:30 p.m. They spent their days watching television and writing letters. Milke liked The Young and the Restless. Scott liked NASCAR and NCIS. They brushed their teeth with three-inch brushes and wrote with flexible pens — both specially designed to discourage inmates from making shivs. They left their cells only a few times a week to shower and exercise. Milke did squats and sit-ups. Scott's health deteriorated to the point that he needed a wheelchair to get around. About 10 p.m., guards turned out the lights.
In the court of appeals, their fortunes diverged sharply.
With the help of her mother, Renata Janka, a German national who divorced Milke's father when she was young, Milke started collecting thousands of supporters abroad. A website proclaiming her innocence, plastered with pretty pictures of her, was launched. The president of a Swiss town where Janka lived set up a bank account to collect donations for Milke's defense and, according to the German magazine Spiegel, raised roughly $213,000. Janka sold her house to contribute to the effort.
Milke used the money to hire appeals attorney Anders Rosenquist, who quickly discovered the state had failed to hand over Detective Saldate's personnel record during the 1990 trial. He then headed to Arizona State University, recruited 10 law students, and sent them digging through county Superior Court records to examine every case Saldate worked from 1982 to 1990. They spent 7,000 hours searching and found 18 instances of misconduct, ranging from ignoring suspects' repeated requests for lawyers to, in one case, securing a confession from a suspect, hospitalized with a head wound, while he drifted in and out of consciousness.
Armed with the character-damning material, Rosenquist wrote a 67-page petition with 106 exhibits, arguing that Saldate's record discredited his account of Milke's confession.
When the appeal was denied, Milke turned to Michael Kimerer, a high-powered Phoenix attorney best known for helping to overturn the conviction of Ernesto Miranda, leading the U.S. Supreme Court in 1966 to establish the familiar rule that criminal suspects must be informed of their rights before police interrogations. Eventually, Kimerer led her to a win.
Meanwhile, Scott's mother, Wilma, died. Then, a month later, his brother was killed in a van accident while on an outing with his group home. Dennis Scott's girlfriend also was killed so her family offered to pay for his burial. There was no money to properly lay Wilma to rest. Her body was buried in an unmarked grave in a potter's field.
Scott, who had not spoken to Styers or Milke since the day of the murder, did not have a friend in the world — not even, he said, his court-appointed lawyer.
When appealing a capital case, the American Bar Association stipulates that attorneys interview the client and the lawyers who previously represented him — at the very least. Best practice dictates that the appeals lawyer conducts a full investigation of the case relating to not only his guilt but also to any personality, health, or circumstantial issues that might help explain how he came to commit the crime and justify leniency.
Although Scott, too, may have benefited from the information about Saldate's dirty history, his attorney, Neal Bassett, did not conduct research aside from reading Scott's case file, according to court records. He did not speak with Steinle, interview witnesses, or seek evidence that had been overlooked. He did not read Milke's or Styers' trial records or contact their lawyers.
Bassett, who declined to speak with New Times, visited Scott only once, Scott said. He called and sent updates through the mail so infrequently that a desperate Scott started scrawling misspelled letters to the judge.
"I have had to ask you what was going on in my case," he wrote in one. "Mr. Bassett won't answer letter's. Mr. Bassett wont send copys of court proceedings. Mr. Bassett has shown a hatered since i met him and wants no corospondence at all with me."
After going more than five months without hearing from Bassett, Scott wrote to the judge in October 1995. He wanted Bassett "FIRED" and asked for help finding a new lawyer "that will do his job."
The court disregarded the letters.
When it came time to file the appeal, Bassett submitted a three-page petition raising only one argument: The victim's father, Mark "Arizona" Milke, did not believe Scott should be executed but had not been permitted to testify on his behalf before sentencing. The fact section was two sentences long. The legal analysis, which was less than two pages, cited only one case and one statute.
The state's response to Bassett's argument, by comparison, was 17 pages long.
Once a hearing was granted, Bassett didn't call any witnesses because, he told the judge, he was "real satisfied with the state of the record as it exists right now."
By June 1996, Scott was so distressed that he decided to give up on the appeals process altogether. In his child-like scrawl, he asked the court to execute him, saying his lawyer had driven him to "want to die."
To Bassett he begged: "Please do not force me to suffer any longer by representing me. I've made my decision to let the suffering END, thank you."
Throughout the ordeal, the nonprofit Arizona Capital Representation Project kept abreast of Scott's case. Statia Peakheart, a staff attorney with the project, said she contacted Bassett several times to offer help with the investigation, even going so far as to mail him preliminary research. But, she said, he was unresponsive.
Scott's case was among the most neglected Peakheart had ever seen, she said.
"If he was culpable, he was certainly the least culpable," she said. "There was strong mitigation that could have been presented by trial counsel, and no one did it. No one cared to do it. No one even tried to do it. They didn't do their jobs, and it makes me angry."
When Bassett withdrew, the project persuaded Scott not to give up the fight and recruited Rachel Yosha to step in. "We've got a lawyer doing a drive-by job," they told her.
Yosha, a commercial lawyer with the Phoenix-based firm Squire Sanders & Dempsey, was reluctant. The last time she took on a pro bono case for the Arizona Capital Representation Project, she became friends with the death row inmate she represented.
"It was just too emotionally exhausting," she said. "It's like being on the verge of war every day. You work and work, and all the time the clock is ticking, ticking, ticking. And then your client dies."
She trekked down to the prison to meet Scott. She wanted to look him in the eye before she told him yes or no.
She didn't like Scott. "He's greasy-looking, he talks weird, he might be a little racist," she said. But in the end, this was exactly why she decided to try to help him.
"He's not charming like Debra Milke. He doesn't really know what's going on," she said. "He's going to be the fall guy, and nobody else cares."
Bassett's appeal already had been rejected so Yosha scrambled to convince the judge that she be allowed to redo it. She added 23 potential arguments for relief. Her request was denied, but because she had raised the issues on the record, assistant federal public defender Jennifer Garcia, who took over the case in 2005, was able to persuade the court to allow her to investigate.
Unfortunately, by that time, it was too late.
Many of the medical records Garcia needed had been destroyed, she said. Family members, former teachers, and doctors who might have helped shed light on Scott's cognitive functioning were dead.
She hired a slew of medical experts to assess him, including a neurologist and a psychoneurologist. Everyone agreed that Scott was severely damaged, and several testified that it was "highly likely" that he had these impairments at the time of the crime.
Because no one looked into it sooner, however, it was impossible to determine that his condition simply hadn't deteriorated during his many years of incarceration.
When the appeal was denied, Garcia wasn't exactly surprised.
"This is habeas corpus, after all," she said, noting that only 0.4 percent of death-penalty cases are overturned in federal court. But she sees the loss as a huge injustice.
"I don't begrudge Debra Milke the relief she got. I absolutely believe that serious constitutional violations took place in her case, as well," she said. "Still, it is certainly hard to see my client, whom the state always has seen as less culpable, remain on death row."
Now, the only thing keeping Scott alive is a judicial review of the drugs Arizona uses for lethal injection, which were called into question last year after it took a gasping inmate an hour and a half to die.
Scott, who has bitterly concluded that most lawyers are "useless," is resigned to his fate. After so many years on death row, he's gotten used to the routine. Wake up. Eat soggy food. Watch TV. Wait for the execution order.
"I just want to live here however long I can," he said.
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