Twenty years ago this December, a child's apparent disappearance from the busy Metrocenter mall followed by the grisly discovery of his body in the desert north of Phoenix gripped the community.
The 4-year-old was Christopher Milke. He had been shot three times in the back of his head from close range. The boy's chewing gum still was clenched between his teeth when an unemployed west Phoenix man, Roger Mark Scott, led Phoenix police to his body on December 3, 1989.
A jury later convicted Scott of first-degree murder and other charges, and a judge ordered him to death row, where he quietly has been incarcerated for almost two decades.
But on June 2, the Ninth Circuit Court of Appeals granted part of Scott's long-standing appeal, this one filed by attorneys Jon Sands, Michael Burke, and Jennifer Garcia of the federal Public Defender's Office in Phoenix.
By a unanimous 3-0 vote, the panel ordered the U.S. District Court to hold an evidentiary hearing to consider whether the efforts of Scott's trial attorney, Roland Steinle (now a Maricopa County Superior Court judge), were so weak as to have "resulted in prejudice" against the convicted killer.
"The details of the facts supporting the underlying conviction, horrible as they are, are not important for purposes of this appeal," the court wrote in its 21-page ruling. "Scott does not contest his convictions; he contests only his sentence."
Scott, who was 42 at the time of Christopher's murder, confessed to the cops after a grueling interrogation that a buddy of his, James Styers, had promised him $250 to assist in the plot to kill the little boy.
Before Scott finally confessed, he and Styers stuck to an improbable story that they were babysitting Christopher on the afternoon in question and had stopped at Metrocenter in an impromptu outing to "see Santa Claus."
The boy supposedly vanished inside the mall while Styers was in the restroom. It was a frightening, but false, story that led to a frantic search by Phoenix police and a kind of pre-Amber Alert to a concerned community.
The fraudulent going-to-see-Santa line later became a centerpiece of the separate death-penalty cases against Scott, Styers, and Christopher's mother, Deborah Milke.
Scott later claimed that the young single Phoenix mom told him shortly before the murder that "she just had to get away from Chris, and she just wasn't cut out to be a mother, and that she wanted us [Styers and Scott] to take care of it."
By "take care of it," Scott said, Debbie Milke meant that she wanted her son dead.
Milke, he said, had been the mastermind of Christopher's murder, with her motive being that his constant presence was interfering with her work ambitions (she was in the insurance field) and social life (in particular with one boyfriend who supposedly didn't want to take on a stepfather's role).
Milke also had a $5,000 insurance policy in effect on her only child's life. Prosecutors alleged that she had used that money as bait to first lure her roommate, Styers, and, later, Roger Scott into the evil plot.
According to Scott, he, Styers, and the little boy drove out to the desert together in Debbie Milke's car on the afternoon of December 2, 1989, ostensibly to hunt for snake holes. The boy ran ahead of the men down a desert wash near Happy Valley Road, Scott later told detectives.
It was then, according to Scott, that Jim Styers fired the bullets into the back of Christopher's head. The child died instantly.
The men left Christopher's body curled in the fetal position and then drove back into town and tried to pull off the ruse at Metrocenter.
Deputy County Attorney Noel Levy subsequently offered Scott a plea bargain. The prosecutor promised the confessed co-conspirator that he would recommend a 21-year prison sentence on a reduced second-degree murder charge in return for testimony during the separate trials of Styers and Milke.
But Scott and his attorney declined the deal, and the prosecutor instead took him to trial after winning convictions against the two main players — the mastermind and the shooter.
Scott was convicted in short order.
The recent Ninth Circuit opinion focuses on what it terms the failure of defense attorney Steinle to present possibly compelling mitigating evidence at sentencing.
That evidence, the panel wrote, included "four traumatic head injuries Scott had suffered, a brain scan showing Scott's brain had atrophied, evidence Scott suffered from seizures, as well as evidence of the plea bargain offer, which Scott wanted to accept but Steinle rejected."
The panel noted in its June 2 opinion that Steinle had used Roger Scott's claim of "brain shrinkage" as grounds for requesting a court-ordered evaluation before trial.
"There is no evidence, however, Steinle independently investigated these claims to present them as mitigating evidence in the penalty phase of the trial," the judges wrote.
They also noted that Scott was a severe alcoholic, drinking two fifths of whiskey daily, "which may also have contributed to cognitive problems."
These days, Steinle is a well-respected judge who has presided over several high-profile trials, including the recent death-penalty case of Dale Hausner, one of the so-called "Serial Shooters" who terrorized the Valley a few years ago.
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).
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.
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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.