This is a tale of a woman who was on death row for more than 20 years after being convicted for conspiring in the murder of her four year old son. It was a sensational and horrific crime that garnered the outraged publicity that so often happens in murder cases. The outrage and presumption of guilt is often fostered by police and prosecutorial spokesman leaking “evidence” and accusations to the media. The media loving the ratings boost this type of story provides rarely questions the statements and the leaks of the law enforcement establishment.  The public almost overwhelmingly views this law enforcement establishment as having no agenda save for the truth. The reality of the criminal justice system is much more unsavory, as I’ve discussed in America’s Broken Criminal Justice System.

Debra Jean Milke , a 26 year old mother was arrested for the murder of her 4 year old son in 1989 and convicted of First Degree Murder in 1990. The prosecutor’s case was based on an undocumented confession that was made by her to a police officer; an alleged accomplice that refused to testify against her;  angry charges from her estranged husband; and finally a motive based around a $5,000 insurance policy. She was sentenced to death and was on “Death Row” for 22 years, until released on appeal in 2013. Having the case against her dismissed,  she was still not totally in the clear because the local prosecutor talked of appealing the ruling of a 3 judge panel to Arizona’s State Supreme Court. What follows is in my perspective an indictment of the criminal justice system in the county where the trial was held and how I think cases such as this are indicative of American Justice.

 

Maricopa County, Arizona is the fourth most populous county in the United States. When I was young and the retirement boom hadn’t yet hit Arizona, the State was famous for the cartoon character Krazy Kat which portrayed it as a desolate desert and for its rich and handsome Conservative Senator Barry Goldwater.  As Arizona began to attract a huge amount of American citizens relocating for its weather, the central City of Phoenix grew into the 6th most populous city in our country. Today though, to many people who like myself are interested in Civil Liberties, Maricopa County is most famous for its long time Sheriff Joe Arpaio. Sheriff Arpaio has become infamous for his harshness, brutality, corruption and ability to convince voters to re-elect him 6 times.  The law and order environment of Maricopa County is a harsh one,  as Arpaio’s continuance in office despite his numerous scandals in criminal justice shows. In this case he wasn’t involved because it happened two years before he was first elected, but it illustrates the long time mindset of Maricopa’s voters.

The prosecutor’s theory as it was released to the media went like this: “Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in December 1989. He was then taken into the desert near Phoenix by two men and shot in the back of the head.

Prosecutors claimed Milke’s motive was that she didn’t want the child anymore and didn’t want him to live with his father.

She was convicted in 1990 and sentenced to death. The case rested largely on her purported confession to Phoenix police Detective Armando Saldate, which he did not record.” here

Mrs. Milke, purportedly confessed her complicity to murdering her son to Detective Soldate. Her confession was not recorded, nor was there a transcript of it. The only proof of it was a police report filled out by Soldate and his testimony at her original trial. There were also no witnesses to the purported confession. There is credible evidence that Saldate had  committed misconduct in previous cases, including lying under oath and violating suspects’ rights. This was an observation leading to the overturning of Milke’s conviction by the 9th US Circuit Court of Appeals (transcript PDF at link).  Detective Saldate, now a Maricopa County Constable, has invoked his 5th Amendment right not to testify at the Court of Appeals, nor in any future retrial of Milke. So we see a case where the main evidence against the defendant was a purported confession, that no one but the police officer heard and which the defendant denied.

The supposed murder motive was that Milke had taken out a $5,000 insurance policy on her son some weeks before the murder. This was considered a valid motive even though the policy was one that came with the benefit package she was given at her new job, rather than something she had individually applied for.

The Facts of this Case From Wikipedia as linked above:

In August 1989, Debra Milke and her son Christopher Milke moved into an apartment with Jim Styers, a man she knew through her sister. On December 2, 1989, Styers took 4-year-old Christopher to the Metrocenter mall in Phoenix, Arizona. That afternoon he called Milke, who was doing laundry at the apartment, and told her that the boy had disappeared from the mall. Styers alerted mall security, while Milke dialed 911. A missing person investigation was launched.

The next day Phoenix police arrested Roger Scott, a long-time friend of Styers. After more than fourteen hours of interrogation, Scott admitted that he knew where Christopher was and that the boy was dead. He directed the police to a desert area north of Phoenix, where Christopher’s body was discovered. Christopher had been shot three times in the head. Scott claimed that Styers had committed the murder and that Milke had “wanted it done.”

Styers, who had helped in the initial search for Christopher, was arrested and interviewed by police after being implicated by Scott. Milke voluntarily went to the Pinal County sheriff’s office, where she waited in a jail dispensary. Other Phoenix police detectives were told via radio not to speak to Debra. When the lead case detective, Armando Saldate, arrived with a helicopter, he sent her accompanying acquaintance out of the room, and started the interrogation behind the closed door. He had neither set up a tape recorder, nor was any other witness present.

Three days later he penned a narrative report that indicated Milke had instigated the murder of her son Christopher. Milke allegedly told Saldate that she wanted her son dead. The confession was not tape-recorded, signed by her, or witnessed by anyone. Milke was charged with conspiracy to commit first degree murder, kidnapping, child abuse, and first-degree murder. In October 1990, she was convicted of all charges and sentenced to death. Styers and Scott were charged and tried separately. Both were convicted of first degree murder and were sentenced to death.

Appeals

In December 2007, the American Civil Liberties Union of Arizona filed an amicus brief in support of Milke, who by then had been on death row for 18 years. The brief raised questions “regarding the admissibility of uncorroborated and unrecorded confessions” by Milke.

In September 2009, the 9th Circuit Court of Appeals found that there was “no evidence” that Milke had “voluntarily” waived her right to remain silent and ordered federal court judge Robert Broomfield to decide if the case merited a new trial. At the subsequent evidentiary hearing, Broomfield disagreed with the appeal court’s opinion and found that Milke had validly waived her Miranda rights.”

The testimony of police officers in criminal cases is assumed to be unbiased evidence by many Americans and certainly by the news media. In this case it seems that Det. Saldate’s testimony of Milke’s confession was the main reason for her original conviction. Certainly the 9th Circuit Appeals Court’s overturning of Milke’s conviction in 2013 was based on that fact:

“On March 14, 2013, the U.S. Court of Appeals for the Ninth Circuit threw out Milke’s conviction, ruling that Milke did not receive a fair trial.[1] It held that Milke’s rights had been violated by the failure to turn over Saldate’s personnel file to the defense. That file included multiple instances of misconduct, including eight cases where confessions, indictments or convictions were thrown out because Saldate either lied under oath or violated the suspects’ rights during interrogations. The court ruled that because “the prosecution did not disclose [the arresting detective] Saldate’s history of misconduct,” Arizona had violated its obligation to turn over exculpatory evidence to the defense.[2] In their opinion the Circuit Court

Milke’s alleged confession, as reported by [Pinal County Sheriff’s Detective] Saldate, was the only direct evidence linking Milke to the crime. But the confession was only as good as Saldate’s word, as he’s the only one who claims to have heard Milke confess and there’s no recording, written statement, or any other evidence that Milke confessed. Saldate’s credibility was crucial to the state’s case against Milke. It’s hard to imagine anything more relevant to the jury’s—or the judge’s—determination whether to believe Saldate than evidence that Saldate lied under oath and trampled the constitutional rights of suspects in discharging his official duties. If even a single juror had found Saldate untrustworthy based on the documentation that he habitually lied under oath or that he took advantage of women he had in his power, there would have been at least a hung jury. Likewise, if this evidence had been disclosed, it may well have led the judge to order a new trial, enter judgment notwithstanding the verdict or, at least, impose a sentence less than death. The prosecution did its best to impugn Milke’s credibility. It wasn’t entitled, at the same time, to hide the evidence that undermined Saldate’s credibility.(p. 42) The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents.(p. 42)“

After the Court’s ruling in 2013 Milke was released on bail pending the prosecutor’s decision to re-try her on the original charges. In an appendix the court noted that the prosecution had withheld evidence of Saldate’s past dereliction’s:

“The Appendix contains summaries of some of Saldate’s misconduct and the accompanying court orders and disciplinary action. This history 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. And it is far from clear that this reflects a full account of Saldate’s misconduct as a police officer.”

Now from CBS News :

“In a scathing critique of Arizona’s criminal justice system, a state appeals court on Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.

The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke’s trial about a detective with a long history of misconduct and lying. The court called prosecutors’ actions “a severe stain on the Arizona justice system.”

A three-judge panel of the appeals court said it agreed with Milke’s argument that a retrial would amount to double jeopardy.

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke,” the court wrote. “In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.”

The court said the charges against Milke in the 1989 death of her son Christopher can’t be refiled, but prosecutors could appeal Thursday’s ruling to the state Supreme Court.”

This type of a ruling is generally a rarity in the appeals process in America today. The Supreme Court and various State courts have moved to reduce the amount of conviction appeals allowed to defendants and in general a more conservative court system tends to favor the prosecutions cause. A prominent Arizona defense attorney was quoted on this ruling:

“Generally, when there is prosecutorial misconduct and (prosecutors) withhold favorable information, the Court of Appeals will say, ‘You guys are bad boys, but it doesn’t rise to the level of egregious misconduct,’” criminal defense attorney Mike Black, who was not affiliated with the case, told CBS affiliate KPHO in Phoenix. “These types of cases come down once in a blue moon. I could probably count on one hand the number of cases that have been reversed with this type of behavior in Arizona.”

When it comes to the American Criminal Justice System, whether in Federal or State Courts, it is a system that is rigged against most defendants. A large part of the reason that the American Criminal Justice System will continue to be unfair is that many in this country play a game of “pretend” and denial in viewing criminal justice. We have been inculcated into a nation of knee-jerk proponents of “Law and Order” made afraid of crime through our leaders use of demagoguery and fear to get elected. We are a nation scared of much, including crime, even though by all measures crime rates (with the exception of drug cases) have drastically declined. In the public’s propaganda generated fear, they have allowed criminal justice to be handled by many who have little regard for the Constitution, or the public. However, this is not to exculpate the public from blame, since I suspect that there is within many a bloodthirsty need for and satisfaction with vengeance. I don’t know if Ms. Milke was ultimately guilty in what happened to her son, but I do know that there was not enough evidence against her beyond a reasonable doubt to sentence her to death .

Afterward:  Using the search function at ElephantTail,  or typing in “mikespindell’ at JonathanTurley.org. will show, criminal justice, the Law and civil Rights are interests about which I’m quite passionate and dominate my writing such as it is.  Admittedly though I’m not a lawyer and while in my career have had some dealings with criminal justice, I’m not an expert. One of the resources I use to keep current on Criminal Justice is the Wrongful Convictions Blog, which is run by lawyers who do wonderful work in trying to right the wrongs of our broken criminal justice system.  I’m a subscriber and so I get frequent updates from them. Recently I received this article in my inbox and it sums up much of my feeling about criminal justice in these United States.  This is incidentally by an engineer who has devoted the last 8 years of his life working to exonerate the wrongly convicted. While I’ve merely written of my discontent, this man has actually gotten of his ass and worked hard at changing the criminal justice system one case at a time.

Comment on the Nature and State of the (US) Justice System

He begins:

“While writing the latest post about Jack McCullough‘s exoneration, and while reading Courtney Bisbee‘s latest filing with the US District Court for Arizona, I got to reflecting on my experiences with the justice system over the past eight years, and I thought I would share some of my (unvarnished) observations. Clearly, this will be very editorial. It will probably help to understand my comments to know that I am not an attorney. I am an engineer by training, and that’s what I did for my entire working career – until I started doing innocence work pro bono. So I see the justice system with the naivete’ of someone who is an “outsider” and is not a functionary of the system; but I do see the system as someone who has spent his entire life founded in objective truth and logic and fact. Again, this article will be editorial in nature, and represents my views and only my views. It will also be pretty bleak; however, I see no viable path to fixing the monster we’ve created over the course of multiple decades of politics and the frailties of human nature. This has been bottled up inside me for some time, and the cork has finally popped. And just for reference, my definition of the justice system includes the law, legislators, judges, prosecutors, defense attorneys, and the police.

The justice system is supposed to be about facts, logic, truth, and reason; and seeing that “justice” is done. But my observation has been that the justice system is largely revenge-based, and when people can use the justice system to satisfy the unfortunate, dismal human craving for revenge, they will. When people say “I want justice,” what they’re really saying is “I want revenge” – based upon their personal  (and largely biased) belief about what they have convinced themselves happened, regardless of the actual evidence. And once that craving for revenge has been “satisfied,” people will spare no effort or energy to preserve it; even though the person being punished turns out to be demonstrably innocent. I think it would be more accurate to call the system the “punishment system” or the “revenge system” rather than the “justice system.” It’s no secret that prosecutors will play to the emotions and biases of a jury, turning the courtroom into little more than “theater;” and they do it because … it works, sad to say.”

Please follow the link above for the rest of this great article, which lays out in detail what is wrong with American “Justice”.

 

398px-Seal_of_Maricopa_County,_Arizona.svg

 

 

http://www.cbsnews.com/news/no-second-murder-trial-for-arizona-woman-debra-jean-milke-held-22-years-in-sons-death/

http://en.wikipedia.org/wiki/Debra_Milke

http://www.murderpedia.org/female.M/m/milke-debra.htm

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