Debra Milke, On Death Row since 1990, May Be Bailed Today Pending Retrial

In 1990, Arizona prosecutors convinced a Jury that Debra Milke had two men kill her four year old son in order to collect a $5000 life insurance policy. She has always maintained her innocence. The two others confessed but would not testify against her at trial. The only evidence connecting her to the killing is her own confession which, despite orders from a detective supervisor, was not recorded or witnessed by anyone other than the lead detective. Thought it was not told to the defense at the time. detective has a long history of lying to improve his cases. Milke denies confessing.

As reported by the Associated Press, bail had been set at $250,000 and it appears that supporters are willing to post it. The new trial was ordered in March of this year after the 9th Circuit granted Milke's Habeas Petition. They found that Arizona prosecutors violated Milke's rights by failing to turn over a personnel file on the lead detective, Armando Saldate. That would have shown that Saldate had been cited for multiple instances of misconduct, including cases where confessions or statements were thrown out because Saldate lied under oath or violated the suspect's rights.

From the summary of the 9th Circuit Opinion:

Petitioner Milke’s conviction was based largely on the testimony of Police Detective Saldate, who allegedly obtained her confession. The panel held that the state remained unconstitutionally silent instead of disclosing information about Det. Saldate’s history of misconduct and accompanying court orders and disciplinary action. The panel held that the state court’s failure to comply with Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), resulted in a decision by the state post-conviction court that was contrary to clearly established Supreme Court law, and that the state post-conviction court so misread the evidence documenting the state’s Brady violations that its decision was based on an unreasonable determination of the facts. As a result of these two failings, the panel could not accord deference to the state court’s decision under the AntiTerrorism and Effective Death Penalty Act.

I have noted before how hard it is to get Habeas relief under the AEDPA; the fact that she met that standard says something about the gravity of the prosecution's violations. As part of the 9th circuit opinion, the court included a 9 page appendix listing known instances of detective Saldate's misconduct. The court was not at all impressed with the detective himself or the lower courts that approved his conduct and denied prior attempts to overturn the conviction. As Judge Kozinski said in his concurrence:

Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?

Kozinski goes on to ask the fundamental question that should have given the trial and appellate courts pause long before the Habeas petition:

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. 

The prosecution intends to retry Milke. They plan to again offer Saldate's testimony about the confession and will seek the death penalty if Milke is convicted. A hearing on the defense motion to suppress Saldate's testimony is set for 9/23/13.