Legally Speaking: Why was convicted murder Debra Milke set free?

People of Maricopa County, and Arizona, are asking “what the heck is going on here?”

In the past couple of weeks, we have had allegations and hearings in the State v. Jodi Arias trial about prosecutorial misconduct, a Phoenix police officer who shot and killed an unarmed man and the Court of Appeals ruling a convicted child killer could go free.

I will venture to say confidence in Arizona’s ability to seek and preserve justice is at an all-time low.

Let’s talk about the recent Debra Milke decision. Milke was convicted of first-degree murder in 1990 for the murder of her 4-year-old son. She was convicted by a jury, sentenced to death and served 22 years in custody. Her conviction was based largely on the testimony of a police officer, Detective Armando Saldate, who was found to be dishonest and was involved in several instances of misconduct.

After several appeals the 9th Circuit Court of Appeals issued a ruling on March 14, 2013 overturning her conviction and sent the case back to the trial court. It overturned her conviction based on the state’s Brady violation, meaning the state failed to turn over impeachment evidence.

Impeachment evidence is the stuff the attorney uses to show the witness isn’t truthful, credible or a good person. This can include a past criminal conviction, past bad behavior, physical disabilities or limitations, or past words — essentially anything that puts the witness in some kind of bad light.

In Milke, Arizona didn’t disclose the Saldate’s “various instances of misconduct, ranging from lying to internal affairs investigators and lying under oath, to violations of various defendants’ Fourth and Fifth Amendment rights.”

As you can see, this impeachment evidence is significant and important, so important that the failure to disclose this led to the appeals court overturning a murder conviction.

Once the 9th Circuit Court of Appeals ordered the case back to the trial court, the Maricopa County Attorney’s Office decided to go forward with a retrial, in other words, it decided to re-prosecute Milke for the murder.

At that point, her defense team filed a special action to the Arizona Court of Appeals, claiming it would be double jeopardy to allow the retrial. The Court of Appeals agreed and issued an order barring the retrial of Milke.

In a strongly-worded opinion, it reiterated what the 9th Circuit Court of Appeals had already found: The failure to disclose the exculpatory (impeachment) information amounted to prosecutorial misconduct to such a degree that the only remedy was dismissal.

Maricopa County Attorney Bill Montgomery responded to the Court of Appeals by stating his office will appeal this decision to the Arizona Supreme Court.

My initial reaction was that it would be a waste of time to do so. After all, if there are two appellate courts that both found “egregious” instances of prosecutorial misconduct, is there really a chance that another court will find something different?

Then I heard Montgomery’s comments on KTAR’s Bruce St. James and Pamela Hughes show. He explained that the 9th Circuit Court of Appeals got it wrong because it was relying on the wrong facts.

You see, part of the finding of prosecutorial misconduct was based on the fact the police department failed to turn over information in the lead detective’s personnel file about his dishonesty and character. What Montgomery explained is that the trial court ruled the police department didn’t have to turn over the information.

Essentially, the court approved the police department’s failure to turn over the information on Saldate. This begs the question — how can the appeal courts find fault with the prosecution if it was just following the trial court’s rulings?

These appellate decisions in this case really have to do with “technicalities.” There is not really a dispute as to the facts of the murder. The dispute centers around Milke’s alleged confession to Saldate.

I say alleged because Saldate said she confessed and Milke said she didn’t. There is no other evidence of a confession. Period. His word against hers.

The defense and the appellate courts believe the defense and thus the jury should have been told about Saldate’s misconduct, his lying and his overall questionable ethics. Had this been disclosed by the state, the jury could have decided Saldate was lying and found Milke innocent.

Claims of prosecutorial misconduct are often alleged but few gain traction or are found by courts to have merit. That is why it is incredibly significant when a court not only finds intentional prosecutorial misconduct but goes so far as to release a convicted murderer with the order that she cannot be retried. This case is even worse because it wasn’t only one court that found the prosecutorial misconduct, it was two.

What does all this mean?

Right now, it means Milke is free.

It means that two appellate courts have determined that regardless of whether Milke murdered her son, the actions of the prosecutor and the cops were so bad, so deplorable, so deceitful, that it is better for the greater good that a convicted murderer be set free.

It means there are serious repercussions for violations of the rules, even when it is the good guys that violate them.