Sunday, March 17, 2013

Case o' The Week: Not Milke-Toast - Milke and Brady / Giglio Violations

Hon. Chief Judge Alex Kozinski

"It's not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again."
  United States v. Milke, 2013 WL 979127, *24 (9th Cir. Mar. 14, 2013) (Kozinski, C.J., concurring), decision available here.

Players: Decision by C.J. Kozinski, joined by Judges Farris and Bea.

Debra Milke
Facts: Debra Milke’s male roommate, and a friend of the roommate, were to take Debra’s young son to see Santa. Id. at *1. Instead, the men took the boy to a ravine and fatally shot him. Id. The men confessed, and one implicated the mother, Debra. Id. 
  A veteran Phoenix Police Detective, Armando Saldate, interrogated Debra with no recording and no witness. Id. at *2. Saldate claimed Debra confessed after being Mirandized; Debra countered that she had asked for a lawyer, wasn’t given one, and that she never admitted involvement in the murder. Id. Despite defense subpoenas at trial, there was limited disclosure of Saldate’s (staggering) history of misconduct. Id. *3. 
  Milke was convicted, sentenced to death, and denied state and federal post-conviction relief. Id. at *4. In post-conviction proceedings, Milke discovered and asserted nine documented episodes of Saldate’s deceit or misconduct. Id. at *5 (and Opinion Appendix).

Issue(s): “[ ] Milke argued that her ‘right to a fair trial’ had been compromised by her inability to get access to impeachment evidence in Saldate's personnel file. She asserted that the ‘truthfulness and veracity’ of Saldate were ‘material’ to her case and that, under federal and state law, ‘the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial . . . ..’ Milke argued that she had been denied her constitutional right to cross examine Saldate because the state did not give her access to impeachment evidence in his file. She blamed the trial court for ‘refusing to permit the full impeachment of the interrogating officer.’ . . . [S]he also asserted that the trial court had ‘imped[ed] defense counsel's ability to impeach Saldate.’ The prosecution didn't make the requisite disclosures, and the trial court didn't order the prosecution to do so.” Id. at *4.

Held: “Milke is entitled to habeas relief. We . . . REVERSE the decision of the district court and REMAND with instructions to GRANT a conditional writ of habeas corpus setting aside her convictions and sentences. Prior to issuing the writ, the district court shall order the state to provide Milke's counsel with Saldate's police personnel records covering all of his years of service, including records pertaining to any disciplinary or Internal Affairs investigations and records pertaining to performance evaluations. If the state believes that any of the materials it is ordered to provide are not relevant to Brady or Giglio, it may present them to the district court in camera, and the district court shall review them to determine whether they are relevant to Brady or Giglio, as explicated in our opinion. Defense counsel shall be allowed to see the documents and to argue why each might be Brady or Giglio material. Id. at *20 (emphases added).

Of Note: Hard to overemphasize the bite of this Brady / Giglio opinion. How serious is the Ninth about these discovery violations? Enough to observe that the state trial judge “grossly misapprehended” the nature and contents of the documents – and then identify her by full name (including her middle initial, just to be clear). Id. at *9. Enough to send its opinion to the Az. USAO and to the DOJ Civil Rights division for possible federal prosecution of Saldate and other state and local officials. Id. at *21. 
   Milke is not just another decision with reheated discovery platitudes and bland assurances that things should improve. Our Chief has penned an attention-getter: Milke joins W.R. Grace and Stever as three discovery must-reads.  

How to Use: Milke is too rich to fully digest here. Here are highlights: 

Giglio information isn’t just potentially discoverable; “it must be disclosed unilaterally as a matter of constitutional right.” Id. at *7. 
 • Giglio information must be disclosed when it provides a good-faith basis for impeachment – irrelevant whether the witness will deny the impeachment. Id. at *9. 
• Denial of impeachment from Giglio materials violates “meaningful opportunity to present a complete defense” and is a due process violation. Id. at *10. 
Giglio disclosure representations should (apparently) be made under oath. Id. at *11. 
• Some cases may require court to review Giglio disclosure and not rely on prosecution’s review. Id. at *12. 
Giglio obligations continue through sentencing. Id. at *16. 
• “The state is charged with the knowledge that there was impeachment material in Saldate’s personnel file.” Id. at *17 (emphasis added).
• Inadvertent nondisclosure is enough for a Brady / Giglio violation. Id. at *19. 
• General availability of impeachment information to defense doesn’t diminish state’s obligation to produce under Brady. Id.   
For Further Reading: CJA comrades, your FPD-canaries are gasping in the coal mine -- a prudent time to sniff your post-sequestration air.  For a thoughtful piece of the latest on sequestration’s impact on FPD budgets, see the article in The Atlantic here.  
  As the good Ben Franklin wisely observed, "We must all hang together, or assuredly we shall all hang separately." 

Image of the Hon. CJ Kozinski from
Image of Debra Milke from
Image of the canary in a coal mine from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Anonymous Anonymous said...

I like your blog - its quick information and to the point. There's something that kind of sticks out. What happened since 2007 when she filed her appeal - is the court that backed up? Never seen a judge concur with his own opinion. That's interesting. Where does it say Bea and Farris joined in his opinion? Is that the norm if they don't dissent?

Monday, March 18, 2013 5:32:00 AM  
Blogger Unknown said...

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Tuesday, March 19, 2013 3:12:00 AM  
Anonymous Anonymous said...

Very interesting summary of the case. This case demonstrates the core problem with cops and prosecutors who abuse their power: there is absolutely no way now for anyone to tell if she did it or not. It is entirely possible that she did do it: the fact that her two friends took her son out to the desert and shot him is very odd, does not seem to have been satisfactorily explained, and is very consistent with her guilt. The insurance issue also seems to be troubling.

However, without anything more, there is no way to tie her to that act, which is why the testimony (to be more accurate, the testilying) of Saldate was so crucial. Had Saldate done his job properly - and plenty of courts had apparently tried to teach him how to do so, with little apparent success - we wouldn't be in this mess. We would have most likely had a basis for deciding if she did it nor not - beyond a reasonable doubt - and would not be faced with the ugly prospect of having either (a) wrongfully imprisoned someone solely on the basis of lies perpetrated by a dirty cop and an unethical prosecutor, or (b) released a pitiless murderess who had her 4 y.o. son shot like a rabid dog because she couldn't be bothered with having him around any more.

Criminal procedure laws exist for a reason - a very good reason - and it has nothing to do with coddling criminals and everything to do with finding as much of the objective truth as we can, with the subjective feelings and agendas of the role-players stripped away.

Freeing Ms. Milke should leave everyone with a vague feeling of uncertainty and a touch of queasiness; but the prospect of letting someone like Saldate, and the prosecutor who collaborated with him, get away with egregious abuses of power - abuses that could very well be turned on you or me if we happened to annoy them - should make us feel even queasier.

Bad cases may make for bad law, but bad cops and bad prosecutors make for bad society.

Wednesday, May 08, 2013 5:07:00 PM  

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