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Date: 03-14-2013
Case Style:
Case Number: 711 F.3d 998 (9th Cir. 2013)
Judge: Kozinski
Court: United States Court of Appeals for the Ninth Circuit on appeal from the United States District Court for the District of Arizona
Plaintiff's Attorney: Lori L. Voepel and Michael D. Kimerer
Defendant's Attorney: Terry Goddard, Kent Cattani, and Julie A. Done
Description: Phoenix, Arizona civil rights lawyers represented Appellant who appealed the denial of her petition for a write of habeas corpus.
In 1990, a jury convicted Debra Milke of murdering her four-year-old son, Christopher. The judge sentenced her to death. The trial was, essentially, a swearing contest between Milke and Phoenix Police Detective Armando Saldate, Jr. Saldate testified that Milke, twenty-five at the time, had confessed when he interviewed her shortly after the murder; Milke protested her innocence and denied confessing. There were no other witnesses or direct evidence linking Milke to the crime. The judge and jury believed Saldate, but they didn't know about Saldate'slong history of lying under oath and other misconduct. The state knew about this misconduct but didn't disclose it, despite the requirements of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Some of the misconduct wasn't disclosed until the case came to federal court and, even today, some evidence relevant to Saldate's credibility hasn't been produced, perhaps because it's been destroyed. In the balance hangs the life of Milke, who has been on Arizona's death row for twenty-two years.
Outcome: Milke is entitled to habeas relief. We therefore 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. The district court may, in its discretion, enter a protective order requiring all contested documents to be filed under seal and to be designated “For Attorneys' Eyes Only,” and setting such other conditions as the district court finds necessary and proper, while the district court decides whether the contested materials are relevant to Brady or Giglio.
After the state has turned over these records, it shall provide a statement under oath from a relevant police official certifying that all of the records have been disclosed and none has been omitted, lost or destroyed. If a relevant police official is unable or unwilling to provide such a certification, the district court shall hold an evidentiary hearing to determine whether any records have not been produced, and, if so, why. Petitioner's counsel shall be given a reasonable period of discovery prior to the hearing. This panel retains jurisdiction over any appeal arising from this remand.
Upon production of the certification described above or the conclusion of the evidentiary hearing, the district court shall order Milke released unless the state notifies the court within 30 days that it intends to retry Milke, and actually commences Milke's retrial within 90 days.
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 patternof violating the federally protected rights of Arizona residents.
Plaintiff's Experts:
Defendant's Experts:
Comments: