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UPDATE: After a quarter-century, Maricopa County’s notorious prosecution of Debra Milke is finally over.  The Arizona Supreme Court has denied review of the Appellate Court decision barring Milke’s retrial for murder on the grounds that it would expose her to double jeopardy.  That decision, discussed at length in our original post below, found the “egregious misconduct that resulted in a flagrant denial of due process,” at Milke’s trial and during her appeals process was “a severe stain on the Arizona justice system,” and could only be remedied by “the most potent constitutional remedy,” of dismissing the conviction with prejudice.  Milke spent 22 years on death row based almost entirely on the testimony of a police officer whose coercion of suspects and false testimony under oath had been litigated in seven prior cases, a fact never revealed to Milke or her attorneys.



As was widely reported last week, an Arizona appellate court has dismissed with prejudice murder charges against Debra Jean Milke, who has spent most of the last twenty-three years on that state’s death row following her 1990 conviction in Maricopa County for the death of her four year old son.

The Milke case is one we have been following here at the Open File for some time. It has already produced one opinion that we called “a model of prosecutorial accountability”, when the 9th Circuit threw out Milke’s conviction based on the Brady violations at her original trial and throughout her appellate process, and removed her from death row in 2013.

It has now produced a second opinion that we can fairly describe as a model of accountability.  In State v. Milke, the Arizona Court of Appeals last week held that the state’s behavior, which led to the 9th Circuit’s reversal, was “egregious misconduct that resulted in a flagrant denial of due process,” of such severity that “the most potent constitutional remedy is required,” dismissal with prejudice on the grounds that a retrial would expose Milke to double jeopardy.

With remarkably brave frankness for a decision about a media spectacle of a case, the court concludes, “Our analysis is based entirely on whether double jeopardy applies to bar Milke’s retrial in this case, and we express no opinion regarding her actual guilt or innocence” (emphasis added).  In short, we don’t know if we’re barring the trial of a murderer or not, but the constitution requires that we prevent the state from trying her.

The decision mirrors another case we wrote about back in October, where a Philadelphia  judge, relying on a Pennsylvania Supreme Court decision (Commonwealth v. Smith) also cited in State v. Milke, found double jeopardy applied in cases of particularly gross misconduct by the state.

The “Egregious Misconduct” Itself

As a quick recap, Milke’s original conviction relied heavily on the testimony of Phoenix Police Detective Armando Saldate, Jr., who told the jury that Milke had confessed to the crime in an unrecorded interrogation.  As the appellate court wrote, “It was Milke’s testimony against Saldate’s,” and it was Saldate that the jury believed.

What the jury did not know, and what the defense was prevented from discovering was that “[b]y the start of Milke’s trial in 1990, at least seven cases involving instances of Saldate’s misconduct had been or were being litigated.”  These ranged from “false statements to the grand jury” to “interrogating a suspect who was strapped to a hospital gurney, incoherent after apparently suffering a skull fracture.”  In multiple cases, according to the appellate court, the misconduct led to the exclusion of Saldate’s testimony, or the evidence he was presenting.

Not only had the State not turned over any information regarding the prior and ongoing proceedings involving their lead witness; they had successfully moved to quash a defense subpoena for the detective’s personnel records.

The Double Jeopardy Remedy

But what makes State v. Milke extraordinary is not the Brady violations it enumerates, but the remedy to those violations that it grants.

We are unable to conclude that the long course of Brady/Giglio violations in this case are anything but a severe stain on the Arizona justice system. Nondisclosure of this magnitude calls into question the integrity of the system and was highly prejudicial to Milke. In these circumstances—which will hopefully remain unique in the history of Arizona law—the most potent constitutional remedy is required.

More striking still:

The extent of any individual prosecutor’s knowledge of the misconduct is immaterial. Though in some cases an individual may be the focus of the inquiry, it is the duty of the State as a whole to conduct prosecutions honorably and in compliance with law.

When, as here, egregious prosecutorial misconduct continues for a significant period of time, preventing a fair opportunity for acquittal or reversal on appeal, preservation of the integrity of our system of justice is paramount

Based on the record of this prosecution, fidelity to our supreme court’s decisions interpreting the Arizona Constitution’s Double Jeopardy Clause requires us to bar retrial of Milke. No lesser sanction would rehabilitate the damage done to the integrity of the justice system.  Our analysis is based entirely on whether double jeopardy applies to bar Milke’s retrial in this case, and we express no opinion regarding her actual guilt or innocence. (latter emphasis added)

To the admirable clarity of these passages, the court adds a substantial footnote from Jorgenson, one of the Arizona Supreme Court cases they cite, which makes clearer still the vital need for more courts to impose this sanction on prosecutors who violate their ethical and constitutional duties.

Application of double jeopardy is not only doctrinally correct when egregious and intentional prosecutorial misconduct has prevented acquittal, it is also required as a matter of pragmatic necessity. Any other result would be an invitation to the occasional unscrupulous or overzealous prosecutor to try any tactic, no matter how improper, knowing that there is little to lose if he or she can talk an indulgent trial judge out of a mistrial. The worst that could then happen is reversal for a new trial and an other shot at a conviction. This, of course, is exactly the type of governmental abuse at which the double jeopardy clause was aimed.

We couldn’t have said it better ourselves.  We only wish that those “unscrupulous or overzealous” prosecutions were far more “occasional” than the history of the last thirty years is increasingly proving they were and are.

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