Yesterday, I mentioned the saga of Debra Milke, a Phoenix woman who spent 22 years on death row for the 1989 murder of her four-year-old son, Christopher. However, the Ninth Circuit Court of Appeals threw the conviction out due to some of the most outrageous police misconduct ever uncovered. The detective handling the case, Armando Saldate, claimed that Milke confessed. However, Saldate never recorded the interrogation, didn't have anyone else witness it, never got Milke to sign a waiver of her Miranda rights and threw away his notes. His testimony was the only direct evidence against Milke; the two triggermen never implicated her. Additionally, the prosecution failed to turn over evidence of Saldate's long history of misconduct--including eight instances where his lies under oath or violations of suspects' rights led to confessions, indictments or convictions being tossed out.
And yet, despite all of this, state attorney general Tom Horne plans to appeal the Ninth Circuit decision. This sounded so outrageous that I thought it was snark when I read it in an Arizona Republic column. But unfortunately, it isn't.
“We will be appealing this decision to the U.S. Supreme Court. If the Court takes the appeal, I will argue it personally as I have done in two previous cases over the past five months. In my last case, the Supreme Court accepted my argument and overruled the Ninth Circuit’s decision unanimously.
In this case, Ms. Milke was found to have arranged the killing of her own son, a four-year-old toddler, because he was too much of a burden and interfering with her life. After dressing him up and telling him he was going to the mall to see Santa Claus, Milke was convicted of sending her young son off to be shot, execution style, in a desert wash.
This is a horrible crime. The Ninth Circuit’s decision needs to be reversed, and justice for Christopher needs to be served.
Unless there's something Horne knows about this case that we don't, there is no defensible reason for this case to be appealed. Simply put, without Saldate's testimony,
there is no case against Milke. The two triggermen have said consistently that Milke was never involved. Therefore, unless Horne has stumbled on some really earthshaking evidence--and that's extremely unlikely given the time that's elapsed--you really can't justify another trial. Especially since this is a death-penalty case.
Beyond legal considerations, there's a moral consideration as well. Milke's rights were so flagrantly violated that in my view, Arizona has lost any moral authority to keep her in custody. According to the Ninth Circuit opinion, Milke claims that Saldate went ahead with the interrogation even after she asked for a lawyer, and then embellished her statements. One can only assume Milke is telling the truth, given Saldate's history. We're talking about a guy who not only lied under oath at least four times to judges and grand juries, but interrogated at least two badly injured suspects even though they were obviously incoherent. There'd have to be some pretty earthshaking evidence to overcome such a flagrant violation of the rights of those accused of crime--and if there was any, it would have come up by now. For that reason, a second trial would not be credible.
I'm reminded of the Blackwater shooting case. There is no doubt those guards are guilty of murder. And yet, the prosecution relied on statements they gave to the State Department under pain of losing their jobs--an egregious Fifth Amendment violation that demanded the cases be thrown out. I'm also reminded of the Ted Stevens case. The government seemed to have an airtight case of corruption against him--but there isn't an appellate court in this country that would let a conviction stand based on evidence of the prosecution knowingly allowing the use of perjured testimony. The bottom line? Even in the extremely remote chance that Milke may have been guilty (I'd rate those at around 0.000001%, based on the evidence that's come out), a second trial would not be credible.
Horne needs to be told in no uncertain terms that this appeal is a rotten idea that will only make Arizona look worse than it already looks now. Drop him a line on his contact page, or like his Facebook page long enough to give him an earful.