March 17, 2013
By JAMIE ROSS
- A woman should not have been convicted of murdering her 4-year-old son based solely on the testimony of a detective with an alarming history of misconduct, the 9th Circuit ruled.
Debra Milke was 25 and newly divorced in December 1989 when her son Christopher asked to see Santa Claus at the mall for the second time in as many days.
Milke's roommate James Styers agreed to take the boy but made a detour to pick up his friend Roger Scott. They then took 4-year-old Christopher to a secluded ravine where they shot him three times in the head. The men proceeded to the mall in Phoenix, Ariz., and reported Christopher as missing, but police suspected foul play.
Scott quickly confessed and implicated Debra Milke in the plot. Phoenix Police Detective Armando Saldate brought the mother in, told her that her son was dead and then arrested her.
By his version of events, Milke immediately confessed to a murder conspiracy. He said she had also spoke about nearly aborting Christopher when she became pregnant, and that lately she had worried that he was becoming like his father. Saldate did not record the interrogation, however, and he also failed to have Milke sign a waiver of her Miranda rights and or have other officers witness the interrogation.
Apart from Saldate's memory, Milke has consistently denied involvement in the murder. She gives a substantially account of the interrogation and says Saldate ignored her requests for a lawyer.
Though there was no physical evidence linking Milke to the murder, and neither Scott nor Styers would testify against her, the jury credited Saldate's word and convicted Milke of murder, conspiracy to commit murder, child abuse and kidnapping.
Styers and Scott meanwhile were both convicted separately in the murder.
One of three women on Arizona's death row, Milke failed to win a writ of habeas corpus from a federal judge, but a three-judge panel of the 9th Circuit reversed Thursday.
The 60-page decision, complete with an appendix of Saldate's misconduct and a concurrence by Chief Judge Alex Kozinski, notes that the "state remained unconstitutionally silent instead of disclosing information about Det. Saldate's history of misconduct and accompanying court orders and disciplinary action."
Saldate's record includes a five-day suspension for "taking liberties" with a female motorist and lying about it to his superiors, according to the ruling. He was also involved in eight cases that judges had to overthrow or dismiss because he lied under oath or violated the Fourth or Fifth Amendment rights of detainees.
Kozinski, who also wrote the lead opinion, said in the concurrence that Milke's case is "disturbing."
After noting that Saldate's testimony has no corroboration from Milke's alleged co-conspirators, Kozinski called Saldate's interrogation methods "equally troubling."
"Saldate's supervisor asked him to record Milke's interrogation, yet Saldate didn't even take a tape recorder with him," Kozinski wrote. "Saldate claims that Milke refused to have the conversation recorded, but admits that he 'basically didn't want to record it anyway.' And why not? Because 'a tape recorder is an obstacle for [him] to get to the truth' and so 'it's [his] practice never to use a tape recorder.' Of course, being left with no recording is an obstacle for us to get to the truth, but Saldate tells us not to worry: '[The] conversation was going to be noted by me in a truthful manner, so there was really no need for tape recording.' Right."
In addition to an absent Miranda waiver, Saldate also destroyed his notes from the interrogation, "leaving us no objectively verifiable proof as to what happened inside," the ruling states.
"Milke may well be guilty, even if Saldate made up her confession out of whole cloth," Kozinski added. "After all, it's hard to understand what reason Styers and Scott would have had for killing a four-year-old boy. Then again, what reason would they have to protect her if they know she's guilty? But I seriously doubt the jury would have convicted Milke without the purported confession."
Arizona must turn over Saldate's police personnel records to Milke's lawyers, and the District Court must release Milke unless the state notifies the court within 30 days that it plans to retry her, according to the ruling.