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Saved From Death Row By The Prosecutor

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

Debra Milke’s 4-year-old son Christopher went to the mall to see Santa Claus and was so excited that he asked to go see him again the next day.  Milke allowed her roommate, James Styers, to take him back to the mall and she never saw him again.  Instead of the mall, Styers and a friend took him to a secluded spot and shot Christopher in the head three times.  Styers was convicted of first-degree murder and sentenced to death.  A jury convicted also convicted Milke of murder, conspiracy, child abuse and kidnapping on October 12, 1990. She was also sentenced to death.

What led to Milke’s conviction?

The problem with the case is that at trial there was no direct evidence that connected Milke to the murder, according to her attorney Lori Voepel.  The only evidence the State had was the testimony of Phoenix police Detective, Armando Saldate, who testified that Milke confessed to him.  However, the interrogation was not recorded or witnessed by anyone else.  Milke denied she ever confessed to the crime and always maintained her innocence.

According to a CNN report, the jury apparently believed Saldate’s statements.  What the jury did not know was that Saldate had a “long history of lying under oath and other misconduct.”  In fact, at least four confessions and indictments in other cases had been thrown out earlier because it was discovered that Saldate had lied under oath.

Milke’s conviction and death sentence have been overturned.

Now, nearly 23 years later, Milke’s conviction has been tossed as a result of a Ninth Circuit Court of Appeals’ opinion.  The Court found that the prosecution should have revealed the fact that the detective who testified about Milke’s alleged confession had a history of lying under oath.  The court concluded that prosecutors’ decision not to turn over this evidence of Saldate’s lack of credibility deprived Milke’s attorneys of the chance to impeach him in front of the jurors.  Chief Judge Alex Kozinski, who wrote the opinion, said “[n]o civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty.”

What is Prosecutorial Misconduct?

Prosecutorial misconduct is what happens when a prosecutor breaks the law or a code of professional conduct while prosecuting a case.  It means “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”

Prosecutors, who are charged with seeking justice, work with police officers in obtaining evidence and “building a case” against a suspect.  When a prosecutor finds evidence that could prove the suspect is innocent, they have to turn that evidence over to the defense.  Yet, some prosecutors are tempted to cover up that evidence in order to secure a conviction, either because of ego or competitiveness.  A writer for the California Innocence Project described the conflict this way:

Because the criminal justice system is adversarial – the prosecution and the defense battle against each other within the framework of the law – it is very difficult to hand the opponent the tools that could very well destroy your case.  Nevertheless, it is the prosecutor’s duty to do so.

The statistics show that misconduct has resulted in overturned convictions at a relatively high rate.  Research results from the Criminal Justice Commission have shown, for example, that in between 36% and 42% of convictions overturned based on newly discovered DNA evidence, prosecutorial misconduct was a factor.  Prosecutors must be held accountable for their conduct, especially in their roles as public servants.  Meaningful sanctions need to be imposed; otherwise courts are simply inviting further misconduct and integrity of our criminal justice system will be at risk.  If prosecutorial misconduct is not curbed, overturned convictions will increase and our public safety will be threatened by the release of criminals on technicalities and the imprisonment of the innocent.

What is next for Debra Milke?

Milke has since been released from prison on bond.  However, her legal issues are not over.  Arizona Attorney General, Tom Horne, has vowed to appeal the case to the U.S. Supreme Court.  So, Milke still faces charges and will likely be retried.   Now that Milke is free, Saldate is claiming his Fifth Amendment right to remain silent and avoid self-incrimination.  Since he is refusing to cooperate with prosecutors, it will be difficult for the State to make a case against Milke without any solid evidence.  The retrial began on Sept. 30.


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