Debra Milke and a Litany of Criminal Defense Blunders and Omissions

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Phoenix, AZ—Debra Milke was freed from Death Row when the Ninth Circuit U.S. Court of Appeals took a detour around the technical issues of her purported confession.  It was unexpected when the court took the steps to examine the actual truth and how prosecutors covered up disgraced Phoenix police detective Armando Saldate’s sordid past.

Frankly I’ve never seen that happen before where an appellate court not only reverses a conviction but requests in investigation into the violation of Milke’s Civil Rights. The 60-page opinion that ordered a new trial is very damning to say the least.

Right now there are three major roadblocks that will derail any attempt at the retrial of Milke.  Maricopa County Superior Court Judge Rosa Mroz is dealing with these issues and will behearing arguments and ruling on them sometime next month.

The first obstruction to a new trial is that Saldate has wisely followed his lawyer’s advice to refuse to testify on grounds of self-incrimination.  Saldate could be prosecuted for perjury as a result of his 2010 testimony in the U.S.  District Court.  No reasonable judge would ever force Saldate to testify.  If Saldate does not testify about his tall tale of a confession a jury will never hear it.  That means they will have no evidence to present against Milke.

Maricopa County Attorney Bill Montgomery has all but guaranteed that his office won’t prosecute Saldate.  Should there be a prosecution Montgomery would have  an obvious conflict of interest and a special prosecutor would have to be appointed.  That reduces Montgomery’s assurances protecting Saldate to mere toilet paper.

The second hurdle is that if Saldate is somehow forced to testify, that his fabricated claims of confession should be suppressed at trial.  There is the issue of a lack of waiver by Milke to her right of legal counsel and very compelling evidence that there was never a confession.  Saldate’s credibility is that of any serial perjurer and I suspect strongly that Judge Mroz will indeed finally end this attempted murder of Debra Milke under color of law. 

The third obstacle is that when prosecutors gain a conviction and have engaged in misconduct at trial double jeopardy attaches.  That simply means that Milke cannot be tried yet again for the alleged crimes. The opinion issued by the Ninth Circuit Court is replete with the facts about discovery violations and prosecutorial misconduct regarding the concealment of Saldate’s prior perjury, misconduct and generally sullied background. 

The fact that a prosecutor, Noel Levy argued on the record against release of the information to the defense and jury made his malicious intent clear. The fact that Judge Cheryl Hendrix ruled against the defense did not relieve a prosecutor from his duty to turn the all the material over to the defense.

The likelihood that Judge Mroz or for that matter any judge would allow Saldate’s perjury to ever again echo in a courtroom against Milke is, zero.

Law is far from an exact science.  The same facts and arguments brought before different judges and juries will often see different results.  Many factors weigh in including corruption or misconduct by the triers of fact.  Often misconduct by cops and prosecutors is never uncovered by the defense.  Also lawyers make mistakes.

The term is an accurate one, Ineffective Assistance of Counsel. 

Ineffectiveness is not necessarily about defense lawyer’s negligence, ignorance or laziness.  They can simply trust the representations from officials and witnesses.  Theories of law are often incredibly convoluted and nearly impossible to negotiate.  Ineffective arguments to judges or biased judges often demolish a defendant’s chance at a fair trial.   Judges too make honest mistakes.

This is not meant to be a personal attack on Debra Milke’s lawyers.  She has had four of them over the past nearly quarter of a century.  I’ve never been part of the Milke defense team.  I have investigated the case for numerous news organizations local, national and international since the day of Milke’s arrest. 

My participation in this case has always been as an observer.  I’ve had to watch and report on this gut-wrenching case subject to the interest and whims of various TV news directors.  There always seemed to be a serious lack of interest in wrongful death penalty cases.  Have we all become so jaded that we don’t care about human innocent life anymore?  I never missed an opportunity to expose this disgusting injustice whenever or wherever I could. 

I have investigated and reported on the missteps of Milke’s lawyers along the way.  I’m not a lawyer but rely on over three decades of courtroom experience, police training and investigative experience that has guided me.  More importantly I discovered the mistakes after they were made.   I always had what the defense lawyers never did,  20/20 hindsight vision.

Some mistakes are minor but and others were huge.  I think my readers will agree that these are to blame as much as Saldate’s perjury for Milke’s wrongful conviction.   I’m not going to name the defense lawyers or assign individual blame.

The trial lawyer was a court appointed novice that never tried a murder case before. He failed to subpoena news videotape and articles that would have revealed my secretly tape-recorded interview of Milke in the jail receiving room while she was being booked.  That interview was nearly contemporaneous with the time Saldate claimed Milke confessed to him but by a couple of hours. Milke hotly denied to me either being involved ion the crime of confessing to police.  Had the jury heard my testimony and the tape recording, Milke would have been acquitted.  If I could record my interview with Milke what in God’s name prevented Saldate from doing that?  That answer is painfully obvious, Saldate wanted to fabricate evidence and he knew recording Milke would never facilitate that.

I approached that defense lawyer in a hallway before the trial and he angrily refused to even let me tell him about that recorded interview.  He was already being hounded by every media outlet and was emotionally overwhelmed.

Next while reviewing the Milke court records I saw that the defense lawyer had hired a “forensic expert” John M. Fritz, PhD.  I’d never heard of him and was looking at his CV.  He claimed to have been and investigator in robbery, homicide and burglary for the Chicago Police Department for seven years.  That made no sense to me because I never heard of any detective switching specialties three times during an entire career.  You see, coincidently I was a Chicago cop myself before I opened my detective agency.

I called back to a long time pal in the Chicago Police Personnel Unit and got the skinny on Fritz.  I learned he was a police recruit that washed out because he has a bleeding ulcer just after graduating from the academy.  Some seven years later he came back as a patrolman and was assigned to the Mass Transit Unit.  Within months he again suffered from the bleeding ulcer and resigned never to return again.

Fritz it turned out did later some investigative work for a well-known diploma mill and “earned” some degrees including his PhD.  Milke’s defense lawyer and investigator never bothered to vet their forensic expert.

I exposed Fritz just before the Milke Trial in a TV news story for the local CBS affiliate, Channel 10 News.  Fritz declined to comment for our story.  Soon Fritz was hauled into court to face a contempt hearing before Judge Hendrix.  The defense was barred from using any benefit of the contaminated physical evidence or Fritz’s “expertise.”  The good thing was that there never was any physical evidence implicating Milke in the crime.  The conduct of Fritz had no impact on the case or evidence but served as a red flag of ineffective assistance of counsel.  

At the end of the trial the embattled defense lawyer somehow allowed a prejudicial and inadmissible hearsay tape-recording to be admitted to the jury as evidence.  The tape never was presented during in the courtroom during the trial.  It was an interview of Milke’s sister by Saldate.  It was taped not by Saldate but actually by Milke’s sister.  

On the tape Saldate falsely claimed he had a taped confession from Milke.  He then outrageously lied to the sister telling her Milke also admitted trying to poison her son’s cereal.   Saldate also went on to claim that Milke tried to seduce him by flashing her breasts during the interview.  The jury heard never heard a challenge to any of the known lies contained on the tape.  They could only assume it was, all true.  

During deliberations the jury found this micro-cassette tape among the other submitted evidence items, asked for and got a player for the tape.  That tape’s contents broke a longstanding jury 50/50 deadlock.  They all quickly voted to convict.  Milke never had an opportunity to hear or confront that tape or its contents in court.  That shocking mistake nearly killed Milke.

I called that that the ‘Secret Tape” because it was hidden from Milke, the press and the public.   Only the prosecutor and defense lawyer knew of the tape’s existence. The secret tape remained a secret for an entire decade until a member of the jury informed me when I interview her for a KTVK-TV news story.   I was shocked to learn about this and confronted her appellate lawyer at the time.  In a TV interview e expressed surprise and delight that I discovered that happening but he never once bothered to raise the issue on Milke’s behalf.

I later learned that the lawyer looked at the trial record and saw the trial defense lawyer did not object when the prosecutor asked that the tape be entered into evidence.  Normally in law when the defense waives objection the damage done cannot be appealed.  However, in the rare instance of evidence getting to a jury and mot presented in the trial the defendant is always entitled to a new trial.  There is ample case law on that issue.

The Secret Tape revelation was some thirteen years ago and that was never raised once throughout the entire appeal process.  Debra Milke could have been freed long ago winning a new trial but for the ineffective assistance of counsel.

As for prosecutor Noel Levy, he knew what was on the tape, that it was not admissible and that it was not presented in the courtroom.  Knowing all that the stinking louse actually asked that the tape go to the jury anyway.  I think that’s certainly additional egregious prosecutorial misconduct.  Levy had a duty to be fair but instead took the low road in an effort to murder an innocent woman by allowing the jury to receive it.   

In the end we must ask if it was Saldate’s perjury that convicted Milke or an imperfect legal system?   Was this so difficult that well meaning and hard working defense lawyers were unable to meet their complicated task?   Here it was a combination of defense legal blunders compounded by the criminal acts by cops and perhaps a prosecutor.

I’ve personally tangled with Milke’s current defense team about raising the Secret Tape issue angering them, Milke’s mother and even Milke herself.  When Milke’s life was at truly at stake I felt that I had an obligation to raise these serious questions. Thankfully the Ninth Circuit Court looked to truth rather than technicalities.  The Secret Tape will never be an issue again, except of course as evidence of prosecutorial misconduct and bad faith in the pending motions.  

Within the next 30-45 days or whenever Arizona authorities can procure the necessary lethal chemicals (there is a shortage of them) Roger Scott will be brought into the execution chamber, strapped down and injected with poison for murdering Christopher Milke.  Had it not been for some exceptionally good legal defense work and the careful attention of the Ninth Circuit Court Milke would be suffering the same fate.   

The Debra Milke case is an indictment of the Death Penalty in America.  More than that it shows that we are destroying the lives of innocent people by false imprisonment when the death penalty in not involved.  We have to force cops and prosecutors to behave themselves.  Framing the innocent is nearly always a perfect crime.

Prosecutors have a duty not to simply win convictions but to seek justice.  The Maricopa County Attorney’s Office has let us all down in that regard.  I cannot imagine why they are still trying to reintroduce obvious perjured testimony as they again seek the death penalty for Debra Milke.  Make no mistake; they are still trying to kill Milke even though she is free on bail. The clumsy cover-up continues.

What can we do about this kind of outrage?  A step in the right direction would be to remove the protective mantle of civil immunity from every prosecutor in the land.  Right now prosecutors escape having to ever answer for their misconduct.  Too many prosecutors abuse their office, oath and ethical responsibilities. They must be stopped before they target you or someone you love.  Prosecutors too, must face accountability like everyone else.

My video message to Maricopa County Attorney Bill Montgomery

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