The only evidence that linked Debra Milke to the death of her four-year-old son, Christopher, during her 1990 capital murder trial in Phoenix, Arizona was the testimony of a Police Detective Armando Saldate. He testified that Ms. Milke confessed to him following her arrest in 1989.
Milke reportedly told Saldate that she paid two men to take her son into the desert and shoot him so she could collect $5,000 from an insurance policy on the boy. One of those men was her roommate who reportedly got a friend to help him in the murder. The day before the murder Christopher had been to a local mall where he saw Santa Claus. He begged his mother the next morning to let him go again. Instead of taking the boy to the mall, the roommate and an associate took him to a secluded desert ravine where the roommate shot him in the head three times. Milke was convicted and sentenced to death.
The problem with the so-called confession is that from the very beginning Milke, who was twenty-five at the time, denied having made it and vigorously protested her innocence. There were no other witnesses or direct evidence linking her to the crime. The trial was a swearing match between the Saldate and Milke, after which the jury and the judge chose to believe the police detective.
But as the Ninth Circuit Court of Appeals pointed out this past March, Saldate had a “long history of lying under oath and other misconduct.” He cultivated a police image that he could get a confession out of any suspect. Within hours of the crime Saldate had the roommate and his associate at police headquarters undergoing interrogation. Saldate worked on the roommate while fellow Detective Bob Mills worked on the associate. Saldate became convinced the associate would be the easiest suspect to crack. So he joined Detective Mills in the interrogation of the associate. Both detectives had different approaches. Mills preferred to let a suspect talk while Saldate preferred what he characterized as a “frontal assault” approach.
“I knew that I was going to be straightforward with [him], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts,” Saldate testified.
The associate quickly broke under Saldate’s frontal assault, agreeing to lead the detectives to Christopher’s body and showing them where he and the roommate had thrown the spent ammunition. On this little trip to the desert the associate reportedly told Saldate that Milke had been involved in the murder. Saldate immediately boarded a helicopter and flew to Florence, Arizona where Milke had gone to be with family and friends following Christopher’s disappearance. When the detective arrived at the Pinal County jail, local sheriff’s deputies had Milke in an interrogation room. She had not been told anything about Christopher.
Saldate barged into the room, brusquely introducing himself. He pulled a nearby chair within a “forearm’s length” of Milke and leaned into her face. He told her the police had found her son, “dead.” The detective testified that Milke started yelling, “what, what” and “seemed to try crying.” Milke was having none of that. “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to make me feel for her, and I didn’t buy it. I didn’t buy it …”
At that juncture Saldate placed Milke under arrest, reading her the Miranda warning. According to Saldate, Milke said she had complained to her roommate about Christopher but never thought he would harm the child. Saldate wasn’t “buying” that either, telling Milke: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.” With that, Saldate said Milke opened up to him, telling him about her failed marriage, her husband’s substance abuse problems, how she had contemplated having Christopher aborted, her fears that the four-year-old was becoming like his father, and that her decision to get involved in the murder conspiracy was a “bad judgment call.”
When all was said and done, Saldate said he had not only “cinched the case” against Milke but had helped her emotionally because she was “starting to feel better and was starting to get some of her self-esteem back.”
Milke’s version of the interrogation was dramatically different when she took the stand to testify in her own the defense. She denied any involvement in the murder and recalled informing Saldate that she didn’t understand the Miranda warning and that she needed a lawyer. She said Saldate ignored her request for an attorney, placed his hands on her knees, and then “embellished and twisted” her statement to make it appear she had confessed.
Even though he had been instructed to do so by his supervisors before he left for Pinal County to interrogate Milke, Saldate did not record the interrogation, did not even bring a tape recorder with him, and did not ask for anyone to witness the interrogation. In effect, Saldate deliberately set up the interrogation where it would be his word against the word of a murder suspect.
There was good reason why Saldate’s supervisors had instructed him to record the interrogation. He was a habitual liar. His personnel file was packed with instances of repeated misconduct: he had a five-day suspension for taking “liberties” with a female motorist and lying about it to his superiors; he had four court cases tossed out because he lied under oath about confessions; and in four other cases judges had to suppress confessions or vacate convictions because he had “violated the Fifth Amendment or Fourteenth Amendment in the course of interrogations.”
In finding that the prosecution had failed to comply with well settled constitution law, the 9th circuit stated that the prosecutor “remained unconstitutionally silent instead of disclosing information about Det. Saldate’s history of misconduct and accompanying court orders and disciplinary action.” The Court also ordered that a copy of their opinion be sent to the Assistant U.S. Attorney General of the Civil Rights Division, for possible investigation into whether Det. Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents.
The jury did not hear any of the information regarding Det. Saldate’s pattern of official misconduct. Why? Because the prosecution did not disclose the evidence to the defense as required by well established constitutional law, even though Saldate’s bad conduct was known by state law enforcement prior to trial.
In fact, although Milke’s attorney was not required to request potential impeachment evidence, she did so. She filed a subpoena duces tecum for Saldate’s “entire personnel file and “all records in Internal Affairs investigations … relating to his techniques or methods of interrogation, violations of Miranda rights and/or improprieties during the course of interrogations, if any.” The trial court quashed the subpoena because it was directed to the police department and internal policies prohibited disclosure of such information.
The Constitution of the United States requires a fair trial and one element of a fair trial is that prosecutors turn over favorable evidence to the accused. The prosecution was therefore under a constitutional duty to disclose the potentially favorable material, which could have been used to impeach Saldate, and the trial court had legal obligation to make sure it did so. Neither fulfilled these obligations. And that is why the Ninth Circuit reversed Milke’s conviction and ordered a new trial. While the appeals court said a state jury verdict must be given great deference, a defendant’s right to a fair trial trumps this deference requirement.
Milke, a native German, was released from the Maricopa County Jail in early September after posting a $250,000 bond with the help of a legion of supporters in the German and Swiss communities. She had been locked up more than 23 years, most of it on death row. Supporters purchased her a home where she must remain under “house arrest” awaiting her retrial.
We don’t know if Milke is guilty or not. The reversal of her conviction is not an exoneration. The prosecution had announced plans to seek the death penalty at the planned retrial. Her former husband remains convinced that she is guilty, although he does not want to see the mother of his deceased child put to death. But the issue in this case is not guilt or innocence. The issue is that Milke was denied a fair trial because the prosecution withheld significant Brady evidence that may have changed the outcome of the guilty verdict. Brady had been law 27 years in 1990 when Milke was tried. The prosecution knew full well it had a constitutional obligation to disclose the impeachment evidence against Saldate and failed to do so.
And it can reasonably be inferred that the prosecution would have let Milke be executed based solely on the testimony of a well-documented liar. This prosecutorial misconduct is worse than shameful; it’s downright criminal.