Murder conviction & death sentence overturned by "unconstitutionally prosecutorial silence"

The timing of this report is uncanny in view of yesterday's posting.

CNN this morning carried a story about an Arizona woman, now 49 years old, convicted by in a jury trial of murder, conspiracy to commit murder, child abuse and kidnapping on October 12, 1990, less than a year after her 4-year-old son was found dead, and being sentenced to death a few months later, is now having those convictions -- and the death penalty -- thrown out by the 9th. Circuit Court of Appeals after having been on death row for the last 22 years.

The case involved the murder of the boy by the boy's mother's roommate and another man. The roommate was apprehended, convicted of first-degree murder in the boy's killing and sentenced to death. The second man had told a detective that the boy's mother, Debra Milke, was involved in a plot to kill her son, but then neither men testified to that assertion in court -- "In fact," CNN reported, "no other witnesses or direct evidence (linked) Milke to the crime" other than the detective's testimony, and after pleading not guilty, Milke stood trial and tried to convince a jury that her account -- and not the detective's -- was the true one.

"The judge and jury believed the detective testimony, the article says… but they didn't know about his long history of lying under oath and other misconduct.
"Specifically, the judge noted that the detective had been suspended five days for taking 'liberties' with a female motorist and lying about it to his supervisors; judges had tossed out four confessions or indictments because he had lied under oath on those occasions; and that judges suppressed or vacated four other confessions because he had violated those persons' constitutional rights."

Ninth Circuit Chief Justice Alex Kozinski blasted the Phoenix prosecution for remaining "unconstitutionally silent" on the "history of misconduct" of its key witness, the detective. "The state was aware of the evidence in the detective's personnel file and had an obligation to produce those documents," Kozinski said. "... There can be no doubt that the state failed in its constitutional obligation."

Kozinski has ordered the state to turn over that dectective's personnel records to Debra Milke's lawyers, after which "a police official" must state, under oath, that everything has been disclosed and nothing has been "omitted, lost or destroyed," CNN relates

"This is done, the district court will then have to order Milke's release unless prosecutors inform the court within 30 days that they plan to retry her soon."


MILKE V. RYAN 07-99001 Phoenix District Court Prisoner Death Penalty 03/14/2013