Milke v. Ryan

• Citation: 711 F.3d 998
• Decision Date: 14 March 2013
• Docket Number: No. 07–99001.,07–99001.
• Parties: Debra Jean MILKE, Petitioner–Appellant, v. Charles L. RYAN, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

711 F.3d 998

Debra Jean MILKE, Petitioner–Appellant,

v.Charles L. RYAN,^* Respondent–Appellee.

No. 07–99001.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 3, 2010.

Filed March 14, 2013.

Lori L. Voepel (argued), Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ; Michael D. Kimerer, Kimerer & Derrick, P.C., Phoenix, AZ, for Petitioner–Appellant.

Terry Goddard, Attorney General, Kent Cattani, Chief Counsel, Capital Litigation Section and Julie A. Done (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for Respondents–Appellees.

Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, Senior District Judge, Presiding. D.C. No. CV–98–00060–PHX–RCB.

Before: ALEX KOZINSKI, Chief Judge, JEROME FARRIS and CARLOS T. BEA, Circuit Judges.

Opinion by Chief Judge KOZINSKI; Concurrence by Chief Judge KOZINSKI.

OPINION

KOZINSKI, Chief Judge:

In 1990, a jury convicted Debra Milke of murdering her four-year-old son, Christopher. The judge sentenced her to death. The trial was, essentially, a swearing contest between Milke and Phoenix Police Detective Armando Saldate, Jr. Saldate testified that Milke, twenty-five at the time, had confessed when he interviewed her shortly after the murder; Milke protested her innocence and denied confessing. There were no other witnesses or direct evidence linking Milke to the crime. The judge and jury believed Saldate, but they didn't know about Saldate'slong history of lying under oath and other misconduct. The state knew about this misconduct but didn't disclose it, despite the requirements of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Some of the misconduct wasn't disclosed until the case came to federal court and, even today, some evidence relevant to Saldate's credibility hasn't been produced, perhaps because it's been destroyed. In the balance hangs the life of Milke, who has been on Arizona's death row for twenty-two years.

Facts

On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother to let him go again. Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing.

Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate's day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate's “style,” as he described it, was “a little different”—he preferred a frontal assault. “I knew that I was going to be straightforward with [Scott], 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.”

Soon after Saldate's appearance, Scott broke. He led the detectives to Christopher's body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved.¹ Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Milke had gone to stay with her father and step-family after she learned of Christopher's disappearance.

In Florence, a deputy sheriff invited Milke to headquarters to wait for Saldate. Saldate found Milke waiting in a 15–by–15–foot room of the Pinal County jail. She hadn't been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm's length at most, and leaned in even closer. That's when he told her that the police had found her son—dead.

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “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 try to make me feel for her, and I didn't buy it. I didn't buy it....”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she'd complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “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 claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke—his drug and alcohol abuse and his arrests—recounted how she'd gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate's opinion about whether her family would ever understand. (His view: No.)

By the end of the interview, Saldate had more than just cinched the case against Milke; he'd helped her emotionally. According to Saldate, Milke said she was “starting to feel better and was starting to get some of her self-esteem back.” Saldate also testified that Milke asked whether she would be released that night, and when he said she wouldn't be, she asked whether the court could give her “probation for life” if “she could have her tubes tied and never have children again.”

Milke has always denied involvement in the murder, and her account of the interrogation differs substantially from Saldate's. Milke testified that she told Saldate she didn't understand the Miranda warnings and that, when Saldate asked if she wanted the interrogation taped, she said: “No, I need a lawyer.” According to Milke, Saldate ignored her request, instead putting his hands on her knees and proceeding with the interrogation; he then embellished and twisted Milke's statements to make it sound like she had confessed.

The jury had no independent way of verifying these divergent accounts. Saldate didn't record the interrogation, even though his supervisor instructed him to do so. Saldate didn't bring a tape recorder to the interview, nor did he ask anyone to witness the interrogation by sitting in the room or watching through a two-way mirror. Saldate also skipped the basic step of having Milke sign a Miranda waiver. Not even Saldate's interview notes made it into court: Saldate testified that he destroyed them after writing his official report three days after the interrogation.

The jury thus had nothing more than Saldate's word that Milke confessed. Everything the state claims happened in the interrogation room depends on believing Saldate's testimony. Without Saldate's testimony, the prosecution had no case against Milke, as there was no physical evidence linking her to the crime and neither of her supposed co-conspirators—Styers and Scott—would testify against her. But Saldate was an experienced witness and his account of Milke's purported confession proved convincing. The jury found Milke guilty of murder, conspiracy to commit murder, child abuse and kidnapping. The judge sentenced her to death.

* * *

Normally that would be the end of the matter. Right or wrong, a jury's credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution's obligation to turn over exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 674–75, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio, 405 U.S. at 153–55, 92 S.Ct. 763;Brady, 373 U.S. at 87, 83 S.Ct. 1194. This never happened in Milke's case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

The Appendix contains summaries of some of Saldate's misconduct and the accompanying court orders and disciplinary action. This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this reflects a full account of Saldate's misconduct as a police officer. See pp. 1010–11 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

Discussion

I. Antiterrorism and Effective Death Penalty Act

Principles of comity and federalism, as articulated by Congress in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), require federal courts to treat the decisions of the state courts with deference. But when state courts interpret federal law incorrectly, or fail to apply it at all, a federal court may intervene.

Under AEDPA, we may grant habeas relief if the state court proceedings ...