Milke v. Ryan

998 only upon to warrantless searches

subject MILKE, Petitioner- Debra Jean conduct. suspicion of criminal reasonable Appellant, CONCLUSION with conducted searches

Warrantless RYAN,* Respondent- L. Charles suspicion of criminal activ only reasonable Appellee. departure a considerable

ity represent No. 07-99001. requirement generally applicable from the person’s residence. The of search Appeals, United States Court has upheld such searches Supreme Court Ninth Circuit. 534 U.S. Knights, see probationers, 587, majority’s deci 112, 122 but the S.Ct. 3, Argued and Nov. 2010. Submitted further, such step permitting one goes sion Filed March suspi any quantum without searches probationer cion, long as the has assent condition, no

ed to a warrantless search I ambiguously would how worded. matter “ ... ‘closely guarded cate expand not suspi constitutionally permissible gory of ” than the searches’ further Su cionless Samson, already preme Court has. See (Stevens, 547 U.S. S.Ct. Miller, J., dissenting) (quoting Chandler 305, 309, 520 U.S. (1997)). L.Ed.2d majority’s from the I therefore dissent upholding court’s or decision the district denying King’s suppress. I der motion the district court would instead remand to including resolu proceedings, for further dispute the factual whether tion of valid the search police obtained consent for King’s mother. States v. from See United (9th Prieto-Villa, 910 F.2d Cir. 1990).

* Corrections, pursuant prede- Department Ryan Arizona Charles L. is substituted for his cessor, Schriro, 43(c)(2). R.App. Fed. Dora B. as Director P. Jones, L. Voepel (argued),

Lori Skelton Hochuli, Phoenix, P.L.C., AZ; Michael & Derrick, P.C., Kimerer, D. Kimerer & Phoenix, AZ, Petitioner-Appellant. Goddard, General, Attorney Kent Terry Cattani, Counsel, Capital Litigation Chief (argued), and A. Done Assis- Section Julie General, Capital Litigation Attorney tant Section, Phoenix, AZ, Respondents- Appellees. KOZINSKI,

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

KOZINSKI, Judge: Chief Milke jury convicted Debra son, four-year-old murdering her Chris-

topher. judge sentenced her was, essentially, death. trial a swear- contest Milke Phoenix ing between Saldate, Armando Police Detective Jr. Sal- Milke, twenty-five date testified time, confessed when he inter- murder; shortly her after viewed protested Milke her innocence and denied confessing. There were no other wit- linking nesses or direct evidence Milke jury the crime. The believed Saldate, they but didn’t know about Sal- history lying under oath and Mills and other long happy date’s officers were to let a other misconduct. The state knew about talk, suspect “style,” but Saldate’s as he it, but didn’t disclose de this misconduct it, described was “a little different” —he Brady Mary spite requirements preferred a frontal assault. “I knew I land, 83, 87, 373 U.S. 83 S.Ct. going straightforward be with (1963), Giglio L.Ed.2d 215 United [Scott], I going very to be truthful States, 150, 153-55, U.S. him, going with but I was to make sure (1972). 31 L.Ed.2d 104 Some of the mis that whatever he told going jive me was until conduct wasn’t disclosed case with the facts.” and, today, came to federal court

some evidence relevant to Saldate’s credi Soon after appearance, Scott bility produced, perhaps hasn’t been be broke. He led the detectives to Christo- destroyed. cause it’s been In the balance pher’s body and them told where he and Milke, hangs the life of has who been on Styers unspent had thrown the ammuni- twenty-two years. Arizona’s death row for According Saldate, tion. to Scott said along way the that Debra Milke had been Facts involved.1 Detective Saldate on seized life, evening On the last of his short statement by helicopter and flew to Flor- Christopher Milke saw Santa Claus ence, Arizona, gone where Milke had to up morning beg- mall. He woke the next stay with her father step-family and after ging go again. his mother to let him De- she learned Christopher’s disappear- agreed bra and Christopher sent ance. roommate, mall Styers. with her James way, Styers Mend, On the picked up Florence, his deputy a sheriff invited Roger Scott. But instead of heading to headquarters toMilke to wait for Saldate. mall, boy the two men drove the out of waiting Saldate found Milke in a 15-by- ravine, a Styers town to secluded where County jail. 15-foot room of the Pinal She Christopher shot in three times the head. arrested, hadn’t been nor had she been mall, Styers and Scott then to drove anything Christopher. told about Saldate they reported Christopher where as miss- pushed into the room and him- introduced ing. Milke, pulled self. He his chair close to a Sunday morning, day less than a into most, length forearm’s leaned missing-child investigation, police be- even closer. That’s he told her that when gan suspect Styers to and Scott. It was police had found her son-dead. supposed off, day be Detective Saldate’s “What, what,” testified Saldate Milke but the sergeant charge homicide reported said. Saldate also that Milke him police case called in. A veteran of the yelling try crying.” started and “seemed to force, get Saldate was confident he could through But the detective the ploy: saw truth anyone interrogated. out of “When someone is told that their child was At headquarters Styers he started in on they murdered and start sob and no immediately, almost partner, while his De- eyes, obviously tears come to their it’s a Mills, tective Bob worked on Scott. Short- her, way try for her to to make me feel ly p.m., joined before 1 Saldate Mills it_” Saldate, interrogating According Scott. I I buy buy didn’t it. didn’t alleged Styers testify 1. Scott’s against statement was excluded as would Milke. hearsay at Milke's trial. Neither Scott nor taped, she interrogation wanted the arrest and she under Milke placed Saldate “No, According to lawyer.” I According need her Miranda rights. said: read out in- Milke, request, him ignored to tell her Saldate, Milke started Saldate when Christopher about on her knees and complained his hands putting that she’d stead Styers would never realized he then Styers interrogation; but with the proceeding “I her down: boy, shut hurt the Saldate Milke’s state- and twisted embellished course, told her immediately, of con- like she had to make it sound ments I wasn’t I told her truth and wasn’t the fessed. that, I there that wasn’t tolerate going to way of independent jury had no lies, I have the time.” did nor to listen accounts. Sal- divergent verifying these claims, that, opened Milke With interrogation, date didn’t record intimate details the most to him about up him to do instructed though supervisor that, span in the testified of her life. He recorder to bring tape so. Saldate didn’t minutes, knowingly Milke just thirty anyone to interview, he ask nor did counsel, rights to silence her waived by sitting interrogation witness years high her school reminisced about mir- two-way watching through room or life,” feigned “in love with when she was skipped step the basic ror. Saldate also down, failed tears, narrated her calmed a Miranda waiver. Not having sign Milke drug and to Mark Milke—his marriage made it into interview notes Saldate’s even and his arrests —recounted alcohol abuse destroyed that he testified court: Saldate while on birth gotten pregnant how she’d report three writing his official them after abortion, contemplated an and control days interrogation. after the one, appointment an discussed making than jury nothing had more The thus becoming Christopher was her fear that Milke confessed. Ev- word that Saldate’s father, to a murder con- confessed like his happened claims erything the state as a conspiracy characterized the spiracy, believing depends room on interrogation judgment call” and solicited Saldate’s “bad testimony. Saldate’s Without family her would about whether opinion no case testimony, prosecution had (His No.) view: ever understand. Milke, physical there was no against interview, end of the Saldate By the crime and nei- linking her to the just against cinched the case more than co-conspirators— supposed ther of her Ac- Milke; emotionally. her helped he’d testify against Styers and Scott—would Saldate, Milke said she was cording to an wit- experienced But her. starting to and was “starting to feel better purported and his account of Milke’s ness Sal- her self-esteem back.” get some of jury The proved convincing. confession asked wheth- testified that Milke date also murder, conspiracy guilty of found Milke night, would be released er she murder, kidnap- commit child abuse be, asked she wouldn’t she when he said her to death. ping. sentenced give “proba- could her the court whether * * # if have her tubes for life” “she could tion again.” tied and never have children Normally that would be the end Right wrong, jury’s cred the matter. always involvement Milke has denied to re are entitled ibility determinations murder, the inter- and her account of a fair requires But the spect. Constitution substantially from Sal- differs rogation trial, of fairness one element essential that she told Sal- date’s. Milke testified turn over obligation to prosecution’s is the understand the Miranda date she didn’t See United States that, exculpatory if evidence. when Saldate asked warnings and 667, 674-75, Bagley, v. 473 U.S. 105 S.Ct. that was based on unreasonable deter 3375, (1985); Giglio, 87 L.Ed.2d 481 405 mination of the facts in light of the evi 763; Brady, U.S. 92 S.Ct. presented dence in the pro State court 87, U.S. at 1194. This never S.Ct. 2254(d)(2). ceeding,” § id. A state court case, happened jury so Milke’s decision provides explanation no is hearing long trusted Saldate without of his deference, entitled to AEDPA Harrington history of lies and misconduct. — Richter, -, U.S. Appendix contains summaries of (2011), 178 L.Ed.2d 624 but a state some of Saldate’s misconduct and the ac- court decision that apply fails to the cor court companying disciplinary orders and rect controlling authority is “contrary to history five-day action. This includes a ... established Federal law” and not enti suspension taking with a “liberties” deference, tled to AEDPA Benn v. Lam female lying motorist and then about it to bert, (9th Cir.2002) 283 F.3d supervisors; four court cases where (internal quotation omitted); marks Shack judges tossed out confessions or indict- Hubbard, (9th 234 F.3d leford oath; ments because Saldate lied under Cir.2000) (internal quotation marks omit judges and four cases where suppressed ted). confessions or vacated convictions because progeny and its require the state Saldate had violated Fifth Amendment to disclose all material evidence that could or the Fourth Amendment in the course of defendant, exculpate the including evi- interrogations. And it is far from clear dence that could be impeach used to one of that this a full reflects account of Saldate’s prosecution’s witnesses or undermine misconduct as a police pp. officer. See prosecution’s Despite case. 1010-11 All of this information infra. persistent complaints at trial ap- and on should have been disclosed to Milke and peal that impeachment evidence was with- jury, but the state remained unconsti- held, the complied state court never tutionally with silent. Brady. This omission resulted a deci- Discussion by sion post-conviction the state court that contrary clearly established law as I. Antiterrorism and Effective Death by announced the Supreme Court. 28 Penalty Act 2254(d)(1). Further, § U.S.C. the state Principles comity federalism, of post-conviction court so misread the evi- by Congress articulated in the Antiterror- dence before it documenting the state’s ism and Effective Penalty Death Act of Brady violations that its decision was (AEDPA), require 1996 federal courts to based on “an unreasonable determination treat the decisions of the state courts with 2254(d)(2). of § the facts.” 28 U.S.C. As deference. But when state courts inter- a result of these two failings, we cannot pret federal law incorrectly, apply or fail to accord AEDPA all, deference to the state it at a may federal court intervene. court’s decision. AEDPA, may grant Under we ha- if beas relief the state court proceedings A. Claim in State Court “resulted in a contrary decision that was law requires prosecu to, or involved an application unreasonable of, produce Brady Giglio tion to material law, clearly established Federal as de requests any whether or not the defendant Supreme termined Court of the States,” Greene, 2254(d)(1); § United such 28 U.S.C. or evidence. Strickler v. 263, 280, if the proceedings “resulted in a decision U.S. 119 S.Ct. 144 L.Ed.2d United, impeachment-evi her Accompanying (1999); Agurs, States v. claim, attached documents dence Milke 97, 107, 49 L.Ed.2d U.S. from committed cases which Saldate (1976). re though Milke wasn’t Even None Appendix. misconduct. of See evidence impeachment quired request by the state documents had been disclosed file—or else personnel from Saldate’s cases, state judges at trial. In of the four a by issuing at trial did so where —she or confessions be threw out indictments subpoena re tecum.2 subpoena duces a grand jury cause had lied to a personnel file” “entire quested Saldate’s Reynolds, example, for judge. In State v. Internal Af “all records including probable cause ordered a new relating ... to his investigations fairs finding the defendant “was largely because interrogation, vio or methods technique process fair right denied his to due and a rights impro of Miranda lations and/or impartial presentation evidence” interrogation, course of prieties during the lying under as a result of Saldate’s oath quashed if The state trial court any.” Granting grand jury. Order Mot. for except for some records of Sal subpoena Cause, Finding New of Probable State describing training and documents date’s Reynolds, (Ariz.Super.Ct. CR88-09605 policies, which were police department 27, 1989). Feb. in camera review. submitted for cases, judges In four threw out confes- ar- proceedings, Milke post-conviction sions or convictions because Sal- vacated trial” had gued “right her fair suspects’ date had Miranda and violated inability get her compromised been rights during other constitutional interro- in Sal- impeachment access case, In one gations, egregiously. often for file. She asserted personnel date’s example, that he Saldate testified interro- veracity” “truthfulness and of Saldate strapped to a gated suspect who that, to her case and un- were “material” bed, hospital apparently after incoherent law, right and state “the der federal suffering fracture. Transcript a skull and cross-examination is confrontation Yanes, State v. Motions and Trial at requirement and fundamental essential (Ariz.Super.Ct. May No. CR-130403 trial, of fair which is this coun- the kind 1983). the suspect’s introduced The state try’s goal.” argued Milke constitutional trial, Granting Order statement at his first denied her constitutional that she had been Trial, Yanes, Mot. New State No. right because the to cross-examine Saldate 26, 1984), July (Ariz.Super.Ct. CR-130403 give impeach- not her access to state did that, despite the fact when interviewed in his file. She blamed the ment evidence doctors, suspect didn’t know his own the “refusing permit to the full trial court name, year or the of the the current name interrogating officer.” impeachment Relief, president, for Post-Conviction Pet. in she petition, Earlier the also asserted 6, Yanes, v. Attachment A at State No. “imped[ed] 1983). court had defense that the trial 14, (Ariz.Super.Ct. Nov. CR-130403 ability impeach retrial, The counsel’s Saldate.” At the the suspect’s sup- court make the prosecution requisite didn’t dis- made pressed “those statements the closures, trial and the court didn’t order defendant to Armando Saldate.” Order Yanes, Granting Suppress, Mot. to State prosecution to do so. the graphs quote We subpoena. 2. tecum rec- from subpoena duces isn’t in the from ord, record does contain the Phoenix reproduction, but the that is the which state’s uncon- quash Department's motion to the sub- Police subpoena. tested account of poena. reproduces para- That motion three

1005 26, (Ariz.Super.Ct. Supreme No. CR-130403 Nov. summarily Court peti- denied the 1984). The state made no mention of tion. (or evidence, though perhaps of this In examining the reasonable because) in question a critical Milke’s case decisions, ness of the state courts’ we look ignored

was whether Saldate Milke’s re- explained to “the last state-court judg And, quest attorney. despite for an this Nunnemaker, ment” on this claim. Ylst v. impeachment trove of undisclosed evi- 797, 805, 501 2590, U.S. 111 S.Ct. 115 dence, post-conviction rejected court (1991); L.Ed.2d 706 accord Avila v. Gala claim Milke’s that she’d been denied access za, (9th Cir.2002). 911, 297 F.3d impeachment material. case, Milke’s judgment post- was the complaints post-conviction conviction trial court’s denial of her claim. assertions, court followed her earlier We conclude post-conviction petition, engaged her that the state had court’s decision is both “contrary to ... “repeated prosecutorial instances of mis clearly law,” established Federal 28 U.S.C. by failing conduct” to disclose evidence 2254(d)(1), § and “based on an unreason manner, a timely denying thus her “due able determination of the in light facts trial, process, a fair and a reliable sentenc presented in the State court ing determination.” Milke reminded the 2254(d)(2). § proceeding,” result, id. As a post-conviction “egregious court that mis preclude doesn’t us reaching from conduct prosecutor’s occurs where the ma Brady merits of the claim. nipulation of likely evidence is to have an Contrary a. clearly established Fed important jury’s effect on the determina Long-established eral law. Supreme tion.” To support proposition, this she precedent Court holds that prosecution Supreme cited the Court’s discussion of must turn over exculpatory evidence to the obligation disclosure Donnel Brady, defense. See 373 U.S. at ly DeChristoforo, 637, 647, 416 U.S. 1194; S.Ct. (1974). Bagley, see also U.S. at Indeed, S.Ct. 40 L.Ed.2d 431 674-78, 105 S.Ct. 3375. This ap doctrine “egregious Milke’s reference to miscon plies impeachment directly duct” comes from evidence as well. DeChristoforo’s 154-55, 763; phrase Giglio, use of that 405 U.S. at Brady. discuss 92 S.Ct. See id. at (referring Bagley, S.Ct. 1868 see also 473 U.S. at egregious the “sort of misconduct held in 3375. In Giglio, prosecution’s ease ... Brady to amount to a denial of consti “depended entirely” almost on the testimo process”). tutional due ny of an unindicted co-conspirator. Giglio, 151, 154, 405 U.S. at 92 S.Ct. 763. With again Milke impeachment-evi- raised the testimony, out his “there could have been petitioned dence claim when she the Ari- no indictment and no carry evidence to zona Supreme Court to review the denial jury.” case to the Id. at 92 S.Ct. 763. post-conviction alleged relief. She co-conspirator gave testimony only “denied defense counsel unfet- being immunity after offered from prose tered access to personnel rec- cution, prosecution disclose, but the didn’t and, result, ords” as a allowed Saldate’s trial, until after the that the witness had version of the supposed go confession to immunity. been offered Id. at “essentially unchallenged.” This error re- 763. According Supreme sulted in a S.Ct. to the presentation “one-sided of evi- Court, jury dence” “the “impeded jury’s] ability and to was entitled to know” [the fully fairly and in credibility considering assess the of about the offer the testimo both and ny. [Milke] Saldate.” The Arizona Id. at prosecu- 92 S.Ct. 763. The having cluding to its offer of immu- the defendant from access failure disclose tion’s to all Det. Saldate’s process personnel defendant’s due of records.” nity violated the a fair Id. The re- The found this claim “not colorable” to trial. Court court right why for a explain the conviction and remanded to the “fail[ed] versed because Milke Id. validly new trial. was discoverable and information how to ‘full of impeachment’ it relates Det. that Giglio’s the state requirement But impeachment Saldate.” material evi- impeachment evidence is well-es disclose discoverable; just Giglio, dence under isn’t have the and should controlled tablished unilaterally it as a must be disclosed mat- ruling on post-conviction court’s Milke’s right. ter of constitutional prosecutor in Milke’s Giglio, claim. As was straightforward: Milke’s claim She impeachment turn failed to over evidence effectively couldn’t cross-examine key witness, testimony the whose about to because the state had failed disclose was essential the case. undisclosed significant At impeachment evidence. tri- court orders from state evidence included al, subpoenaed personnel she Saldate’s file against who taken action the judges had impeachment access hoping gain in to the numerous cases because of prosecution evidence to which she was entitled even false under oath as Saldate’s statements request, that hoping the and other without and the well as Miranda constitu in the file during violations committed in evidence could lead further tional impeachment terrogations. Appendix. The evi evidence elsewhere. The See personnel quash subpoena, dence also included record state moved to the then documenting five-day suspension duty where impeachment failed in its to disclose supervisors caught him in a Saldate’s the evidence from file—and elsewhere— credibility that his lie and concluded despite requirements the compromised. p. 1012 The Giglio. See quashed The trial court the sub- infra. suspension didn’t turn over the re state poena, except relating for documents the file port personnel from until federal training describing po- those proceedings. habeas department policies, pro- lice which were duced for in camera The court inspection. and the The court documents informa presented post-convic- documents Milke in personnel fit tion file within the proceedings tion miscon- showing Saldate’s it sweep Giglio, was the broad have duct—misconduct should been “duty learn of prosecutor’s favor by the suggested disclosed acting evidence able known others state — personnel file would contain more. case, government’s on the behalf including police.” Kyles Whitley, light examining Instead of this claim 419, 437-38, 514 U.S. Giglio asking whether evidence — (1995). happened L.Ed.2d 490 here What favorable, whether have it should been akin to is more active concealment. and whether defendant suf disclosed Strickler, fered see 527 U.S. at prejudice, state applied wrong legal court 281-82, 119 S.Ct. state court 1936 — the authority in Milke’s In- resolving claim. discoverability focused on evi recognizing stead of the state’s constitu- specificity dence and the claim. impeachment obligation tional to turn over inquiry This long not the called for post-conviction under is Giglio, evidence standing Supreme Court caselaw. Be “specific said she have infor- didn’t wrong cause the state court on the mation as to the trial court focused how ‘refused’ ” questions denying impeachment- ‘full permit impeachment’ guessed but claim, applied wrong “the claim pre- legal of err relates to [sic] 1007 “contrary framework. is Its decision thus state no failing offers excuse for to turn clearly to ... and report trial, established Federal law” over the before the nor can we unworthy AEDPA of deference. See imagine any legitimate for reason this fail- Benn, 1051; Shackleford, all, 283 F.3d at 234 ure. After the finally pro- state did F.3d 1077. duce it when forced to do an byso order of the district court. b. Unreasonable determination the of The state court’s decision not is also prosecution’s The suppression of this re facts. entitled AEDPA deference because it port in state court distorted fact-find seriously key miseharacterized evidence ing process, forcing the state supported Milke’s claim. Section finding make her based on an unconstitu 2254(d)(2) authorizes federal habeas relief tionally incomplete record. This is not a when the state-court decision was “based situation where the record was incomplete on an unreasonable determination of the anything petitioner because of did or failed facts in light presented of the evidence in prosecution to do. The an “inescap the State court proceeding.” Such unrea- able” obligation constitutional Brady under sonable determinations “come in several Giglio produce and the evidence. flavors,” one of them being “where the Kyles, 438, 115 514 U.S. S.Ct. 1555. Its fact-finding process itself is defective.” comply failure to with that requirement Maddox, Taylor 366 F.3d rendered fact-finding “process em (9th Cir.2004). ployed by the state court ... defective.” Taylor, See light F.3d at 999. “[I]n Here, fact-finding the state court’s presented the evidence in -State court process ways. was defective two distinct 2254(d)(2) § proceeding,” U.S.C. —evi The first defect resulted from prosecu dence that was materially incomplete due tion’s suppression suspension report to the prosecution’s misfeasance —the state contained in personnel file. fact-finding court’s fatally was undermined report clearly available to the state by the absence of evidence that the state it unquestionably and Brady constituted was required Brady Giglio pro Giglio egregious the most duce. kind, yet suppressed the state it for more By withholding key evidence that it had than a decade. it finally When was dis duty produce, prosecution induced closed federal report court a defect that causes us to “more than showed that Saldate had a five- suffered merely process operat- doubt whether day suspension accepting sexual favors properly.” Taylor, ed F.3d at from a lying female motorist and then “[A]ny We can certain it appel- about be didn’t. it. That was disciplined late court to whom is lying job pointed on the defect obviously bears on out credibility holding would be unreasonable in qualifies Giglio evidence. report fact-finding process also state court’s discloses Saldate had no compunction abusing adequate.” about Id. The state finding his authori court’s ty public, with a member a vulnera thus amounted to deter- unreasonable who, Milke, ble woman like found herself mination under facts section 2254(d)(2).3 alone with him and under his control. The 1388, 1398, theory

3. We note an alternative which under L.Ed.2d 557 (2011), a federal applies suppressed court could consider Saldate's sus- is evidence that pension report, though yet first prosecution proceedings wasn’t in state presented open question court: support state It’s an on federal introduced habeas in of a - Pinholster, -, whether already adjudicated by Cullen v. U.S. claim the state type of that is allowed under in the state the defect second was its failure fact-finding process credibility court’s of a impeach Rule to the pre that was all the evidence to consider no witness.” That is doubt because she that, “where to it. have held sented We the nature and grossly misapprehended misapprehend or plainly the state courts pre- that Milke content the documents making their find the record misstate though the claimed to sented. Even to misapprehension goes ings, and the exhibits, referred have the she to reviewed is central to factual issue that material as collection of court documents con- the claim, misapprehension that petitioner’s testimony taining mere “motions and from fatally fact-finding pro the can undermine was other in which Det. Saldate the cases cess, rendering resulting the factual find It interrogating officer. establishes noth- short, at In Id. ing unreasonable.” suppress ing. filing of a motion to can’t AEDPA when we accord deference police engaged not officer does mean the it, yet appar court “has before the state improprieties.” ently ignores,” “highly evidence that is petitioner’s and central probative merely motions and Had these been claim.” Id. true; testimony, anyone that would be presented the court with Milke state allegations make can unsubstantiated from pages hundreds of court records misconduct. But seven of the cases in- where Saldate committed mis- cases that finding cluded court orders Saldate conduct, by lying or by either under oath had lied oath or violated the Fifth under violating suspects’ Miranda and other con- during the Fourth Amendments inter- or during interrogations. rights stitutional judicial rogations. Multiple determina- jury’s brought Had these been cases that performing tions lied in his attention, they certainly would have cast suspects’ official functions and violated In credibility. on addition doubt rights have constitutional would been evidence, serving impeachment they where state’s highly relevant case repeated claim that also buttressed Milke’s testimony. on Milke’s rested That ev- been of access prejudiced she’d denial orders, idence contained court rather than file, personnel to Saldate’s where more signifi- just testimony,” “motions and is a expected be impeachment evidence could cant, objective fact the state court to reside. This trove court documents ignored by misapprehended ignored. critical claim either Ei- was to Milke’s but post-conviction court. way, ther court’s error resulted determination of the facts. unreasonable the exhibits attached reviewing “highly These overlooked court orders are post-conviction Judge petition, probative petitioner’s and central Hendrix, K. Cheryl who also trial was judge, Taylor, to find a reference to claim.” 366 F.3d at 1001. “unable gently attempted develop Wong, See 667 F.3d in state court to courts. Gonzalez (9th Cir.2011) (W. prosecutors claim Fletch factual basis of a with- 1013-17 er, J., Pinholster, concurring); exculpatory S.Ct. held witness statements viola- J., ("I (Sotomayor, dissenting) Brady...."). we n. 5 tion of Because conclude as withholding report majority intend that the distorted sume does not fact-finding process

suggest as to render the that review is limited to state- so defective, inability finding petitioner’s we need not court record when a state-court con- report develop supporting be considered facts his claim sider whether could itself.”); on federal habeas under this alternative theo- fault of the state court id. 1417-18 ("Consider, petitioner ry- example, a who dili- post-conviction judge Had the state real- “would have been inadmissible extrinsic judicial ized that the documents contained evidence on a collateral matter” findings of mendacity and disre- “would have been inadmissible to show gard rights, for constitutional may she well that engaged detective in the same recognized have their relevance as im- in ‘misconduct’ this ruling case.” This vio- peachment evidence had not been dis- lated Milke’s process rights due because Giglio. After by all, closed as required the evidence would have been highly rele- judge acknowledged that Milke could vant question the critical of whether have used the court question records to Miranda Milke’s case. Saldate violated “specific Saldate about prior instances of The issue of Saldate’s Miranda compli conduct” if “probative the information was ance was strenuously disputed at trial. of the detective’s character for truthful- The jury instructed the to discount was, certainly ness.” And this evidence any of Milke’s police statements to “unless though the court seemed unaware of it. you beyond determine a reasonable doubt While the court held that “defense coun the Defendant made the statements sel would have been bound the detec voluntarily.” In anticipation of this in tive’s questions answers” to the about struction, both sides positions staked out misconduct, these instances of the docu as to whether Saldate violated Miranda. ments would still have been valuable. closing In arguments, defense counsel re hand, With court orders in defense counsel minded jury that Saldate would contin would good-faith have had a for ques basis speak ue to suspects they’d even after tioning prior Saldate about instances right invoked the you counsel—“He told where he had lied on the witness stand. urged that.”—and jury to use Saldate’s Kotz, See Foulk v. 138 Ariz. 673 P.2d failure to interrogation record the as “a (Ariz.Ct.App.1983). 801-02 If Saldate piece further puzzle you to take lies, admitted the his credibility would into account when considering the volun- have impaired. them, been If he denied tariness the statements and considering exposed he would have perju himself to a integrity of an asserted confession.” ry prosecution. If he claimed he couldn’t prosecutor also thought this issue was remember, defense counsel could have important. cross-examination, On he con shown Saldate the documents to refresh fronted Milke about her supposed invoca See Ariz. R. Evid. memory. 612; his State tion of right actually to counsel: “You Hall, Ariz.App. 504 P.2d didn’t ask for attorney reality, an did (Ariz.Ct.App.1973). And if Saldate still you?” Milke insisted that she did. The recall, jury couldn’t would have had prosecutor again asked sarcastically before doubt, reason to only not his veracity, but driving point: you home his “I take it said memory as well. These court orders Later, that out loud?” in closing, pros would have been a game-changer ecutor insisted that Saldate had followed Milke, but the state court grasp failed to relating that, interrogations law significance their apparent because it was requested “if attorney [Milke] had [Sal ly unaware that the documents contained would have Clearly, date] noted it.” both judicial findings rather than allega mere sides considered it highly relevant whether tions. with Miranda in ob complied Saldate had post-conviction court also erred taining supposed confession. holding that court documenting orders Sal- date’s Miranda and other jury being constitutional Given that the asked to violations—which also weren’t disclosed— complied determine whether Saldate had Miranda, II. Claim Federal Court judicial determinations

with pattern in a of Mi engaged A. Court District and other constitutional violations randa court, pressed again Milke district interrogations during would have been impeachment issue undisclosed highly probative. Their exclusion would finally in prying succeeded process denying have violated due of file. personnel information out Saldate’s opportunity pres “a meaningful Milke records presented She court docu- complete a defense.” Crane v. Ken ent and Miranda and menting Saldate’s lies 683, 690, tucky, 476 U.S. violations, which other constitutional she (1986) (internal omit L.Ed.2d 636 citation had pro- obtained state post-conviction ted). history of Saldate’s documented that, argued “[b]y ceedings. She sum- jury have shown the such violations could dismissing claims marily Petitioner’s with- Miranda, habitually he circumvented out hearing, [post-conviction] trial argued Milke in state and federal court. as effectively court defense denied counsel Likewise, repeated these violations should the means to buttress this evidence been admitted to demonstrate that have further of Detective through discovery Sal- outset, planned, from the to con Saldate personnel disciplinary date’s entire illegal interrogation by confronting an duct credibility file.” stressed that “the She alone, tape Milke without a recorder. Re “key veracity” of Saldate were issues” judicial findings that had peated in the case. rights in other inter violated constitutional (1) requested Milke all documents “con- rogations highly would have relevant been cerning the evaluation of Detective Arman- jury’s about deliberations what took (# 1875) do of performance Saldate’s were place when and Milke alone be (2) duties,” “investigations concerning or doors, he emerged hind closed after which contemplated actions disciplinary taken or a claiming to have extracted confession. against Detective Armando Saldate” and pat Exclusion of the of Saldate’s (3) assessing “credibility, Saldate’s violations, of had this evi tern Miranda strengths as a witness trial, been and/weaknesses dence offered defense judge a possible jury.” effects on right would have violated to due and/or The district court ordered the state to process. produce for in camera review “Saldate’s court fails “to When state consider personnel file and Internal Affairs in- record,” key aspects of it an makes vestigation(s) “any of Saldate” as well as “unreasonable of facts.” determination credibility assessments Saldate’s main- (internal Taylor, 366 at 1008 quota F.3d Depart- tained Police [the Phoenix omitted). may tion marks more “[W]e no ment].” uphold such factual determination than may produced just we set aside reasonable state-court two of The state Saldate’s fact-finding.” though Id. The state court’s failure annual reviews even Saldate had recognize judi had held job twenty-one years that Milke attached for before findings of to her All of petition cial misconduct Milke’s trial. Saldate’s annual re- an post-conviction produced they for relief was unreason have views should been able determination of the facts and thus all apparently contained assessments of separate job presents refusing performance basis Saldate’s that bore on his AEDPA credibility. accord deference the state The state never has offered explanation impeachment-evi produce court’s denial Milke’s for its failure to addition, claim. remaining reports. dence state (Internal omitted.) produced five-day of Saldate’s sus- notice citations Milke also oyer- complained judge, that the state who pension taking sexual liberties awith post-conviction saw both trial and proceed- motorist he and then to his stopped lying ings, “disallowed discovery Saldate’s supervisors it. The has not about state personnel file” at both stages the case explained why highly report this relevant and “would not allow defense ac- counsel not before produced Milke’s trial. anything cess to personnel rightly The district files.” Milke’s brief concerned further noted that it wasn’t until federal habeas that Milke “fi- that so few produced documents been nally “portions obtained” per- of Saldate’s response order. to his He ordered the sonnel files.” state check attorney general’s office to Her opening brief didn’t cite Brady or with Department the Phoenix Police Giglio, descendant, but did cite their produced. whether all records had been Kiszewski, United States v. 877 F.2d 210 days later, police Six the Phoenix chief and (2d Cir.1989): attorney one of his lieutenants wrote to the [R]eliable evidence of a law enforcement general’s saying “every office document officer’s misconduct in unrelated cases is subject order in has fact been [the] to impeach admissible that officer’s produced.” police department’s The state- credibility, particularly “where credibili ment was not under oath and no offered ty is central in issue the case and the explanation for how someone work could presented evidence at trial consists of Department for the Phoenix Police for two opposing presented by stories the defen decades such a and have short trail. paper government dant and agents.” United Kiszewski, The district pursue court didn’t mat- States 877 F.2d (2nd Cir.1989). [sic] ter. omitted.)

(Emphasis prosecution B. Kiszewski didn’t turn Appeals Court of so, any Brady material, over shortly be brief in opening Milke’s our court com- trial, fore the defense subpoenaed per plained that had been she denied access to sonnel files two FBI agents. 877 F.2d Saldate’s file: at government 215. The admitted that agents one of complaints had a few Saldate, After cross-examining defense him, against including one for which he discovery counsel sought person- of his Still, reprimanded. gov been Id. nel impeachment records for purposes. nothing ernment turned over and the dis Judge Hendrix ordered an in camera trict compel court refused to camera inspection any file only as to Id. The review. Second Circuit found a training he received over the five prior Brady violation. Id. 216. Kiszewski years, any Depart- Phoenix Police proposition has been since cited for the policies, ment procedures guidelines that, Milke’s, under circumstances like interrogations effect on December trial must court do more than take the 3, 1989[, day of the interrogation]. government’s Brady word that material None of material provided this was court doesn’t exist—the must review the defense counsel. files in question.4 See, Bland, Brooks, case”); e.g., United States v. F.3d United States v. 966 F.2d (7th Cir.2008) (citing (D.C.Cir.1992) (summarizing Kiszewski's Kisz holding rely that a “court should not on the holding appropri ewski in camera review government’s representations regarding Bra “when, prosecutor’s ate after denial that dy materiality potential impeachment evi existed, Brady prosecutor material revealed credibility dence where is the central issue into doubt is favorable for this in her ernment’s case argued claim

Milke further Strickler, “Brady Brady See 527 U.S. purposes. she said that reply brief where 290, 119 progeny require the Maryland personnel and its S.Ct. 1936. Saldate’s impeachment material ev- investigation State to disclose file an internal re contained ruling state suspended and that court’s “[t]he idence” had been port showing he (Internal Brady.” clearly contrary to days. report that Sal- explains five omitted.) citation motorist had a date a female who stopped faulty possibly outstanding taillight claim is Having established go checking let her without warrant. He by the state court decision not barred go quite her isn’t accu her warrant. Let (which contrary clearly estab- both they to a suggested rate. Saldate move an unrea- lished law and based on federal and then spot less followed facts), conspicuous sonable determination there, her to he leaned into her it. Once that she preserved her claim was car, with her and acted in a us, “took liberties” we turn the merits. raised it before an officer.” of “unbecoming manner She C. Claim on Merits fered to him later for an “act of meet up sexual Saldate showed imposes an “ines intercourse.” process Due rendezvous, prosecutor “to dis for the but woman didn’t. capable” duty on the Instead, woman, known, rising perhaps to a close favorable someone— reported importance.” Kyles, 514 once she free of Sal- got material level Saldate — 438, police. 115 S.Ct. 1555. Favorable to the U.S. at date’s misconduct and im exculpatory evidence includes both Questioned by investigators, Saldate material that is relevant either peachment the incident until he steadfastly lied about guilt Bagley, to See 473 punishment. or image failed a test. of polygraph “[Y]our 674-76, 3375; Giglio, 105 S.Ct. U.S. at honesty, and overall reliabili- competency, prosecutor 763. The U.S. at 92 S.Ct. one of ty questioned,” must be Saldate’s knowledge Brady any is with of charged by supervisors report signed a wrote prosecutor’s the office or material of which city chief manager police. the and the of police agency the is aware. investigating misconduct, The his lies facts of Saldate’s Virginia, Youngblood See v. West 547 U.S. investigators and this assessment 869-70, 126 S.Ct. 165 L.Ed.2d certainly supervisor his would have been curiam). (2006) (per jury trying useful to a to decide whether telling Saldate or Milke was the truth. A violation has three ele Strickler, 281-82, only report Not the show that Saldate does 527 U.S. at ments. First, lying compunction during has no about the S.Ct. there must be evidence 1936. duties, defense, it course of official discloses a that favorable to the either his is exculpatory misogynistie toward female impeaching. because it is attitude civil- Second, at 1936. the Id. ians and to abuse authori- willingness a government willfully must have or inadver get to All this is ty what he wants. tently produce to the evidence. Id. failed Milke’s highly consistent with account Third, 282, 119 suppres the S.Ct. the interrogation. prejudiced sion must have the defendant. lawyers The uncov- court orders Id. ered are favorable evidence that was also prosecution but the Any available to the state 1. Favorable evidence. argued did not As Milke to gov- that would tend call the disclose. ”). plaints was ‘on the take’ agent that witness’s file com- that he FBI contained court, post-conviction proved state the orders dant left around p.m., he hadn’t show that Saldate “has lied under oath fight. killed the victim in their order to secure conviction or to further case, grand the same jury asked all prosecution.” Those cases involved Saldate whether the defendant drunk was County Attorney’s Maricopa Office and crime, at the time of the which bore on Police Department Phoenix same —the whether the defendant spe- could form the agencies involved in prosecuting Milke: cific first-degree intent for murder. Sal- (cid:127) direct, v. King. State On Saldate told date testified that defendant had said County Maricopa prosecutor Paul Rood drinking However, but not drunk. unwilling been the defendant hadn’t defendant had told Saldate that been he’d questions during interrogation. answer beer drinking smoking marijuana, cross, On the defense counsel read back drunk too to remember some report showing Saldate’s own de events from that night. judge found had, fact, fendant said he wasn’t going fair presentation “a was not made in questions. answer more The trial connection with the evidence concerning out judge portion threw of the confes the identification of the defendant suspect’s sion request that followed the son,” victim’s and that “the end evidence was the interview: statements “[T]he fully fairly made not up presented regard time when the defendant with longer advised the detective he no wished to possible defendant’s intoxication.” Or- questions answer his are admissible. Granting der Mot. for New Finding of they’re Thereafter not admissible.” Tran Cause, supra. Probable Based on largely script Hearing of Voluntariness statements, two judge false King, State v. CR90-00050 (Ariz.Super.Ct. probable threw out the finding cause. 22, 1990). Jun. (cid:127) v. Rodriguez. State told (cid:127) v. Reynolds. State found grand jury that the murder victim had that Saldate’s false the statements times, was, been shot four even though it grand jury “denied his [the defendant] wrote, judge “undisputed” as the that the right process a to due and fair impar- and victim once. only was shot Order Grant tial presentation of the evidence.” Order Cause, ing Redetermination of Probable Granting Finding Mot. for New of Proba- (Ariz.Su Rodriguez, State v. CR Cause, ble State v. Reynolds, CR88-09605 20, 1986); per.Ct. Nov. Mot. for Redeter 1989). 27, (Ariz.Super.Ct. Feb. Two false 4, mination Probable Cause at v. State particularly judge: statements worried the Rodriguez, No. CR 161282 (Ariz.Super.Ct. grand jury Saldate told the that vic- the 1986). 20, Maricopa County Oct. The At tim’s son couldn’t at remember what time torney’s Office it had said never intended house, drag saw defendant enter the to claim there was more than shot. one upstairs leave; the victim and then son the Resp. to Mot. for Redetermination of say only could that it was late at night, 4, Rodriguez, at State v. Probable Cause according to Saldate. That was statement 13, (Ariz.Super.Ct. No. CR Nov. fact, false. the son told that detectives 1986). blaming Instead of for Saldate the the left apartment defendant the about 8 statement, false prosecution the is “[took] p.m.; knew the son this because defendant transcription grand sue with the the Garry Shandling turned off on Show jury surely proceeding, testifying way out. Saldate’s omission was criti- detective, Saldate, cal other Armando of the Phoenix because witnesses had seen the victim midnight; Department, alive after if at- the defen- Police this State’s and/or presented the caught prosecutor and corrected nonetheless

torney would have trial, suspect’s Id. to Saldate Or representation.” such an incorrect statement Trial, v. Granting der Mot. for New State buy judge it. He found The trial didn’t Yanes, (Ariz.Super.Ct. CR-130403 No. the tran “reporter’s notes and 1984). 26, July court vacated Jury” script of the Grand were accurate At conviction and ordered a new trial. Id had, fact, Saldate said there trial, suppression hearing new Mot. for Granting were four shots. Order “those suppressed the court statements Cause, Probable No. Redetermination of made the defendant Armando Sal- 1986). (Ariz.Super.Ct. CR-161282 Nov. Granting Suppress, date.” Mot. Order statement, As a result of this false Yanes, (Ariz.Su No. v. CR130403 State judge proba a ordered redetermination 26, 1984). per.Ct. Nov. ble cause. (cid:127) interrogated State v. Conde. Saldate (cid:127) Rangel. judge agreed v. A with State suspect care who intu- intensive prose claim defendant’s that Saldate and lines. bated and connected intravenous Turoff) (Lawrence grand cutor misled suspect that the drift Saldate testified jury by selectively recounting defendant’s consciousness; ing “in out” of several Granting Re statements. Order Mot. to times, had to him his get shake “to mand, No. Rangel, State CR89-08086 of Pretrial Motions Transcript attention.” 16, 1989); to Re (Ariz.Super.Ct. Oct. Mot. Conde, 17-18, Nos. 88- State CR Rangel, mand at State v. No. CR89- 1989). 05881(B), (Ariz.Super.Ct. 90-475 Oct. (Ariz.Super.Ct. CA Sept. 1989). Nonetheless, him prosecu Saldate read held Saldate’s materially warnings tor’s statements had affected the Miranda and went on with grand jury’s really deliberation and remand interrogation. “I don’t know for a finding probable ed the case new responding whether he wasn’t because he cause. or rights didn’t understand his wasn’t re sponding because the medication he was Giglio make The above orders out a on,” By Saldate testified. own own, pre- their violation on but Milke also admission, “it was obvious that [the defen Giglio additional sented evidence—docu- pain.” was in The nurse told the dant] four ments from cases where courts found suspect give that she couldn’t him more Saldate had violated the Fifth Amendment until pain medicine after he finished talk the Fourth Amendment the course of ing to Saldate. When the case came to interrogations. Again, cases all those trial in the court held the statement Maricopa Attorney’s County involved interrogation “involuntary from this Department: Office and the Phoenix Police inadmissible,” the Arizona Ap Court of (cid:127) State v. Saldate in- Yanes. admitted published peals opinion noted in three terrogating suspect strapped who was Conde, 30, years later. State v. 174 Ariz. bed, a hospital apparently incoherent after 843, P.2d (Ariz.Ct.App.1992). 845 a skull suffering Transcript fracture. of (cid:127) King. kept asking State v. Yanes, Trial Motions and at State v. questions long after the defendant indicat- 31, (Ariz.Super.Ct. May No. CR-130403 1983). doctors, longer ed he no wanted to The by answer. When interviewed name, court ruled that those statements were suspect didn’t know his own year Transcript current or name of inadmissible. of Voluntariness president, Relief, 35, Hearing supra. Pet. at This is for Post-Conviction Attach- the same 6, Yanes, ment A at case in the of State No. CR- discussed earlier context 1983), (Ariz.Super.Ct. Supra p. Nov. but Saldate’s false statements. 1013. (cid:127) State Jones. the course of a a new trial and for judgment notwithstand- verdict, investigation, ing murder Saldate directed an and the might outcome juvenile well have been place officer to himself in an different. room,

interrogation juvenile where the The Jones order —and the other orders handcuffed to a Granting table. Order the state failed to produce—would Jones, State v. Suppress Mot. to No. likely also have affected the judge’s deci- 90-05217 (Ariz.Super.Ct. CR Nov. sion whether to sentence Milke to death. 1990). This, that, despite the fact in the As the Supreme Court made clear in Bra- view, trial police court’s “the clearly had dy itself, evidence must be disclosed if it is linking no information the Defendant “material punish- guilt either disappearance the murder or Brady, ment.” of vic- [the 373 U.S. at tim],” added). and even the Maricopa County (emphasis At- Saldate’s credibil- ity torney’s certainly Office punishment. conceded that it had was material to no For example, probable sentencing Id. The cause for the detention. allocution went into detail legal about the court errors that suppressed the murder confession as led to her conviction. In pleading for her illegal “the fruit of the arrest” and con- life, particularly she was critical of Saldate. juvenile’s demned the illegal detention and She said: “I’m disappointed that the Court the interrogation that followed as “a show allowed the use of a purported confession flagrant Id. misconduct.” to be against used me when there wasn’t The court order suppressing the confes- prove evidence to this alleged confes- 29, 1990, sion was dated just November sion.” Milke continued: 12, 1990, after Milke’s October conviction Although Mr. Saldate testified that he 18, 1991, January but before her sentenc- follows laws guidelines, he does not. ing. Though too jury’s late to affect the He didn’t follow a direct order from a verdict, this order pro- should have been sergeant tape-record an interview Giglio duced under because Saldate’s cred- with me. officer An[] with over ibility remained a day live issue. On the years experience should also know sentencing, court entertained better than to interview a female sus- Milke’s motions for a new trial and for pect a closed room without a wit- judgment notwithstanding the verdict. ness .... very This crime was serious judge motions, denied both explaining I feel Mr. extremely Saldate was there was no error in allowing Sal- Miranda irresponsible. my It is true date’s statement about the confession. rights were read to me I ap- and was said she “does not believe that prised my Fifth privilege Amendment the Defendant request made a for an at- However, to have present. counsel torney prior to or during her I questioning requested when privilege, such a that, Detective immediately ignored Saldate” and while “a me as if I said good nothing. deal of time and expended effort was

by the defense reports to discredit Had Milke been able to present Saldate’s made Detective Saldate as to other menagerie of lies and constitutional viola- witnesses[, t]hose efforts to discredit his tions, her may allocution well have reso- note-taking and report-writing and accura- sentencing nated with the judge per- and cy were not successful.” Had the Marico- Indeed, suaded spare her to Milke’s life. pa County Attorney’s produced Office the trial judge acknowledged the herself that Jones, suppression order in Milke could she was considering “legitimate questions in support have used it factor, her motions for concerning guilt” mitigating as a 1016 piece a of evidence.” questions no disclose favorable such

only to find she 439, at 115 S.Ct. U.S. 1555. about 514 the known guilt. Had about documented'misconduct, may she Saldate’s knowledge charged state with the The is ques- developed “legitimate have such well in material impeachment there was guilt.” concerning tions all, the personnel file. After Saldate’s this evi- eventually produced some of state ele The second Suppression. and proceedings in habeas federal dence or violation is the willful Brady ment of a it not have never claimed that could has prosecutor of the inadvertent failure it trial. in time Milke’s disclosed to the defen favorable disclose evidence failed can state There be no doubt the Strickler, 281-82, 527 at dant. See U.S. obligation producing in its constitutional see, 1936; e.g., Giglio, 405 U.S. by the request this material without (“[Wjhether 154, the non 92 763 at S.Ct. defense. negligence a result of disclosure was responsibility pros pro- an design, obligation is the The state also had ecutor.”). showing the long have held duce documents We in court misleading false and statements Brady obligation “to government has juries, as the per grand in the and before as well favorable evidence produce any showing the Fifth Amendment an documents officer. United sonnel records” (9th Fourth he com- Cadet, 1453, Amendment violations 1467 v. 727 F.2d States interrogations. prose- The Cir.1984). during mitted have to A defendant doesn’t of this mis- cutor’s office no doubt knew or im request exculpatory make criminal it had harmed conduct because duty to dis peachment evidence: “[T]he police The must have prosecutions. applicable evidence is [exculpatory] close known, too. request though there has been no accused, encompass the duty ... Indeed, timing suppression evidence well as excul impeachment es the cavalier order Jones underscores Strickler, 527 U.S. at patory evidence.” Attor Maricopa County attitude of the (internal 280, 119 1936 citation omit S.Ct. duty its ney’s Office toward constitutional ted). govern also held that “the We’ve pp. See impeachment to disclose evidence. duty personnel ment has a examine argued supra. prosecution 1015-16 upon for their request files a defendant’s motion on against suppression Jones Henthorn, production.” United States v. 16, 1990, lost, resulting November (9th Cir.1991). 29, F.2d If suppression of the murder confession. material prosecution isn’t sure whether 2, Granting Suppress Mot. to Order personnel (Ariz.Su file rises thresh Jones, v. State No. CR 90-05217 old, 1990). “it may submit information per.Ct. prosecutor’s Nov. inspection.” trial court for in camera preparing then for a second began office (internal Cadet, quo 727 F.2d 1467-68 hearing, which would determine whether omitted) (quoting body, tation marks United shell key physical evidence—“the (9th Gardner, sup v. 611 F.2d be casings, States and shovel”—would also Cir.1980)). Jones, held Supreme As the Court v. 1 CA-CR pressed. State Nos. (Ariz. 90-1922, prosecutor “a 91-0345 at Kyles Whitley, anxious CA-CR 1992).5 hap- Ct.App. close wind will Nov. All this was tacking about too suppression hearing place peals orders. State 5. The take on affirmed both second would 23, 1991, January just days Jones, after sen- 1 CA-CR 1 CA-CR Nos. tencing. suppress court The trial decided evidence, physical ap- and the court of 30, 1990, pening May between time of Milke’s convic- filed on just came about the 12, 1990, tion on October and her sentenc- time that handling Rood was Saldate’s 18,1991. January ing on That means even King. misconduct in The fact that Rood attorney working as Milke’s hard to litigating yet another instance of Sal- off a death stave sentence and win new in date’s misconduct the summer of 1990— judgment notwithstanding trial or the ver- albeit one where the trial court went the dict, the prosecutor’s police office and the way, state’s being before reversed —is all actively dealing were with mis- the more reason to conclude that Rood and in conduct another murder case. Id. at 7. colleagues in Maricopa County At- torney’s Office were intimately familiar suppressed When Jones court confession, with Saldate’s pattern surely murder this must have misconduct. Maricopa County Attorney’s reminded the And, as the state absorbed the loss of Office and the Phoenix Police Department the Jones confession in November 1990 propensity of Saldate’s to commit miscon and prepared arguments to physi- save the Indeed, Rood, prosecutor duct. Paul cal evidence in suppression, Jones from Jones, was also the in prosecutor King, must have occurred to Rood or someone 1990, where June Saldate had been prosecutor’s office or the police depart- caught in a lie about violating Miranda. (or both) ment that Saldate was also the 1013, pp. And, See supra. 1014-15 at key witness in the high-profile against case about the King, same time as Rood also Debra Milke—a case where the defendant suppression received a motion in State v. trial, was still at actively fighting for her Mahler, a Saldate case in which the defen life. Yet no one saw fit to disclose this or dant made what the Arizona of Ap Court any of the other instances of Saldate’s peals called “an unequivocal invocation to lawyer. misconduct to Milke’s remain silent.” No. 1 CA-CR at Even if there somehow weren’t 2, 1992). 4 (Ariz.Ct.App. case, Oct. In that knowledge misconduct, actual of Saldate’s kept speaking with the defendant inadvertent failure to enough disclose is invocation, after the claiming “he [Sal Strickler, for a Brady violation. See did not want date] an admission but 282, at U.S. That 1936. just wanted story.” Mahler’s side of the court documents showing Saldate’s miscon Id. The Arizona Court of Appeals held that duct “Officer Saldate’s intent were available in public was clear ... he record wanted additional obligation statements from Mahler. doesn’t diminish the state’s This right conduct violated produce Mahler’s Brady. them under In determin remain silent.” Id. The trial court didn’t ing whether evidence suppressed has been confession, suppress the and the defendant for purposes Brady, our court has asked was convicted. But the Appeals Court of enough whether the defendant “has infor held that the confession should not have mation to sup be able to ascertain the been admitted and remanded the case. Id. so, posed Brady material on If his own.” 2, there’s no violation. United States Aichele, (9th Cir.1991); 941 F.2d

Because the Court of Appeals Mahler Bracy, see also United States v. didn’t hand down its until 67 F.3d decision (9th Cir.1995) trial, after Milke’s we 1428-29 crim (holding don’t count this case as Brady material. But inal history suppressed Mahler is still wasn’t because the significant motion, because suppression government ... all the infor- “disclos[ed] 1, 2, 1992). (Ariz.Ct.App.

91-0345 Nov. 1018 high-profile turned over—lists six cases necessary for the defendants to mation material”); addition, alleged Brady person- the the handled. discover F.2d Dupuy, States could cases so cor- United nel file have disclosed (9th Cir.1985). a defen- n. 5 Where they misconduct that rupted Saldate’s information to enough have dant doesn’t argued, unfit for As Milke the were court. Brady material with reasonable find the post-conviction found in court records she produce the state’s failure diligence, just ‘tip “the the ice- proceedings were suppression.6 is considered interroga- berg’ Detective Saldate’s practices.” But without the the court able discover tion/interview Milke was file, know, can’t personnel full we detailing misconduct Saldate’s documents now, ten the full of the misconduct that approximately a team of extent only after post-conviction proceedings impeach could have been used to Saldate. researchers through spent nearly sifting 7000 hours Prejudice. prejudice 3. To find at- post-conviction Milke’s court records. necessary it Giglio, under isn’t this team to the clerk of torney sent have jury find that would come out to search for Saldate’s name court’s offices differently. Kyles, 514 U.S. file from 1982 to every criminal case It there “a S.Ct. 1555. suffices be eight day hours a The team worked 1990.7 probability of a different re reasonable months, turning up half for three and a , guilt penalty. as to or Id. sult” either re- involving Another 100 eases Saldate. omitted). (internal Prej quotation marks mo- reading spent searcher then a month government’s udice exists “when the evi transcripts those cases tions and from dentiary suppression undermines confi examples of Saldate’s misconduct. A find dence the outcome of the trial.” Id. possi- couldn’t reasonably diligent lawyer omitted). (internal quotation marks these in time to bly have found records use Thus, the docu- confession, them at Milke’s trial. alleged reported as describing and his Mi- ments Saldate’s lies Saldate, only direct evidence and other constitutional violations randa But linking Milke to the crime. the con- interrogations the course of were during word, only as good fession Saldate’s suppressed. only claims to have as he’s one who Milke and there’s no record- heard confess

Indeed, suppression personnel file written other evi- ing, statement suppression of the court documents confessed. Saldate’s dence Milke together. given run Had Milke been credibility was to the state’s case crucial person- evaluations in full run of imagine any- Milke. hard to against It’s file, cases Sal- nel would have found she jury’s thing more example, on. relevant date worked For —or just judge’s whether to evaluation—one of two evaluations believe —determination jected prosecutor 6. Circuit to the same the claim that the had “no The Second came con- suppression public rec- clusion about the duty to affidavit ... disclose the because Payne, States 63 F.3d 1200 ords. In United public Id. was in court records.” at 1208. (2d Cir.1995), a that she had witness testified test was counsel “was whether defense packaged drugs Id. for the defendant. required of facts have aware that would him case, But in her criminal she 1205. own through to discover affidavit own dili- saying submitted affidavit she'd no investigation.” gent Id. at 1209. drug in the The defen- involvement trade. Id. case dant knew of witness's criminal resigned police 7. Saldate from force on public in the could have found affidavit July Still, Id. at the court re- record. 1208-09. camera, Saldate than evidence Saldate lied district court in and the district trampled under oath and the constitutional court shall review them to determine rights discharging of his official suspects they Brady whether are relevant to or single juror If a duties. found Giglio, explicated as in our opinion. De- untrustworthy based on the docu- fense counsel be shall allowed see the habitually mentation that he lied under to argue why documents and each might advantage oath or that took of women Brady Giglio be or material. The district power, he had in would his there have may, discretion, protec- court its enter a Likewise, hung jury. been least a if requiring tive order all contested docu- disclosed, had been it may this evidence ments to filed be under seal and to be a well have led the to order new designated Attorneys’ Eyes Only,” “For trial, judgment notwithstanding enter setting such other conditions as the or, least, impose verdict a sentence less necessary district court finds proper, prosecution than death. The did its best while district court decides whether impugn credibility. It wasn’t the contested materials are relevant entitled, time, at the same to hide the Brady Giglio. or evidence that undermined Saldate’s credi- After the has state turned over these bility. records, provide it shall a statement under Also at again, issue Saldate’s claim— from police certify- oath a relevant official unsupported by evidence—that Milke ing that all of the records have been dis- rights waived her Miranda and didn’t ask omitted, closed and has been none lost or Beyond a lawyer. its effect on Sal- destroyed. If relevant police official is date’s credibility, of Saldate’s fal- unwilling provide unable or a certi- such Miranda, his disregard sifications and of fication, the court district shall hold an highly would have been relevant to the evidentiary hearing to determine whether alleged determination whether Milke’s of any and, produced, records have not been been lawfully confession had obtained. so, why. if Petitioner’s shall counsel be suppression of evidence of Saldate’s given period discovery pri- reasonable of qualifies preju- lies and thus misconduct purposes Giglio. hearing. dicial for of panel ju- or This retains any appeal arising risdiction from over this III. Conclusion remand. Milke is entitled to relief. habeas We Upon production of the certification de- therefore REVERSE decision or the conclusion of the scribed above evi- district court and REMAND with instruc- dentiary court hearing, the district shall tions to writ of GRANT conditional ha- order Milke released unless the state noti- corpus setting beas aside her convictions fies the it days court within 30 intends writ, issuing and sentences. Prior to Milke, retry and actually commences the district court shall order the state to days. Milke’s retrial within 90 provide po- Milke’s counsel with Saldate’s copies The clerk court of our shall send personnel lice records all of covering opinion of this to the United Attor- States service, years including pertain- records ney for the of Arizona and to the District ing any disciplinary or Internal Affairs Attorney Assistant United States General investigations and records pertaining to Division, Rights possible of the Civil performance If the state evaluations. be- investigation into whether Saldate’s con- lieves it the materials is or- duct, supervisors and that of his and other provide dered to are not to Brady relevant officials, Giglio, may present a pat- them to the state and local amounts to federally protected violating the tern of residents.

rights Arizona KOZINSKI, row, in- Judge Styers death to concurring: Chief James continued nothing sist that “Debbie had to do with it a disturbing This is case. There’s no only the truth.” The evi- [sic] thats linking Debra Milke to physical evidence dence Milke to murder of her linking crime, has maintained her and she Armando son is the word Detective day innocence she was arrested. since Saldate, police long Jr. —a officer with actually Neither of the men who did the misconduct lying includes history of killing against Roger testified Milke. accepting under as well as sexual oath testify refused because his “testi- Scott to lying exchange leniency for favors mony would be what he felt was the not many years truth.” After on about it. spending

Equally troubling are unortho- Saldate’s Saldate testified that he doesn’t have to methods. interrogation dox Saldate has stop talking suspects just they “because from who were people obtained confessions attorney. asked for an That would be ” intoxicated, pain medi- hospitalized and on ridiculous.... What I find ridiculous is 1014; Op. Appendix. cation. See Saldate this man—with his track record of juvenile once ordered a to be detained trampling rights basic constitutional —is room, interrogation where he was hand- interrogate sent a suspect without a table, though police cuffed to a even tape recorder, recorder, a video a witness linking had “no information the Defen- objective other means of document- Granting dant” to a Order Mot. to crime. ing interrogation. Jones, No. Suppress State CR 90- supervisor him to asked record 1990). (Ariz.Super.Ct. Nov. interrogation, yet Saldate didn’t court suppressed trial the resultant mur- tape even take a recorder with him. illegal der confession and called the deten- Florence, Arizona, When arrived flagrant “a tion show of misconduct.” Id. him, waiting where Milke was he didn’t It suppressed at 3. later resultant either, obtain a recorder there evidence, too, physical and the Arizona though they readily he knew Appeals suppres- affirmed were avail- Court both orders, condemning “purposeful sion able. Saldate claims that Milke refused to cause, lacking probable arrest for the recorded, have the conversation but admits improper investigation.” motive State “basically that he didn’t want to record Jones, 90-1922, 1 Nos. 1 CA-CR CA- anyway.” why And not? “a tape Because Nov. (Ariz.Ct.App. CR recorder is an to get obstacle [him] 1992). case, In another Saldate admitted truth” and so “it’s practice [his] never interrogating suspect strapped who was course, tape to use a being recorder.” Of bed, a hospital appar- incoherent after recording left with no is an obstacle for us ently suffering a skull fracture. See Tran- truth, get but tells us not Yanes, Trial, script of State v. No. CR worry: going conversation was “[The] 130403, (Ariz.Super.Ct. May at 23-25 manner, be to noted me a truthful so 1983). tape there no really need for record- Then practice there’s Saldate’s of disre ing.” Right. garding the to remain right silent when No present other officer was for the by suspects questioning. invoked he’s interrogation; through no one watched a Appeals Arizona Court of described one mirror; two-way no mi- hidden camera or example such a where defendant “made an crophone captured happened what inside unequivocal silent,” to invocation remain interrogation the room. Saldate never yet pushed interroga Saldate on with the asked her put Milke to confession writ- tion, he insisting only that wanted the ing single or initial a sentence acknowl- of story.” defendant’s “side the State v. edging she had confessed. Nor did Milke Mahler, (Ariz. No. 1 at 4 CA-CR sign a Miranda waiver. Saldate testified 1992). Ct.App. Oct. The trial court no ... that document we had “[t]here confession, suppress didn’t the and the available to where “we could have a us” defendant was convicted of murder. Id. at suspect sign they rights.” that their waive Appeals 1-2. But the Arizona Court of practice having And a what of the of sus- right “[t]his held conduct violated Mahler’s sign the card? “I pect officer’s Miranda remain silent” and remanded his case never knew ever illegally happened,” because of the Saldate obtained confes case, my sion. Id. at In happened Milke’s testified. “Never with case This, if it took convincingly, in.” lie that’s what I involved any other case was or years high-profile on a twenty-one with to nail down conviction a from an officer after the Phoenix Police force. Soon the case? destroyed that reliable tant confession be and suspect high-profile in a murder case lawfully obtained. himself, tape a or a wit- without recorder judge Both the district and the state interrogation ness. how could an be And judge telling trial that Saldate was found extracted, concluded, a confession truth when he testified Milke signed waiver? In a

without a Miranda rights waived her Miranda and didn’t ask Circuit, on I quarter century the Ninth lawyer. for a I discount the state court’s can’t remember another case where the finding it was made with no because prov- confession and Miranda waiver were repeated knowledge of Saldate’s instances by nothing say-so single en but the of a lying professional under and other oath par officer. Is this for the Phoenix Police hopes judge misconduct. One would Department or was called in his Saldate on skeptical of Saldate’s ac- day off his knew he have been more supervisors because rules, could be on count had she aware that counted to bend the been case, disciplined taking advantage of a fe- pressure in which Saldate was called lying male motorist and about it to his especially in given much responsibility. supervisors, habitually and that he lied in It highly is doubtful he would have noted court, interrogation process abused an invocation that would have undermined Miranda. disregarded alleged confession. Far more likely, Saldate had learned from I earlier cases that impressed by

Nor am the district Miranda violation could re- documenting The finding. judge court’s district suspension aware of Saldate’s and noted it sult in the exclusion of a confession and *4, passing, Findings in and Order at make him object judicial ire. This Ryan, Milke v. 98-60-PHX-RCB, No. CV may explain why also hastily Saldate so (D.Ariz. 29, 2010), WL Jan. destroyed the original notes from in- specify but he didn’t the nature of the terrogation. If they contained his habitual misconduct, nor did he acknowledge that documentation of Miranda and other con- supervisors Saldate’s had determined that stitutional during violations the course of “image honesty, competency, his and interrogation, may thought he have it wise reliability questioned” overall must be as a not to have them available to impeach his result of the misconduct. It’s say hard to official report. gave weight he it due weight at —or Finally, the judge district nothing said all. at all about Saldate’s numerous instances The did note Saldate’s Mi judge district lying oath, under which prior tainted randa violations but, somehow, construed criminal cases. I find this omission inex- supporting them as credibility. plicable and conclude he must have over- reasoned that when Saldate had looked them. Had the district judge taken violated Miranda past, he had ad account, these incidents into might well mitted it in reports: his testified “[Saldate] have finding. made different never asked for an attorney. [Milke] had, If she Saldate would have it I would noted reverse the district court’s find- and included the supple information his ing that knowingly rights Milke waived her mental report. He had done so in other Arizona, under Miranda and Edwards v. cases, including cases where he continued 451 U.S. 68 L.Ed.2d suspects to converse with they after (1981). “confession,” if it was had invoked their right to remain silent or all, illegally. obtained was extracted right attorney. their to an In some of There can be no serious claim that admis- these cases evidence was suppressed as a sion of the confession was harmless. I during result of Saldate’s conduct in would therefore set aside Milke’s convic- (internal terrogations.” Id. at *6 citations separate ground tion on the relied omitted). The district court also found illegally-obtained on an confession that that “it practice was Saldate’s note occurred, probably never and bar use of if reports suspect right his invoked his during any so-called confession retrial remain right attorney. silent or his to an of Milke. The fact that report this case does not contain such a notation supports

testimony that Petitioner did not ask for attorney interroga the outset of the

tion.” Id. at *11.

I find this backward reasoning unper- suasive. This was a high-visibility, high- notes interrogation, the just It’s not fairness the defendant questioning took supposedly while pro- objectively calls for an verifiable Milke, absolutely con- nothing so we have securing confessions and other cess for supposed confes- temporaneous with the criminal have cases. all a evidence We sion. justice our criminal ensuring stake in effect, interroga- Saldate turned reliably system separates guilty from box, leaving room into a black us no tion Letting police get away with the innocent. proof hap- as to what objectively verifiable manufacturing evi- planting confessions All we have are the conflict- pened inside. only convicting not the inno- dence risks of a defendant with an obvi- ing accounts helps guilty avoid detection cent but to lie and a detective whose ous reason again. and strike process lawful is documented disdain for of feel confi- people Could Arizona after of un- lying one another instance taking only life dent in when oath other misconduct. der hangs on which her conviction is thread justice civilized system No of should of a with a record policeman the word of evidence, flimsy on depend have to such disrespect dishonesty and law? quite possibly by dishonesty tainted or ov- them, cops, and those who tolerate Bad erzealousness, to whether to take decide put position. all of us in an untenable liberty. The someone’s life or Phoenix if may guilty, well be even Saldate Milke supervi-' Department Police and Saldate’s her out up made confession of whole cloth. of having sors there should be ashamed all, it’s After hard understand what cop to a to misbe- given free rein lawless Styers Scott would have had reason again again, undermining have killing four-year-old boy. Then integrity system justice they were again, have they what reason would As uphold. Maricopa sworn to should protect they guilty? her if know But she’s County Attorney’s Office, which continued jury I seriously would have con- doubt prosecute Saldate’s cases without both- Milke the purported victed without confes- pattern ering to of misconduct. disclose Indeed, confession, sion. without Indeed, given long history enough support not there’s rights suspects, trampling the one won- why very impor- is conviction. Which it’s how interrogate ders Saldate came to

Case Details

Case Name: Milke v. Ryan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 14, 2013

Citation: 711 F.3d 998

Docket Number: 07-99001

Court Abbreviation: 9th Cir.