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Michael D. Kimerer #002492 KIMERER & DERRICK, P.C. 1313 East Osborn, Suite 100 Phoenix, AZ 85014 Telephone: (602) 279-5900 Facsimile: (602) 264-5566 mdk@kimerer.com Lori L. Voepel, #015342 JONES, SKELTON & HOCHULI, PLC 2901 N. Central Ave., Suite 800 Phoenix, AZ 85012 Telephone: (602) 263-7312 Facsimile: (602) 200-7087 lvoepel@jshfirm.com IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA STATE OF ARIZONA, Plaintiff, vs. Case No. 1989-012631 DEFENDANTS MOTION TO DISQUALIFY MARICOPA COUNTY ATTORNEYS OFFICE AS PROSECUTING AGENCY IN THIS CASE (Oral Argument Requested) (Assigned to the Honorable Rosa Mroz) Defendant, Debra Jean Milke, moves this Court for an Order disqualifying the Maricopa County Attorneys Office from prosecuting this case based on the conflict of interest created by their own misconduct in this case, and the significant political, public and financial interest they have in the outcome of this case. This Motion is supported by the attached Memorandum of Points and Authorities.

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DEBRA JEAN MILKE,

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Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES RELEVANT FACTS & BACKGROUND Debra Milkes conviction for conspiracy to murder her son was overturned, in a published opinion, by the United States Circuit Court of Appeals for the Ninth Circuit on March 14, 2013. The Court held that the State remained unconstitutionally silent instead of disclosing information about Detective Saldates history of misconduct and accompanying court orders and disciplinary actions, so they could have been used to impeach Saldate at the 1990 suppression hearing and trial. Chief Judge Kozinski went a step further saying that he would set aside the conviction on the additional ground that it relied on an illegally obtained confession that probably never occurred, and would ban use of the confession in any re-trial.1 The 60-page Ninth Circuit Opinion is not only a scathing indictment of a lawless cop who misbehaved again and again, but also of the Maricopa County Attorneys Offi ce whose prosecutors breached their duty to disclose known, favorable impeachment evidence, and deliberately withheld evidence of other cases where Saldate had either lied under oath or engaged in other forms of blatantly unconstitutional misconduct. The Court detailed the specific cases involving not only blatant Miranda violations by Saldate, but also violations under the Fifth and/or Tenth Amendments in the course of his interrogations. Those cases all involved the Maricopa County Attorneys Office and the Phoenix Police Department the very same agencies involved in re-prosecuting Debra Milke today. Judge Kozinski notes in the Milke Opinion: No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someones life or liberty. The Phoenix Police Department and Saldates supervisors there should be ashamed of having given free

There is little doubt that, had the full panel been properly made aware of the 2009 incident of misconduct involving Belinda Reynolds, it would have joined Chief Judge Kozinski in reversing Ms. Milkes convictions on both grounds and suppressing Saldates testimony at that juncture.

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rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorneys Office, which continued to prosecute Saldates cases without bothering to disclose his pattern of misconduct. Milke v. Ryan, 711 F.3d 998, 1025 (9th Cir. 2013) (emphasis added). The Ninth Circuit Opinion is not only significant because it overturns the conviction of a woman who was unjustly convicted and has spent the last twenty-three years of her life on death row, but it is a condemnation of a criminal justice system that failed at many levels. What is also unique about the Milke Opinion is its directive in the last paragraph: The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldates conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents. Milke, 711 F.3d at 1019-20 (emphasis added). The Ninth Circuit Court gave Maricopa County Attorney, Bill Montgomery, the option of not retrying Ms. Milke, or, if he decided to retry her, to do so within 90 days. Instead of not prosecuting a case like this, where there is no reasonable likelihood of conviction, the Maricopa County Attorneys Office has chosen to embrace Detective Saldates actions and validate his misconduct by proceeding on the basis of an unreliable and illegally obtained confession.

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As Chief Judge Kozinski notes:

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Indeed, without the confession, theres not enough evidence to support a conviction. Which is why its very important that the confession be reliable and lawfully obtained. Id. at 1024.

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II.

LEGAL ARGUMENT A. Extreme Circumstances Justify Disqualification.

The disqualification of a prosecutor or the prosecutors office is within the discretion of the trial court. See, e.g., Smart Industries Corp., Mfg. v. Superior Court (Yuma County), 179 Ariz. 141, 145, 876 P.2d 1176, 1180 (App. 1994). Several grounds support disqualification of a prosecuting agency. First, the Defendant can challenge the

representation by opposing counsel under extreme circumstances. State ex rel. Romley

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v. Superior Court (Maricopa County), 181 Ariz. 378, 380, 891 P.2d 246, 248 (App.
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1995). If this case does not present the type of extreme circumstances justifying disqualification of a prosecuting agency, it is hard to imagine a case that does. It is rare indeed for a federal circuit court to take the extreme and unusual step of referring a case to the U.S. Attorney and the U.S. Department of Justice for possible investigation into whether the investigating and prosecuting agencies have engaged in a pattern of violating the federally protected rights of a states citizens. Yet, that is precisely what occurred here. There is no question that, as a result of those referrals, the Maricopa County Attorneys Office and Phoenix Police Department have a direct self-interest in trying to protect their offices and each others agencies instead of objectively weighing whether, in the interest of justice, Ms. Milke should be retried.

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The glaring bias of the Maricopa County Attorneys Office is evident, not just in
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its decision to re-try Ms. Milke in the face of such gross misconduct by its lead case detective, but also in its unconscionable position that NONE of the impeachment

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(Giglio/Brady) evidence discussed in the Opinion is admissible against Saldate on retrial. The County Attorneys Office asserts this completely untenable position in its Response to Ms. Milkes Motion to Set Bail and for Simpson Hearing,2 notwithstanding the fact that a United States Court of Appeals has held, in a published opinion in Ms. Milkes case, that ALL of the impeachment evidence cited in its Opinion is not only admissible and relevant, but is constitutionally required to be admitted in order for her to

receive a fair trial. Contrary to the Maricopa County Attorneys position, these are not
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mere allegations of misconduct by defense counsel. Every single case cited by the
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Ninth Circuit involved judicial findings of misconduct by Saldate. See Appendix to Ninth Circuit Opinion, Milke, 711 F.3d at 1019-22. And Saldates suspension for lying to his superiors in an internal investigation regarding his gross abuse of power with a female motorist is based upon well-documented findings by the Phoenix Police Department and Saldates own admission that he lied until after he failed a polygraph exam. (Id.). Not only is the Ninth Circuit Opinion law of the case on the issue of the admissibility of Saldates history and pattern of misconduct, but it is elementary that it is ultimately the role of the federal courts to interpret and apply the United States Constitution. The Ninth Circuits Opinion is controlling as a matter of law on this issue. It is grossly irresponsible and frivolous on its face -- for the Maricopa County Attorneys Office to urge the Court to take a position so directly contrary to the c entral

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See Response to Defendants Motion to Set Bond at p. 2, stating that the County Attorney intends to file a motion in limine to preclude any mention of the impeachment evidence against Saldate, and characterizing this admissible impeachment evidence as repeated attempts to sully his reputation.
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holding of the controlling federal court opinion that led to a re-trial in the first instance.3 And their calculated decision to do so instead of fulfilling their duty as officers of the Court to see to it that justice is done and that Ms. Milke receive a fair trial under the Constitution lays bare their acute inability, due to their conflict of interest, to re-try this case in an objective, impartial and constitutional manner. This is just the beginning of decisions that will undoubtedly be colored by the Maricopa County Attorneys Offices conflict of interest, which should result in its immediate disqualification from the

prosecution of Ms. Milkes case.

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As the decisions the prosecution has made thus far should clearly demonstrate, the Maricopa County Attorneys Office has a significant self-interest in the outcome of this case, causing a conflict of interest that is truly worthy of disqualification. Additionally, based upon the Ninth Circuit Opinion, there is a substantial likelihood of an appearance of impropriety in this case. B. Disqualification is Also Warranted When Balancing The States Interests Against Defendant Milkes.

The Court should also balance the interests of the State with that of the Defendant in determining whether to disqualify a prosecutor. State ex rel. Romley v. Gottsfield, 171 Ariz. 195, 197-98, 829 P.2d 1241, 1243-44 (App. 1992). Factors the court should consider are: (1) the possibility of impropriety, (2) whether the motion is made for

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Notably, the Ninth Circuit chastised the initial trial judge, Judge Cheryl Hendrix, for buying into the notion that this evidence was merely an inadmissible attack on Saldates character. Milke, 711 at 1008-1010 (saying, among other things, that Judge Hendrix grossly misapprehended the nature and content of the impeachment documents in characterizing it as

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harassment, (3) whether the party seeking disqualification will be damaged if the motion is not granted, (4) whether there are alternative solutions to disqualification which would be less damaging to the parties, (5) whether the possibility of public suspicion outweighs any benefits that might accrue due to continued representation, (6) the severity of the charges, (7) the complexity of the case against the Defendant, and (8) the number of lawyers in the prosecutors office. Id.; see also Alexander v. Superior Court, 141 Ariz.

157, 685 P.2d 1309 (1984).

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1.

Interests of the Maricopa County Attorneys Office.

It is fundamental that the prosecutor of a criminal charge be disinterested. Clearwater-Thompson v. Michael A. Grassmueck, Inc., 160 F.3d 1236, 1237 (9th Cir. 1998) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)). A prosecutor has a legal duty to avoid a conflict of interest ... because his paramount duty is to the principle of fairness. In other words, his interest is not so much to prevail as to ensure that justice shall be done. Villalpando v. Reagan, 211 Ariz. 305, 309, 121 P.3d 172, 176 (App. 2005) (quoting Pool v. Superior Court, 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984)) (emphasis added). Public confidence in the criminal justice system is maintained by assuring that it operates in a fair and impartial manner. This confidence is eroded when a prosecutor has a conflict or personal interest in the criminal case which he is handling.

inadmissible impeachment evidence). For the Maricopa County Attorneys office to again try to sell this bill of goods to the Court on re-trial is too frivolous for words.

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Villalpando, 211 Ariz. at 309, 121 P.3d at 176. Any interest that is inconsistent with the prosecutors duty to safeguard justice is a conflict that potentially could violate a

defendants right to fundamental fairness. Id. This includes a financial stake in the outcome of litigation that clearly presents constitutional concerns. Id. As already shown above, the Maricopa County Attorneys Office has a significant interest in litigating this case and trying to obtain another capital conviction against Ms.

Milke. It is an interest not in obtaining justice, but in trying to redeem and protect
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itself from further potential consequences relating to its own conduct in this case. The
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Opinion demonstrates that the Ninth Circuit is obviously very concerned with the actions of the Maricopa County Attorneys Office in Ms. Milkes case (and in other cases involving Saldate). Based upon the Courts findings, together with the possibility of federal investigations, and a likely civil lawsuit, the Maricopa County Attorneys Office faces significant penalties, civil liability, and an investigation by the United States Attorneys Office and/or Department of Justice Civil Rights Division. The decisions and actions of the current County Attorney and his prosecutors simply cannot be separated from the already wrongful conduct of the original County Attorney and his prosecutors, and their conflict should be imputed to the entire Maricopa County Attorneys Office. 2. The Interests of Ms. Milke (and the Public). a. The Possibility of Impropriety.

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The previous failures of the Maricopa County Attorneys Office have already
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caused significant damage to Ms. Milke, and those failures will continue to affect this case moving forward. The possibility of impropriety here is high because the Maricopa

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County Attorneys decision to retry Ms. Milke and subject her to yet additional incarceration and potential constitutional violations may very well have been made in order to protect the Office legally, financially, and politically. If so, the Maricopa County Attorneys Office is clearly not acting as a neutral and disinterested prosecuting agency. The possibility of impropriety is high because a re-trial of Ms. Milke is likely not being pursued in the interests of justice but for improper political and financial reasons that are

far afield from the prosecutors duty to ensure that justice be served. The fact that the
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Maricopa County Attorneys Office has a significant legal and financial interest in the
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outcome of this case presents a high possibility, if not probability, of impropriety, which is alone sufficient to disqualify that office and require that a neutral prosecutor be appointed to objectively evaluate this case and make prosecutorial decisions based upon a neutral evaluation. b. Harassing Opposing Party.

A party cannot use disqualification as a strategic tool to gain an advantage above the opposing party. Alexander, 141 Ariz. at 165, 685 P.2d at 1317. Here, however, Ms. Milke does not seek to disqualify the Maricopa Count y Attorneys Office based upon such strategic objectives. As shown above, there are legitimate concerns in this case regarding the conduct of the Maricopa County Attorneys Office from the inception of the prosecution all the way through the reversal by the Ninth Circuit Court of Appeals.

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This is not a case where the impropriety is based upon mere allegations of misconduct;
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rather, the Ninth Circuit has made specific findings that such misconduct did, in fact,

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occur in the Phoenix Police Department investigation and during the prosecution of Ms. Milke by the Maricopa County Attorneys Office. c. Potential Damage to Ms. Milke of No Disqualification.

There is significant prejudice to Ms. Milke if the Maricopa County Attorneys Office is not disqualified. Ms. Milke has already been subjected to wrongdoing by these agencies, and she has already paid a hefty price: a wrongful conviction resulting in 25

years of incarceration, 23 of those on death row. Additionally, having to expend time,

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effort and County resources on responding to frivolous or borderline frivolous motions

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designed to further the County Attorneys self-interests rather than the interests of justice further damage Ms. Milke and the public interest. Ms. Milke seeks only to have an objective, neutral prosecuting agency evaluate and make the prosecutorial decisions regarding her case, so that her constitutional rights can be protected and accorded due weight, something she has yet to receive in the prosecution of her case. To allow her to be re-prosecuted by the very agency who engaged with Saldate and the Phoenix Police Department in the initial misconduct so chastised by the Ninth Circuit is unfair and highly prejudicial and damaging to her very legitimate constitutional interests. d. Alternative Solutions.

There are clearly alternative solutions here that are less damaging under the
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circumstances. Alexander, 141 Ariz. at 165, 685 P.2d at 1317. The Court can order
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another prosecuting agency to review this case and, if that agency determines a re-trial
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should be pursued, to then prosecute this case. There is no damage to the State of Arizona or the Maricopa County Attorneys Office if such a neutral party is chosen to

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instead review and prosecute the case. This is in sharp contrast to the significant harm to Ms. Milke if the Maricopa County Attorneys Office is not disqualified from proceeding with her prosecution. e. Possibility of Public Suspicion Outweighs Benefits of Continued Representation.

The final factor to be determined is whether the possibility of public suspicion will outweigh any benefits that might accrue due to continued representation. In Alexander, the court looked at the public perception of disqualification. 141 Ariz. at 165-66, 685 P.2d at 1317-18. [T]he appearance of prosecutorial impropriety should be avoided in order to maintain the publics confidence in the administration of justice. Villapando, 211 Ariz. at 310, 121 P.3d at 177. This concern is consistent with the ultimate goal for any prosecution, which is to maintain both public and individual confidence in the integrity of our judicial system. Id. In this case, the facts and case history detailed in the Ninth Circuit Opinion have

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unquestionably raised the general publics suspicion of the legal profession.

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suspicion of the legal profession, and in particular, of the Maricopa County Attorneys Office, has been reflected in widespread local and national media coverage since the Ninth Circuit Opinion was issued. Allowing the Maricopa County Attorneys Office to continue to serve as the prosecuting agency in this case is likely to increase that suspicion based upon its own obviously personal interests in the outcome of this case. As set forth above, the Ninth Circuit Opinion detailed the cases involving Saldate that the Maricopa County Attorneys Office was (or should have been) aware of and

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failed to disclose to the defense. Milke, 711 F.3d at 1012-1018. Each of those cases involved both the Phoenix Police Department and the Maricopa County Attorneys Office. The failure to disclose those court rulings and Saldates disciplinary history violated Giglio & Brady. Id. These included cases in which Saldate had blatantly violated individuals Fourth and/or Fifth Amendment Rights. Id. The Ninth Circuit determined that there was no way the Maricopa County Attorneys Office could not have known about such misconduct, because it had handled those other criminal prosecutions.

Id.
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The publics suspicion and appearance of prosecutorial impropriety are undoubtedly going to be further heightened by the insistence of the Maricopa County Attorneys Office that NONE of the now-revealed impeachment evidence is admissible against Saldate on re-trial, notwithstanding the Ninth Circuits published Opinion mandating that this evidence be admitted both at the suppression hearing and at any retrial. (See Response to Ms. Milkes Motion to Set Bail and for Simpson Hearing at p. 2). To say that the public will be stunned by this recent revelation by the Maricopa County Attorneys Office is an understatement. At a minimum, the public expects to see Ms. Milke receive a fair trial this time around, with full impeachment of Saldate allowed. The public suspicion raised by MCAOs past wrongdoing and failu re to disclose critical impeachment evidence to the defense -- and by its present insistence that this

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critical impeachment evidence not even be admitted in the suppression hearing and any
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re-trial -- is not outweighed by the Offices interest in continuing to prosecute this case. There is no harm to the Maricopa County Attorneys Office if it is disqualified from

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proceeding with this prosecution. Rather, the publics support and trust may be restored by referring Ms. Milkes case to a neutral prosecuting agency. III. CONCLUSION There are significant concerns raised by the Maricopa County Attorneys Office continuing the prosecution in this case in view of the findings in the Ninth Circuit Opinion and its referral of this case to federal agencies for possible criminal and civil

investigations.
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These concerns clearly serve to raise suspicion as to whether the

Maricopa County Attorneys Office can proceed in a truly disinterested and neutral manner on re-trial, or whether its decisions will continue to be colored by its significant interest in protecting its office politically, publically and financially. There is no harm to the Maricopa County Attorneys Office if it is disqualified from prosecuting this case while there is significant harm to Ms. Milke and to the publics perception of justice in its continued representation. For these reasons, Ms. Milke respectfully requests the Court to disqualify the Maricopa County Attorneys Office as the prosecuting agency in this case. RESPECTFULLY SUBMITTED this 31st day of July, 2013. KIMERER & DERRICK, P.C. /s/ Michael D. Kimerer Michael D. Kimerer JONES, SKELTON & HOCHULI, PLC /s/ Lori L. Voepel (w/permission) Lori L. Voepel Attorneys for Defendant Debra Jean Milke

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Original of the foregoing electronically filed on this 31st day of July, 2013, with: Clerk of the Superior Court Maricopa County Superior Court 201 West Jefferson Street Phoenix, Arizona 85003 Copy of the foregoing electronically transmitted On this 31st day of July, 2013 to: Honorable Rosa Mroz Judge of the Superior Court South Court Tower 175 West Washington Phoenix, Arizona 85003 Email: garciaa015@superiorcourt.maricopa.gov Copy of the foregoing emailed on this 31st day of July, 2013, to: Vincent Imbordino Deputy County Attorney Maricopa County Attorneys Office 301 W. Jefferson Street Phoenix, AZ 85003 Email: IMBORDIN@mcao.maricopa.gov

By: /s/ Melissa Wallingsford 16 17 18 19 20 21 22 23 24 25

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