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Michael D. Kimerer, Bar #002492 KIMERER & DERRICK, P.C. 1313 East Osborn, Suite 100 Phoenix, Arizona 85014 (602) 279-5900 mdk@kimerer.com Lori L. Voepel, Bar #015342 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-7312 Fax: (602) 200-7807 lvoepel@jshfirm.com minuteentries@jshfirm.com Attorneys for Defendant Debra Jean Milke SUPERIOR COURT OF THE STATE OF ARIZONA COUNTY OF MARICOPA STATE OF ARIZONA, Plaintiff, v. DEBRA JEAN MILKE, Defendant. NO. CR1989-012631 DEFENDANT MILKES REPLY IN SUPPORT OF MOTION TO SET BAIL - AND REQUEST FOR HEARING PURSUANT TO SIMPSON v. OWENS (Assigned to the Honorable Rosa Mroz) Defendant, Debra Jean Milke, respectfully submits her Reply in Support of her Motion to Set Bail and Request for Hearing pursuant Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004). The States Response is short on law and logic, and does not provide any legitimate ground for denying Ms. Milke a Simpson hearing or release on bail.

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I.

LAW AND ARGUMENT A. The States Contention That The Court Should Deny Bail Based On What Happened In Ms. Milkes Initial Trial Proceedings And Before The Ninth Circuit Vacated Her Capital Conviction Defies Logic and Is Unsupported by Simpson. As set forth in Ms. Milkes Motion, a defendant has a right to bail in

Arizona unless the proof is evident or the presumption great that the defendant committed the offense. A.R.S. 13-3961(A); Simpson v. Owens, 207 Ariz. 261, 266, 85 P.3d 478, 483 (App. 2004). At a minimum, due process requires that a defendant be provided with a hearing and an opportunity to be heard. Id. The Ninth Circuits Opinion makes clear that Ms. Milkes initial capital conviction was unconstitutionally obtained and based solely on the testimony of a now discredited police detective whose history of misconduct and dishonesty was kept from the defense and, ultimately, from the jury. It was obviously also not presented to the grand jury. Any determination now regarding whether the proof is evident or the

presumption great must necessarily take into account this critical impeachment evidence. What the jury, trial judge, or grand jury found 23 years ago without considering this impeachment evidence in a he-said/she-said capital case like this is irrelevant. The States argument treats the Ninth Circuits reversal for failure to turn over this critical Brady/Giglio evidence as though it was merely some kind of technical violation. To the contrary, the failure to disclose this critical impeachment evidence against Saldate went to the heart of Ms. Milkes case and, as the Court explained, she was extremely prejudiced by its omission: Milkes alleged confession, as reported by Saldate, was the only direct evidence linking Milke to the crime. But the confession was only as good as Saldates word, as hes the only one who claims to have heard Milke confess and theres no recording, written statement or any other evidence that Milke confessed. Saldates credibility was crucial to the states case against Milke. Milke, 711 F.3d at 1018-1019 (emphasis added). As to the admissibility and relevance of the impeachment evidence against Saldate, the Court emphasized:
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Its hard to imagine anything more relevant to the jurys or the judges determination whether to believe Saldate than evidence that Saldate lied under oath and trampled the constitutional rights of suspects in discharging his official duties. If even a single juror had found Saldate untrustworthy based on the documentation that he habitually lied under oath or that he took advantage of women he had in his power, there would have been at least a hung jury. Likewise, if this evidence had been disclosed, it may well have led the judge to order a new trial, enter judgment notwithstanding the verdict, or at least, impose a sentence less than death. Id. (emphasis added). Indeed, had this evidence been disclosed and used at the first suppression hearing, there is also a high likelihood that the alleged confession would have been suppressed in its entirety. As Chief Judge Kozinski observed: 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. Milke, 711 P.3d at 1024 (emphasis added). The initial admission of Saldates testimony about the alleged confession was, in Judge Kozinskis words, based upon flimsy evidence, quite possibly tainted by dishonesty or overzealousness[.] Id. at 1025. Clearly, in light of the Ninth Circuits findings and reversal of Ms. Milkes conviction, the Court should not take into account any of the judicial or jury findings during Ms. Milkes initial trial proceedings in assessing whether the proof is evident or the presumption great that Ms. Milke committed this offense. Nothing in the States Response, including its citation to Simpson and/or Massey v. Mullen, 366 A.2d 1144 (1976), supports its position to the contrary.1 The Simpson Courts use of the backward looking model in no way implies that this Court must consider and be bound by an initial conviction that has been overturned as unconstitutionally obtained through flimsy
1

Indeed, the States quote from Simpson supports Ms. Milkes position. It holds that in a bail hearing, The prosecution would be required to introduce evidence (either direct or circumstantial) which would be legally sufficient to avoid a directed acquittal at trial: evidence of every element of the offense charged which is sufficiently credible and persuasive that the jury would be allowed to convict upon such evidence. Simpson, 207 Ariz. at 275 (emphasis added).
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evidence presented by the State without the initial judges and jurys consideration of critical impeachment evidence against the States central witness. B. The States Claim That The Crucial Impeachment Evidence Against Saldate Is Not Even Admissible At The Upcoming Suppression Hearing And Any Re-Trial Is Patently Frivolous.

As for the States preposterous position that this crucial impeachment evidence should be precluded from this Courts consideration in the suppression hearing and/or from the jurys consideration in these re-trial proceedings, heres what the Ninth Circuit had to say about that: The prosecution did its best to impugn Milkes credibility. It wasnt entitled, at the same time, to hide the evidence that undermined Saldates credibility. Milke, 711 F.3d at 1018-1019 (emphasis added). Yet, here the State is, once again trying to persuade the trial court that all impeachment evidence now revealed against Saldate should be precluded, while the prosecution apparently expects to once again freely trash Ms. Milke. The Ninth Circuit Opinion is law of the case with regard to the admissibility of this critical impeachment evidence. State v. Cumbo, 9 Ariz. App. 253, 257, 451 P.2d 333, 337 (1969) (Once a federal court upholds a collateral attack on a judgment of conviction following a defendants first state trial, the decision of the federal court becomes the law of the case. Further proceedings in any later trial based upon the same facts must be in conformity with the habeas corpus decision. In the case before this Court the previous habeas corpus proceedings are res judicata on the issue of the lack of the voluntariness of defendant's absence in his previous State trial.).2 As a matter of Arizona

In Cumbo, the Arizona Supreme Court found that under the ruling of the federal court in habeas proceedings, there could be no voluntary waiver of the constitutional rights involved. Thus, said Cumbo, The judgment of the District Court which found that the defendant was not voluntarily absent became the law of the case for the purpose of considering the admissibility of the evidence. It did not, however, preclude the rearresting, rearraigning, and retrying of the defendant for the same crime. Cumbo, 9 Ariz. App. at 257, 451 P.2d at 337 (citing United States v. Case, 283 F.Supp. 744 (1968), and State v. Abbott, 103 Ariz. 336, 442 P.2d 80 (1968)) (emphasis added).
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and federal constitutional law, all impeachment evidence cited by the Ninth Circuit is admissible and relevant both to the suppression hearing and at any re-trial. Moreover, contrary to the Maricopa County Attorneys characterization of this evidence, these are not mere allegations of misconduct by defense counsel. Every single case cited by the Ninth Circuit involved judicial findings of misconduct by Saldate. (See Appendix to Ninth Circuit Opinion, Milke, 711 F.3d at 1019-22, attached as Exhibit A to Motion). 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, see Cumbo, et al, supra., but it is elementary that it is ultimately the role of the federal courts to interpret and apply the United States Constitution.3 See Article III, U.S. Constitution. The Ninth Circuits Opinion is controlling as a matter of law on these evidentiary issues, and the States position to the contrary is frivolous on its face.4 The States assertion that it is unclear what the nature of the suppression hearing will be is perplexing in light of the amount of prior litigation in this case on both the Miranda issue, and the issue of the reliability of Saldates testimony and claim that Ms. Milke confessed. Clearly, as outlined in Ms. Milkes Motion, the Ninth Circuit Opinion (Ex. A to Motion), and the Submission to the County Attorneys Office (Ex. B to

Under Article III, federal judges are constitutionally vested with the judicial Power of the United States, and this judicial Power shall extend to all cases arising under federal constitutional and statutory law. The Framers of our United States Constitution insisted that the federal judiciary guarantee that state decisional and other law conform to the supreme Law of the Land. 4 Granted, there are even more cases in which defendants alleged misconduct by Saldate, which defense counsel plan to present as additional impeachment evidence. As to those cases, the State can certainly argue admissibility. It cannot do so, however, with respect to the judicial findings of misconduct and the disciplinary record of Saldate detailed in the Ninth Circuit Opinion.
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Motion), there are a number of reasons the purported confession should be suppressed. The reasons are fully known to counsel for the State. C. The State Has the Burden To Immediately Come Forward With The Evidence It Believes Shows The Proof Is Evident Or Presumption Great That Ms. Milke Committed This Offense. The State references evidence it would purportedly present if the Court determines a Simpson hearing is required. In light of the time constraints involved in this case, it should be required to immediately come forward with it. As for the States position that some of the evidence presented by Ms. Milke with her Motion should not be considered because, it claims, it is unreliable or inadmissible, it is ironically the States position that, under Simpson, the Rules of Evidence are not to be strictly enforced, and the Court should consider any information or evidence that would be considered in a preliminary examination. Clearly, the State

apparently believes, however, that the Rules of Evidence should strictly apply when it comes to information and evidence presented by Ms. Milke. Nonsense. The Court should consider everything presented by Ms. Milke, including the Submission attached as Exhibit B to the Motion, which (unlike the States assertions to date) is extensively supported by specific citations to the record in this case and by exhibits). It should, of course, also consider evidence the State intends to present. However the Court weighs the evidence, it should do so in an even-handed manner, not in the lopsided manner urged by the State. As for the testimony the State references from co-defendant, Roger Scotts, trial, Ms. Milke has already attached that testimony (as well as Scotts taped interrogation transcript, and co-defendant James Styers trial testimony) as part of their Submission attached as Exhibit B to the Motion. (See exhibits 13-15 to Exhibit B to Motion). The Submission also addresses the numerous problems with Scotts testimony on pages 13-18 of the Submission, including the fact that none of Scotts statements regarding Debras supposed involvement came from direct contact or conversations with Debra, but rather from double hearsay statements he says his co-defendant, James Styers, made to him. Finally, as for the States claim that the 2010 (actually 2009) incident involving Saldate is
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unsubstantiated, Ms. Milke also presented official reports from the Phoenix Police Department and the Attorney Generals Office in her Submission documenting the incident. (See exhibit 3 to Exhibit B to the Motion). Clearly, this documented incident should be considered. II. CONCLUSION In sum, none of the States arguments in its Response support its position that Ms. Milke is not entitled to a Simpson hearing and/or to have bail set. The Ninth Circuit Opinion alone provides strong evidence of the fact that the States proof in this case is not evident, nor the presumption great that Ms. Milke committed this crime. As a result, and in light of the nearly twenty-five (25) years she has already wrongfully served in prison, Ms. Milke should not be forcibly incarcerated without bail pending this unwarranted re-trial. The additional factors supporting a bond release are also clearly relevant and should be considered. They include Ms. Milkes exceptional ADOC record over the past 23 years, her extensive support in the community, her lack of any criminal record before her wrongful conviction, and her need to communicate with her terminally ill mother while she is still alive. Finally, as noted in the Motion, granting Ms. Milke bail would relieve pressure from the Court and both parties to adhere strictly to the 90-day re-trial deadline set by the Ninth Circuit. Once Ms. Milke is released on bail, a more reasonable trial schedule could be set that would better facilitate the work required in presenting and defending a capital case, which would help to ensure effective assistance of counsel for Ms. Milke. For all of these reasons, Ms. Milke respectfully requests a hearing pursuant to Article II, 22 of the Arizona Constitution, A.R.S. 13-3961, and Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004), on the matter of Ms. Milkes right to bail. She further requests that the Court release her on bond until such time as the Court may make a determination that proof is evident or the presumption great that Ms. Milke committed the offense with which she is charged.
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DATED this 31st day of July, 2013. KIMERER & DERRICK, P.C. By /s/ Lori L. Voepel (w/permission for) Michael D. Kimerer 1313 East Osborn, Suite 100 Phoenix, Arizona 85014 JONES, SKELTON & HOCHULI, P.L.C. By /s/ Lori L. Voepel Lori L. Voepel 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Debra Jean Milke ORIGINAL electronically filed this 31st day of July, 2013. COPY mailed this 31st day of July, 2013, to: Vince H. Imbordino MARICOPA COUNTY ATTORNEYS OFFICE 301 W. Jefferson, 8th Floor Phoenix, Arizona 85003-2151 Attorneys for Plaintiff /s/ Ginger Stahly