Debra Jean Milke is free after spending 22 years on death row

December 12, 2014

Friday, December 12, 2014

Good evening:

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the facts:

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

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

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

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

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to try to make me feel for her, and I didn’t buy it. I didn’t buy it….”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she’d complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.”

With that, Saldate claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke — his drug and alcohol abuse and his arrests — recounted how she’d gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate’s opinion about whether her family would ever understand. (His view: No.)

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

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

Normally that would be the end of the matter. Right or wrong, a jury’s credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

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

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke, In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.

Comments on Torture

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

– right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.


Yet another egregious example to justify revoking the rule that prosecutors are immune from liability

November 11, 2014

Tuesday, November 11, 2014

Good afternoon:

Today I write about an egregious miscarriage of justice that provides yet another reason to revoke the rule that prosecutors are absolutely immune from liability.

The State of Texas executed Cameron Todd Willingham, an innocent man, on February 17, 2004 for murdering his three daughters on December 23, 1991 by setting his house on fire. This wrongful conviction was caused by prosecutorial misconduct, forensic incompetence, ineffective assistance of counsel and jailhouse snitch testimony.

Wikipedia summarizes the forensic issue.

Willingham’s case gained renewed attention in 2009 when an investigative report by David Grann in The New Yorker, drawing upon arson investigation experts and advances in fire science since the 1992 investigation, suggested that the evidence for arson was unconvincing and, had this information been available at the time of trial, would have provided grounds for Willingham’s acquittal.

According to an August 2009 investigative report by an expert hired by the Texas Forensic Science Commission, the original claims of arson were doubtful. The Corsicana Fire Department disputes the findings, stating that the report overlooked several key points in the record. The case has been further complicated by allegations that Texas Governor Rick Perry impeded the investigation by replacing three of the nine commission members in an attempt to change the commission’s findings; Perry denies the allegations.

(footnotes omitted)

The arson investigators testified that the fire was set by someone who used an accelerant to spread the fire. The alleged motive was that he had sexually molested his daughhters and murdered them to prevent them from accusing him. However, there was no evidence that he had molested. His wife and mother of the three girls, Stacy Kuykendall, told prosecutors that he loved them and would never have harmed them.

Wikipedia describes what happened after Willingham was convicted and sentenced to death.

Long after the original conviction, in 2004 Gerald Hurst, who has a Ph.D. in chemistry, examined the arson evidence compiled by Manuel Vasquez, the state deputy fire marshal. Hurst said that Vasquez was incorrect when he said that the extreme heat of the fire (as evidenced by a melted aluminum threshold) indicated that an accelerant was used, and said that experiments prove that wood and liquid accelerant fires can burn with equal heat. Hurst’s own experiments showed that burning with an accelerant does not leave the kind of brown stains that Vasquez claimed were created that way. Hurst also said that the crazed glass that Vasquez said was caused by a liquid accelerant had been found as a result of brush fires elsewhere. Experiments showed that crazed glass was caused not by rapid heating but by cooling, and that glass cooled by water from a fire hose was more likely to have a crazed or cracked pattern. A $20,000 experimental house fire set without an accelerant created the same pour patterns and V shaped pattern that Vasquez attributed to the use of a liquid accelerant. Vasquez thought that Willingham lied when he said he escaped without burning his feet, because he thought that an accelerant was used that would spread fire along the floor. However, since no accelerant was needed to create the results found, Willingham could well have been telling the truth when he said that he ran out without burning his feet, presuming he left before the fire achieved flashover.

According to Hurst, when a fire reaches the flashover threshold, it is impossible to visually identify accelerant patterns. While the prosecutor thought that the “bizarre” path of the flame indicated that an accelerant was used, Hurst said that the path of the fire followed a post-flashover pattern of going in the direction of ventilation. Although Willingham was accused of using an accelerant in three different places, the front porch was the only place where an accelerant was verified by laboratory tests, and a photograph taken of the house before the fire showed that a charcoal grill was there. The family confirmed that lighter fluid was by the grill used for family barbecues. Water sprayed by firefighters likely spread the lighter fluid from the melted container. All twenty of the indications listed by Vasquez of an accelerant being used were rebutted by Hurst.


(footnotes omitted)

On July 25, 2014 a group of Texas lawyers and the Innocence Project in New York City filed a bar complaint against John Jackson, the lead prosecutor in Willinghams’s trial. The Open File describes the complaint.

It alleges that a “pillar” of Jackson’s case against Willingham was disingenuously built on the incentivized testimony of a jailhouse informant.

Jackson, who later became a state district judge, allegedly covered up a deal he struck with a key witness in the case, Johnny Webb. Jackson allegedly told Webb he would reduce the charges in a pending robbery case against Webb in exchange for his testimony in the Willingham case. Webb testified at trial that while he and Willingham were housed in the same jail, Willingham confessed to setting the fire that killed his children. Jackson used this confession to prop up the arson evidence in the case (which has since been widely discredited by experts in forensic science. Read submissions from experts to the Texas Forensic Science Commission here.)

Failing to disclose a deal with a witness in a criminal case has long been held to be a violation of a defendant’s right to due process. In Giglio v. United States (1972) the Supreme Court ruled that the state is obligated to disclose to the defense any promise or expectation of leniency it offered to a witness. In Napue v. Illinois (1959) the Court made clear that a prosecutor’s failure to correct the testimony of a witness who falsely testifies that they have no expectation of leniency from the state is also a violation of due process.

But the allegations in the bar complaint against Jackson go much further than even these serious violations: the complainants suggest that Jackson has actively covered up the deal he made with Webb “to this day”, going so far as to “deceive” the Texas Board of Pardons and Paroles and the Governor, and submitting false evidence in the form of an affidavit to a 2010 Court of Inquiry.

Webb has since denied that Willingham confessed to him in jail.

The matter is pending.


Susan Mellen is free today after spending 17 years in prison for a murder she did not commit

October 11, 2014

Saturday, October 11, 2014

Good morning:

Free at last!

After serving 17 years in prison for a crime that she did not commit, Susan Mellen is free at last.

Corrina Knoll of the Los Angeles Times reports:

Superior Court Judge Mark S. Arnold said the trial had hinged on a single witness who was a “habitual liar” and claimed Mellen had confessed involvement in the crime. But jurors never learned that the witness’ sister, a Torrance police officer, believed she was a pathological liar or that Torrance police had several years earlier deemed the witness an “unreliable informant.”

The judge said Mellen had received “subpar representation” from a trial attorney who should have conducted a thorough investigation of the witness’ credibility.

“I believe that not only is Ms. Mellen not guilty, I believe based on what I’ve read, she’s innocent, and for that reason I believe the criminal justice system failed,” Arnold said.

“Thank you, your honor, thank you so much,” Mellen, 59, said in a small voice.

“Good luck,” the judge replied.

Mellen was convicted and sentenced to life in prison without parole in 1998 for soliciting the murder of a homeless man, Richard Daly, at a home in Lawndale, California where she and others were living at the time. Three gang members were subsequently linked to the murder and one of them was convicted of beating Daly to death. One of the others later passed a polygraph in which he admitted that he was present during the murder, but Susan Mellen was not there.

The three causes of this wrongful conviction are:

1) Jailhouse informant perjury;

2) Police and prosecutorial misconduct; and

3) Ineffective assistance of counsel.

The jailhouse informant or ‘snitch’ in this case was a woman named June Patti. People who work in the criminal justice system all know that jailhouse snitch testimony is inherently unreliable because they have powerful motives to lie in order to receive beneficial consequences lightening their load in return for their cooperation and testimony against a defendant. For this reason, I believe no conviction based solely on jailhouse snitch testimony should ever stand.

Mellen’s case is a perfect example of what can go wrong, if jailhouse snitch testimony is admitted to shore up a weak prosecution case.

June Patti testified that Susan Mellen admitted her guilt in the Daly murder while they were together in jail before Mellen’s trial. The lead investigator, LAPD Detective Marcella Winn, and the prosecutor who tried Susan Mellen should have known and likely knew that June Patti was an unreliable witness because she had a long history of providing false tips to law enforcement. For example, Patti’s sister, the Torrance police officer to whom Judge Arnold referred in his comment, now claims that she warned Detective Winn that June Patti was a pathological liar and several years before the murder a narcotics detective for the Torrance Police Department wrote a report in which he said Patti had provided a series of tips that turned out to false.

Police and prosecutors have a duty to investigate the reliability of an informant before putting her on the stand and risk convicting a potentially innocent defendant.

This information was exculpatory evidence that should have been obtained and disclosed to defense counsel before trial pursuant to Brady v. Maryland, and Giglio v. United States. Their failure to obtain and disclose this information to defense counsel was misconduct.

Finally, Mellen’s defense attorney compounded their misconduct by failing to investigate June Patti’s credibility. Her failure constitutes ineffective assistance of counsel.

I have often referred to defense counsel as liberty’s last guardian and that statement is certainly true in this case because Susan Mellen is free today due to the efforts of Deirdre O’Connor, an attorney who runs Innocence Matters, a nonprofit organization that represents wrongfully convicted innocent people.

Upon her release yesterday after serving 17 years in prison for a crime that she did not commit, she said,

I always forgave my enemies. Even your haters, you have to forgive them and sometimes thank them because they bring you closer to God.

For more information about June Patti’s pathological lying in Washington State after she left California, please go here.


Glen Ford is free at last after 30 years on death row

March 12, 2014

Wednesday, March 12, 2013

Good morning:

Glen Ford, 64, is a free man today after spending 30 years on death row in Louisiana for a murder he did not commit.

This awful case features police and prosecutorial misconduct, forensic fraud, lying witnesses and ineffective assistance of counsel.

The victim was Isadore Rozeman, 56, a watchmaker in Shreveport who was found shot to death behind the counter in his store. Mr. Ford worked for him occasionally doing yard work.

Police arrested Mr. Ford in November 1983 for possession of property stolen from Rozeman’s store. He was charged with the murder the following February together with George Starks, Henry Robinson and Jake Robinson.

The Death Penalty Information Center is reporting,

Prosecutors said they recently received “credible evidence” that Ford “was neither present at, nor a participant in, the robbery and murder” of which he was convicted in 1984. Ford, who has always maintained his innocence, was tried and sentenced to death by an all-white jury. One of the witnesses against him said at trial that police had helped her make up her story. A state “expert” who testified about the victim’s time of death had not even examined the body. Ford’s lead trial attorney had never tried a jury case before. A second attorney, two years out of law school, worked at an insurance defense firm. They failed to hire any experts to rebut the prosecution’s case because they believed they would have to pay for the experts themselves. The Louisiana Supreme Court earlier said it had “serious questions” about the outcome of the trial, but did not reverse Ford’s conviction. Ford may have been involved in trying to pawn jewelry from the victim that he received from one of the original codefendants.

USA Today is reporting,

Movement in Ford’s decades-old case began last year when Caddo Parish prosecutors began filing motions in federal court indicating someone other than Ford had confessed to being Rozeman’s killer. The court documents indicate a confidential informant questioned in an unrelated homicide identified Jake Robinson, one of four men initially charged in Rozeman’s murder, as the triggerman, not Ford.

Few other details were provided until Thursday, when the motion spurring Ford’s release plainly stated that if the new evidence had been known when Ford went to trial the outcome would have been different. “Indeed, if the information had been within the knowledge of the state, Glenn Ford might not even have been arrested or indicted for this offense,” the motion states

There were no eyewitnesses to the crime and the murder weapon was never found. The prosecution’s most important witness was a woman named Marvella Brown. The Atlantic reports,

With all signs pointing to the Robinsons, and with police under the impression that the one or both of the brothers still possessed the murder weapon, Ford was not immediately charged with Rozeman’s murder. He and the two Robinsons were instead charged three months later—only after Jake Robinson’s girlfriend, Marvella Brown, incriminated them by telling the police that Ford was with the Robinsons, and in the possession of a firearm, on the day of Rozeman’s murder.

/snip/

Under cross-examination, however, she told jurors that the police had helped her make up the story she had told about Ford. When Ford’s attorneys later called her to the witness stand, she told jurors that a bullet left from an old gunshot wound to her head had affected her thinking. “I did lie to the Court… I lied about it all,” she said in court.

The all-white jury took less than 3 hours to convict Mr. Ford and it subsequently recommended a death sentence.

There were no blacks on the jury because the prosecution used a peremptory challenge to strike the only one from the jury, a practice condemned by the United States Supreme Court (SCOTUS) in Batson v. Kentucky, 476 U.S. 79 (1986).

Pursuant to Louisiana law, Mr. Ford will receive some financial compensation for being incarcerated for 30 years. The law requires the state to pay $25,000 per year of wrongful incarceration up to a maximum of $250,000 plus up to $80,000 for loss of life opportunities.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

This is our 930th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

If you appreciate what we do, please make a donation.

We cannot pay our bills without your support.

Fred


%d bloggers like this: