Milke v. Ryan , 711 F.3d 998 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA JEAN MILKE , No. 07-99001
Petitioner-Appellant,
D.C. No.
v. CV-98-00060-
PHX-RCB
CHARLES L. RYAN ,*
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding
Argued and Submitted
November 3, 2010—San Francisco, California
Filed March 14, 2013
Before: Alex Kozinski, Chief Judge, Jerome Farris
and Carlos T. Bea, Circuit Judges.
Opinion by Chief Judge Kozinski;
Concurrence by Chief Judge Kozinski
*
Charles L. Ryan is substituted for his predecessor, Dora B. Schriro,
as Director of the Arizona Department of Corrections, pursuant to Fed. R.
App. P. 43(c)(2).
2 MILKE V . RYAN
SUMMARY**
Habeas Corpus/Death Penalty
The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for murder, conspiracy to
commit murder, child abuse and the kidnapping of her young
son.
Petitioner Milke’s conviction was based largely on the
testimony of Police Detective Saldate, who allegedly obtained
her confession. The panel held that the state remained
unconstitutionally silent instead of disclosing information
about Det. Saldate’s history of misconduct and accompanying
court orders and disciplinary action. The panel held that the
state court’s failure to comply with Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150(1972), resulted in a decision by the state post-conviction
court that was contrary to clearly established Supreme Court
law, and that the state post-conviction court so misread the
evidence documenting the state’s Brady violations that its
decision was based on an unreasonable determination of the
facts. As a result of these two failings, the panel could not
accord deference to the state court’s decision under the Anti-
Terrorism and Effective Death Penalty Act.
Reviewing the Brady claim on the merits, the panel first
held that evidence in Det. Saldate’s personnel file,
documenting the detective’s lack of compunction about lying
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MILKE V . RYAN 3
during the course of his official activities, was favorable to
Milke’s defense and likely would have affected the sentence.
The panel next held that state knew of the evidence in the
personnel file and had an obligation to produce the
documents, and that there is a reasonable probability that
disclosure of the evidence would have led to a different
result.
The panel remanded with instructions that the district
court grant a conditional writ of habeas corpus setting aside
the conviction and sentence. The panel also ordered the
district court to order the state to provide Milke’s counsel
with Det. Saldate’s police personnel records covering all of
his years of service. The panel further ordered that, after the
state has turned over the records, it shall provide a statement
under oath certifying that all records have been disclosed and
none have been omitted, lost or destroyed, otherwise the
district court shall hold an evidentiary hearing to determine
whether and why any records have not been produced.
Afterwards, the district court shall order Milke released
unless the state decides to retry her. The panel retained
jurisdiction over any appeal arising from this remand.
Finally, the panel ordered the clerk of this court to send
copies of this opinion to the U.S. Attorney for the District of
Arizona and to the Assistant U.S. Attorney General of the
Civil Rights Division, for possible investigation into whether
Det. Saldate’s 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.
Chief Judge Kozinski concurred to comment on this
“troubling case.” He would reverse the district court’s
finding that Milke knowingly waived her Miranda rights
4 MILKE V . RYAN
because any confession was extracted illegally. He would set
aside the conviction on the separate ground that it relied on an
illegally-obtained confession that probably never occurred,
and bar use of the so-called confession during any retrial.
COUNSEL
Lori L. Voepel (argued), Jones, Skelton & Hochuli, P.L.C.,
Phoenix, Arizona; Michael D. Kimerer, Kimerer & Derrick,
P.C., Phoenix, Arizona, for Petitioner-Appellant.
Terry Goddard, Attorney General, Kent Cattani, Chief
Counsel, Capital Litigation Section and Julie A. Done
(argued), Assistant Attorney General, Capital Litigation
Section, Phoenix, Arizona, for Respondents-Appellees.
OPINION
KOZINSKI, Chief Judge:
In 1990, a jury convicted Debra Milke of murdering her
four-year-old son, Christopher. The judge sentenced her to
death. The trial was, essentially, a swearing contest between
Milke and Phoenix Police Detective Armando Saldate, Jr.
Saldate testified that Milke, twenty-five at the time, had
confessed when he interviewed her shortly after the murder;
Milke protested her innocence and denied confessing. There
were no other witnesses or direct evidence linking Milke to
the crime. The judge and jury believed Saldate, but they
didn’t know about Saldate’s long history of lying under oath
and other misconduct. The state knew about this misconduct
but didn’t disclose it, despite the requirements of Brady v.
MILKE V . RYAN 5
Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United
States, 405 U.S. 150, 153–55 (1972). Some of the
misconduct wasn’t disclosed until the case came to federal
court and, even today, some evidence relevant to Saldate’s
credibility hasn’t been produced, perhaps because it’s been
destroyed. In the balance hangs the life of Milke, who has
been on Arizona’s death row for twenty-two years.
Facts
On the last evening of his short life, Christopher Milke
saw Santa Claus at the mall. He woke up the next morning
begging his mother to let him go again. Debra agreed and
sent Christopher to the mall with her roommate, James
Styers. On the way, Styers picked up his friend, Roger Scott.
But instead of heading to the mall, the two men drove the boy
out of town to a secluded ravine, where Styers shot
Christopher three times in the head. Styers and Scott then
drove to the mall, where they reported Christopher as
missing.
Sunday morning, less than a day into the missing-child
investigation, police began to suspect Styers and Scott. It was
supposed to be Detective Saldate’s day off, but the homicide
sergeant in charge of the case called him in. A veteran of the
police force, Saldate was confident he could get the truth out
of anyone he interrogated. At headquarters he started in on
Styers almost immediately, while his partner, Detective Bob
Mills, worked on Scott. Shortly before 1 p.m., Saldate joined
Mills in interrogating Scott. According to Saldate, Mills and
other officers were happy to let a suspect talk, but Saldate’s
6 MILKE V . RYAN
“style,” as he described it, was “a little different”—he
preferred a frontal assault. “I knew that I was going to be
straightforward with [Scott], I was going to be very truthful
with him, but I was going to make sure that whatever he told
me was going to jive with the facts.”
Soon after Saldate’s appearance, Scott broke. He led the
detectives to Christopher’s body and told them where he and
Styers had thrown the unspent ammunition. According to
Saldate, Scott said along the way that Debra Milke had been
involved.1 Detective Saldate seized on the statement and flew
by helicopter to Florence, Arizona, where Milke had gone to
stay with her father and step-family after she learned of
Christopher’s disappearance.
In Florence, a deputy sheriff invited Milke to
headquarters to wait for Saldate. Saldate found Milke waiting
in a 15-by-15-foot room of the Pinal County jail. She hadn’t
been arrested, nor had she been told anything about
Christopher. Saldate pushed into the room and introduced
himself. He pulled his chair close to Milke, a forearm’s
length at most, and leaned in even closer. That’s when he
told her that the police had found her son—dead.
“What, what,” Saldate testified Milke said. Saldate also
reported that Milke started yelling and “seemed to try
crying.” But the detective saw through the ploy: “When
someone is told that their child was murdered and they start
to sob and no tears come to their eyes, it’s obviously a way
for her to try to make me feel for her, and I didn’t buy it. I
didn’t buy it . . . .”
1
Scott’s alleged statement was excluded as hearsay at Milke’s trial.
Neither Scott nor Styers would testify against Milke.
MILKE V . RYAN 7
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.”
8 MILKE V . RYAN
Milke has always denied involvement in the murder, and
her account of the interrogation differs substantially from
Saldate’s. Milke testified that she told Saldate she didn’t
understand the Miranda warnings and that, when Saldate
asked if she wanted the interrogation taped, she said: “No, I
need a lawyer.” According to Milke, Saldate ignored her
request, instead putting his hands on her knees and
proceeding with the interrogation; he then embellished and
twisted Milke’s statements to make it sound like she had
confessed.
The jury had no independent way of verifying these
divergent accounts. Saldate didn’t record the interrogation,
even though his supervisor instructed him to do so. Saldate
didn’t bring a tape recorder to the interview, nor did he ask
anyone to witness the interrogation by sitting in the room or
watching through a two-way mirror. Saldate also skipped the
basic step of having Milke sign a Miranda waiver. Not even
Saldate’s interview notes made it into court: Saldate testified
that he destroyed them after writing his official report three
days after the interrogation.
The jury thus had nothing more than Saldate’s word that
Milke confessed. Everything the state claims happened in the
interrogation room depends on believing Saldate’s testimony.
Without Saldate’s testimony, the prosecution had no case
against Milke, as there was no physical evidence linking her
to the crime and neither of her supposed co-
conspirators—Styers and Scott—would testify against her.
But Saldate was an experienced witness and his account of
Milke’s purported confession proved convincing. The jury
found Milke guilty of murder, conspiracy to commit murder,
child abuse and kidnapping. The judge sentenced her to
death.
MILKE V . RYAN 9
* * *
Normally that would be the end of the matter. Right or
wrong, a jury’s credibility determinations are entitled to
respect. But the Constitution requires a fair trial, and one
essential element of fairness is the prosecution’s obligation to
turn over exculpatory evidence. See United States v. Bagley,
473 U.S. 667, 674–75 (1985); Giglio, 405 U.S. at 153–55;
Brady, 373 U.S. at 87. 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. 24–25 infra. All of this information should
have been disclosed to Milke and the jury, but the state
remained unconstitutionally silent.
Discussion
I. Antiterrorism and Effective Death Penalty Act
Principles of comity and federalism, as articulated by
Congress in the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), require federal courts to treat the
10 MILKE V . RYAN
decisions of the state courts with deference. But when state
courts interpret federal law incorrectly, or fail to apply it at
all, a federal court may intervene.
Under AEDPA, we may grant habeas relief if the state
court proceedings “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States,” 28 U.S.C. § 2254(d)(1); or if the
proceedings “resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” id. § 2254
(d)(2). A state court decision that provides no explanation is
entitled to AEDPA deference, Harrington v. Richter, 131
S. Ct. 770, 784 (2011), but a state court decision that fails to
apply the correct controlling authority is “contrary to . . .
established Federal law” and not entitled to AEDPA
deference, Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.
2002) (internal quotation marks omitted); Shackleford v.
Hubbard, 234 F.3d 1072, 1077 (9th Cir. 2000) (internal
quotation marks omitted).
Brady and its progeny require the state to disclose all
material evidence that could exculpate the defendant,
including evidence that could be used to impeach one of the
prosecution’s witnesses or undermine the prosecution’s case.
Despite Milke’s persistent complaints at trial and on appeal
that impeachment evidence was withheld, the state court
never complied with Brady. This omission resulted in a
decision by the state post-conviction court that was contrary
to clearly established law as announced by the Supreme
Court. 28 U.S.C. § 2254(d)(1). Further, the state post-
conviction court so misread the evidence before it
documenting the state’s Brady violations that its decision was
MILKE V . RYAN 11
based on “an unreasonable determination of the facts.”
28 U.S.C. § 2254(d)(2). As a result of these two failings, we
cannot accord AEDPA deference to the state court’s decision.
A. Brady Claim in State Court
1. The law requires the prosecution to produce Brady and
Giglio material whether or not the defendant requests any
such evidence. Strickler v. Greene, 527 U.S. 263, 280
(1999); United States v. Agurs, 427 U.S. 97, 107 (1976).
Even though Milke wasn’t required to request impeachment
evidence from Saldate’s personnel file—or elsewhere—she
did so at trial by issuing a subpoena duces tecum.2 The
subpoena requested Saldate’s “entire personnel file”
including “all records of any Internal Affairs investigations
. . . relating to his technique or methods of interrogation,
violations of Miranda rights and/or improprieties during the
course of interrogation, if any.” The state trial court quashed
the subpoena except for some records of Saldate’s training
and documents describing police department policies, which
were submitted for in camera review.
In post-conviction proceedings, Milke argued that her
“right to a fair trial” had been compromised by her inability
to get access to impeachment evidence in Saldate’s personnel
file. She asserted that the “truthfulness and veracity” of
Saldate were “material” to her case and that, under federal
and state law, “the right of confrontation and cross-
2
The subpoena duces tecum isn’t in the record, but the record does
contain the Phoenix Police Department’s motion to quash the subpoena.
That motion reproduces three paragraphs from the subpoena. We quote
from that reproduction, which is the state’s uncontested account of the
subpoena.
12 MILKE V . RYAN
examination is an essential and fundamental requirement for
the kind of fair trial, which is this country’s constitutional
goal.” Milke argued that she had been denied her
constitutional right to cross-examine Saldate because the state
did not give her access to impeachment evidence in his file.
She blamed the trial court for “refusing to permit the full
impeachment of the interrogating officer.” Earlier in the
petition, she also asserted that the trial court had “imped[ed]
defense counsel’s ability to impeach Saldate.” The
prosecution didn’t make the requisite disclosures, and the trial
court didn’t order the prosecution to do so.
Accompanying her impeachment-evidence claim, Milke
attached documents from cases in which Saldate had
committed misconduct. See Appendix. None of the
documents had been disclosed by the state at trial. In four of
the cases, state judges threw out indictments or confessions
because Saldate had lied to a grand jury or a judge. In State
v. Reynolds, for example, the judge ordered a new probable
cause finding largely because the defendant “was denied his
right to due process and a fair and impartial presentation of
the evidence” as a result of Saldate’s lying under oath to a
grand jury. Order Granting Mot. for New Finding of
Probable Cause, State v. Reynolds, CR88-09605 (Ariz. Super.
Ct. Feb. 27, 1989).
In four cases, judges threw out confessions or vacated
convictions because Saldate had violated suspects’ Miranda
and other constitutional rights during interrogations, often
egregiously. In one case, for example, Saldate testified that
he interrogated a suspect who was strapped to a hospital bed,
incoherent after apparently suffering a skull fracture.
Transcript of Motions and Trial at 23–25, State v. Yanes, No.
CR-130403 (Ariz. Super. Ct. May 31, 1983). The state
MILKE V . RYAN 13
introduced the suspect’s statement at his first trial, Order
Granting Mot. for New Trial, State v. Yanes, No. CR-130403
(Ariz. Super. Ct. July 26, 1984), despite the fact that, when
interviewed by doctors, the suspect didn’t know his own
name, the current year or the name of the president, Pet. for
Post-Conviction Relief, Attachment A at 6, State v. Yanes,
No. CR-130403 (Ariz. Super. Ct. Nov. 14, 1983). At the
suspect’s retrial, the court suppressed “those statements made
by the defendant to Armando Saldate.” Order Granting Mot.
to Suppress, State v. Yanes, No. CR-130403 (Ariz. Super. Ct.
Nov. 26, 1984). The state made no mention of any of this
evidence, even though (or perhaps because) a critical question
in Milke’s case was whether Saldate ignored Milke’s request
for an attorney. And, despite this trove of undisclosed
impeachment evidence, the post-conviction court rejected
Milke’s claim that she’d been denied access to impeachment
material.
Milke’s complaints to the post-conviction court followed
her assertions, earlier in her petition, that the state had
engaged in “repeated instances of prosecutorial misconduct”
by failing to disclose evidence in a timely manner, thus
denying her “due process, a fair trial, and a reliable
sentencing determination.” Milke reminded the post-
conviction court that “egregious misconduct occurs where the
prosecutor’s manipulation of evidence is likely to have an
important effect on the jury’s determination.” To support this
proposition, she cited the Supreme Court’s discussion of the
Brady disclosure obligation in Donnelly v. DeChristoforo,
416 U.S. 637, 647 (1974). Indeed, Milke’s reference to
“egregious misconduct” comes directly from DeChristoforo’s
use of that phrase to discuss Brady. See id. at 647–48
(referring to the “sort of egregious misconduct held in . . .
Brady to amount to a denial of constitutional due process”).
14 MILKE V . RYAN
Milke again raised the impeachment-evidence claim when
she petitioned the Arizona Supreme Court to review the
denial of post-conviction relief. She alleged that the judge
“denied defense counsel unfettered access to Saldate’s
personnel records” and, as a result, allowed Saldate’s version
of the supposed confession to go “essentially unchallenged.”
This error resulted in a “one-sided presentation of evidence”
and “impeded [the jury’s] ability to fully and fairly assess the
credibility of both [Milke] and Saldate.” The Arizona
Supreme Court summarily denied the petition.
2. In examining the reasonableness of the state courts’
decisions, we look to “the last explained state-court
judgment” on this claim. Ylst v. Nunnemaker, 501 U.S. 797,
805 (1991); accord Avila v. Galaza, 297 F.3d 911, 918 (9th
Cir. 2002). In Milke’s case, that judgment was the post-
conviction trial court’s denial of her claim. We conclude that
the post-conviction court’s decision is both “contrary to . . .
clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and
“based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” id.§ 2254(d)(2). As a result, it doesn’t preclude us from
reaching the merits of the Brady claim.
a. Contrary to clearly established Federal law.
Long-established Supreme Court precedent holds that the
prosecution must turn over exculpatory evidence to the
defense. See Brady, 373 U.S. at 87; see also Bagley, 473 U.S.
at 674–78. This doctrine applies to impeachment evidence as
well. Giglio, 405 U.S. at 154–55; see also Bagley, 473 U.S.
at 676. In Giglio, the prosecution’s case “depended almost
entirely” on the testimony of an unindicted co-conspirator.
Giglio, 405 U.S. at 151, 154. Without his testimony, “there
could have been no indictment and no evidence to carry the
MILKE V . RYAN 15
case to the jury.” Id. at 154. The co-conspirator gave his
testimony only after being offered immunity from
prosecution, but the prosecution didn’t disclose, until after the
trial, that the witness had been offered immunity. Id. at
151–52. According to the Supreme Court, “the jury was
entitled to know” about the offer in considering the
testimony. Id. at 155. The prosecution’s failure to disclose
its offer of immunity violated the defendant’s due process
right to a fair trial. Id. The Court reversed the conviction and
remanded for a new trial. Id.Giglio’s requirement that the state disclose impeachment
evidence is well-established and should have controlled the
post-conviction court’s ruling on Milke’s claim. As in
Giglio, Milke’s prosecutor failed to turn over impeachment
evidence about the key witness, whose testimony was
essential to the case. The undisclosed evidence included
court orders from state judges who had taken action against
the prosecution in numerous cases because of Saldate’s false
statements under oath as well as the Miranda and other
constitutional violations he committed during interrogations.
See Appendix. The evidence also included a personnel record
documenting a five-day suspension where Saldate’s
supervisors had caught him in a lie and concluded that his
credibility was compromised. See pp. 28–29 infra. The state
didn’t turn over the suspension report from the personnel file
until federal habeas proceedings.
The court documents and the information in the personnel
file fit within the broad sweep of Giglio, and it was the
prosecutor’s “duty to learn of any favorable evidence known
to the others acting on the government’s behalf in the case,
including the police.” Kyles v. Whitley, 514 U.S. 419,
16 MILKE V . RYAN
437–38 (1995). What happened here is more akin to active
concealment.
The state court applied the wrong legal authority in
resolving Milke’s claim. Instead of recognizing the state’s
constitutional obligation to turn over impeachment evidence
under Giglio, the post-conviction judge said she didn’t have
“specific information as to how the trial court ‘refused’ to
permit ‘full impeachment’” but guessed that “the claim of err
[sic] relates to precluding the defendant from having access
to all of Det. Saldate’s personnel records.” The court found
this claim “not colorable” because Milke “fail[ed] to explain
why the information was validly discoverable and how it
relates to ‘full impeachment’ of Det. Saldate.” But material
impeachment evidence isn’t just discoverable; under Giglio,
it must be disclosed unilaterally as a matter of constitutional
right.
Milke’s claim was straightforward: She couldn’t
effectively cross-examine Saldate because the state had failed
to disclose significant impeachment evidence. At trial, she
subpoenaed Saldate’s personnel file hoping to gain access to
the impeachment evidence to which she was entitled even
without a request, and hoping that the evidence in the file
could lead to further impeachment evidence elsewhere. The
state moved to quash the subpoena, then failed in its duty to
disclose impeachment evidence from the file—and
elsewhere—despite the requirements of Brady and Giglio.
The trial court quashed the subpoena, except for documents
relating to Saldate’s training and those describing police
department policies, which were produced for in camera
inspection. The court documents Milke presented in post-
conviction proceedings showing Saldate’s
misconduct—misconduct that should have been disclosed by
MILKE V . RYAN 17
the state—suggested that the personnel file would contain
even more.
Instead of examining this claim in light of Giglio—asking
whether the evidence was favorable, whether it should have
been disclosed and whether the defendant suffered prejudice,
see Strickler, 527 U.S. at 281–82—the state court focused on
the discoverability of the evidence and the specificity of the
claim. This is not the inquiry called for by long-standing
Supreme Court caselaw. Because the state court focused on
the wrong questions in denying Milke’s impeachment-
evidence claim, it applied the wrong legal framework. Its
decision is thus “contrary to . . . clearly established Federal
law” and unworthy of AEDPA deference. See Benn,
283 F.3d at 1051; Shackleford, 234 F.3d at 1077.
b. Unreasonable determination of the facts. The
state court’s decision is also not entitled to AEDPA deference
because it seriously mischaracterized key evidence that
supported Milke’s claim. Section 2254(d)(2) authorizes
federal habeas relief when the state-court decision was “based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Such
unreasonable determinations “come in several flavors,” one
of them being “where the fact-finding process itself is
defective.” Taylor v. Maddox, 366 F.3d 992, 1000, 1001 (9th
Cir. 2004).
Here, the state court’s fact-finding process was defective
in two distinct ways. The first defect resulted from the
prosecution’s suppression of a suspension report contained in
Saldate’s personnel file. The report was clearly available to
the state and it unquestionably constituted Brady and Giglio
evidence of the most egregious kind, yet the state suppressed
18 MILKE V . RYAN
it for more than a decade. When it was finally disclosed in
federal court in 2002, the report showed that Saldate had
suffered a five-day suspension for accepting sexual favors
from a female motorist and then lying about it. That Saldate
was disciplined for lying on the job obviously bears on his
credibility and qualifies as Giglio evidence. The report also
discloses that Saldate had no compunction about abusing his
authority with a member of the public, a vulnerable woman
who, like Milke, found herself alone with him and under his
control. The state offers no excuse for failing to turn over the
report before the trial, nor can we imagine any legitimate
reason for this failure. After all, the state did finally produce
it when forced to do so by an order of the district court.
The prosecution’s suppression of this report in state court
distorted the fact-finding process, forcing the state judge to
make her finding based on an unconstitutionally incomplete
record. This is not a situation where the record was
incomplete because of anything petitioner did or failed to do.
The prosecution had an “inescapable” constitutional
obligation under Brady and Giglio to produce the evidence.
Kyles, 514 U.S. at 438. Its failure to comply with that
requirement rendered the fact-finding “process employed by
the state court . . . defective.” See Taylor, 366 F.3d at 999.
“[I]n light of the evidence presented in the State court
proceeding,” 28 U.S.C. § 2254(d)(2)—evidence that was
materially incomplete due to the prosecution’s
misfeasance—the state court’s fact-finding was fatally
undermined by the absence of evidence that the state was
required by Brady and Giglio to produce.
By withholding key evidence that it had a duty to
produce, the prosecution induced a defect that causes us to
“more than merely doubt whether the process operated
MILKE V . RYAN 19
properly.” Taylor, 366 F.3d at 1000. We can be certain it
didn’t. “[A]ny appellate court to whom the defect is pointed
out would be unreasonable in holding that the state court’s
fact-finding process was adequate.” Id. The state court’s
finding thus amounted to an unreasonable determination of
the facts under section 2254(d)(2).3
The second defect in the state court’s fact-finding process
was its failure to consider all the evidence that was presented
to it. We have held that, “where the state courts plainly
misapprehend or misstate the record in making their findings,
and the misapprehension goes to a material factual issue that
is central to petitioner’s claim, that misapprehension can
fatally undermine the fact-finding process, rendering the
resulting factual finding unreasonable.” Id. at 1001. In short,
we can’t accord AEDPA deference when the state court “has
3
W e note an alternative theory under which a federal court could
consider Saldate’s suspension report, even though it wasn’t first presented
in state court: It’s an open question whether Cullen v. Pinholster, 131
S. Ct. 1388, 1398 (2011), applies to evidence that is suppressed by the
prosecution in state proceedings yet introduced on federal habeas in
support of a Brady claim already adjudicated by the state courts. See
Gonzalez v. Wong, 667 F.3d 965, 999–1001, 1013–17 (9th Cir. 2011) (W .
Fletcher, J., concurring); Pinholster, 1388 S. Ct. at 1417 n.5 (Sotomayor,
J., dissenting) (“I assume that the majority does not intend to suggest that
review is limited to the state-court record when a petitioner’s inability to
develop the facts supporting his claim was the fault of the state court
itself.”); id. at 1417–18 (“Consider, for example, a petitioner who
diligently attempted in state court to develop the factual basis of a claim
that prosecutors withheld exculpatory witness statements in violation of
Brady . . . .”). Because we conclude that the withholding of the report
distorted the fact-finding process so as to render the state-court finding
defective, we need not consider whether the report could be considered on
federal habeas under this alternative theory.
20 MILKE V . RYAN
before it, yet apparently ignores,” evidence that is “highly
probative and central to petitioner’s claim.” Id.
Milke presented the state court with hundreds of pages of
court records from cases where Saldate had committed
misconduct, either by lying under oath or by violating
suspects’ Miranda and other constitutional rights during
interrogations. Had these cases been brought to the jury’s
attention, they would certainly have cast doubt on Saldate’s
credibility. In addition to serving as impeachment evidence,
they also buttressed Milke’s repeated claim that she’d been
prejudiced by denial of access to Saldate’s personnel file,
where more impeachment evidence could be expected to
reside. This trove of court documents was critical to Milke’s
claim but ignored by the post-conviction court.
In reviewing the exhibits attached to Milke’s post-
conviction petition, Judge Cheryl K. Hendrix, who was also
the trial judge, was “unable to find a reference to the type of
evidence that is allowed under Rule 608 to impeach the
credibility of a witness.” That is no doubt because she
grossly misapprehended the nature and content of the
documents that Milke presented. Even though the judge
claimed to have reviewed the exhibits, she referred to the
collection of court documents as containing mere “motions
and testimony from other cases in which Det. Saldate was the
interrogating officer. It establishes nothing. The filing of a
motion to suppress does not mean the police officer engaged
in improprieties.”
Had these been merely motions and testimony, that would
be true; anyone can make unsubstantiated allegations of
misconduct. But seven of the cases included court orders
finding that Saldate had lied under oath or violated the Fifth
MILKE V . RYAN 21
or the Fourth Amendments during interrogations. Multiple
judicial determinations that Saldate lied in performing his
official functions and violated suspects’ constitutional rights
would have been highly relevant where the state’s case rested
on his testimony. That Milke’s evidence contained court
orders, rather than just “motions and testimony,” is a
significant, objective fact that the state court either
misapprehended or ignored. Either way, the court’s error
resulted in an unreasonable determination of the facts. These
overlooked court orders are “highly probative and central to
petitioner’s claim.” Taylor, 366 F.3d at 1001.
Had the state post-conviction judge realized that the
documents contained judicial findings of Saldate’s mendacity
and disregard for constitutional rights, she may well have
recognized their relevance as impeachment evidence that had
not been disclosed as required by Giglio. After all, the judge
acknowledged that Milke could have used the court records
to question Saldate about “specific instances of prior
conduct” if the information was “probative of the detective’s
character for truthfulness.” And this evidence certainly was,
though the court seemed unaware of it.
While the court held that “defense counsel would have
been bound by the detective’s answers” to the questions about
these instances of misconduct, the documents would still have
been valuable. With court orders in hand, defense counsel
would have had a good-faith basis for questioning Saldate
about prior instances where he had lied on the witness stand.
See Foulk v. Kotz, 673 P.2d 799, 801–02 (Ariz. Ct. App.
1983). If Saldate admitted the lies, his credibility would have
been impaired. If he denied them, he would have exposed
himself to a perjury prosecution. If he claimed he couldn’t
remember, defense counsel could have shown Saldate the
22 MILKE V . RYAN
documents to refresh his memory. See Ariz. R. Evid. 612;
State v. Hall, 504 P.2d 534, 537 (Ariz. Ct. App. 1973). And
if Saldate still couldn’t recall, the jury would have had reason
to doubt, not only his veracity, but his memory as well.
These court orders would have been a game-changer for
Milke, but the state court failed to grasp their significance
because it was apparently unaware that the documents
contained judicial findings rather than mere allegations.
The post-conviction court also erred in holding that court
orders documenting Saldate’s Miranda and other
constitutional violations—which also weren’t
disclosed—“would have been inadmissible extrinsic evidence
on a collateral matter” and “would have been inadmissible to
show that the detective engaged in the same ‘misconduct’ in
this case.” This ruling violated Milke’s due process rights
because the evidence would have been highly relevant to the
critical question of whether Saldate violated Miranda in
Milke’s case.
The issue of Saldate’s Miranda compliance was
strenuously disputed at trial. The judge instructed the jury to
discount any of Milke’s statements to police “unless you
determine beyond a reasonable doubt that the Defendant
made the statements voluntarily.” In anticipation of this
instruction, both sides staked out positions as to whether
Saldate violated Miranda. In closing arguments, defense
counsel reminded the jury that Saldate would continue to
speak to suspects even after they’d invoked the right to
counsel—“He told you that.”—and urged the jury to use
Saldate’s failure to record the interrogation as “a further piece
of the puzzle for you to take into account when considering
the voluntariness of the statements and considering the
integrity of an asserted confession.” The prosecutor also
MILKE V . RYAN 23
thought this issue was important. On cross-examination, he
confronted Milke about her supposed invocation of the right
to counsel: “You actually didn’t ask for an attorney in reality,
did you?” Milke insisted that she did. The prosecutor asked
again before sarcastically driving home his point: “I take it
you said that out loud?” Later, in closing, the prosecutor
insisted that Saldate had followed the law relating to
interrogations and that, “if [Milke] had requested an attorney
[Saldate] would have noted it.” Clearly, both sides
considered it highly relevant whether Saldate had complied
with Miranda in obtaining Milke’s supposed confession.
Given that the jury was being asked to determine whether
Saldate had complied with Miranda, judicial determinations
that Saldate had engaged in a pattern of Miranda and other
constitutional violations during interrogations would have
been highly probative. Their exclusion would have violated
due process by denying Milke “a meaningful opportunity to
present a complete defense.” Crane v. Kentucky, 476 U.S.
683, 690 (1986) (internal citation omitted). Saldate’s
documented history of such violations could have shown the
jury that he habitually circumvented Miranda, as Milke
argued in state and federal court. Likewise, these repeated
violations should have been admitted to demonstrate that
Saldate planned, from the outset, to conduct an illegal
interrogation by confronting Milke alone, without a tape
recorder. Repeated judicial findings that Saldate had violated
constitutional rights in other interrogations would have been
highly relevant to the jury’s deliberations about what took
place when he and Milke were alone behind closed doors,
after which he emerged claiming to have extracted a
confession. Exclusion of the evidence of Saldate’s pattern of
Miranda violations, had this evidence been offered by the
24 MILKE V . RYAN
defense at trial, would have violated Milke’s right to due
process.
When the state court fails “to consider key aspects of the
record,” it makes an “unreasonable determination of the
facts.” Taylor, 366 F.3d at 1008 (internal quotation marks
omitted). “[W]e may no more uphold such a factual
determination than we may set aside reasonable state-court
fact-finding.” Id. The state court’s failure to recognize that
Milke had attached judicial findings of misconduct to her
petition for post-conviction relief was an unreasonable
determination of the facts and thus presents a separate basis
for refusing to accord AEDPA deference to the state court’s
denial of Milke’s impeachment-evidence claim.
II. Brady Claim in Federal Court
A. District Court
In district court, Milke again pressed the issue of the
undisclosed impeachment evidence and finally succeeded in
prying information out of Saldate’s personnel file. She
presented the court records documenting Saldate’s lies and
Miranda and other constitutional violations, which she had
obtained in state post-conviction proceedings. She argued
that, “[b]y summarily dismissing Petitioner’s claims without
hearing, the [post-conviction] trial court effectively denied
defense counsel the means to buttress this evidence through
further discovery of Detective Saldate’s entire personnel and
disciplinary file.” She stressed that “the credibility and
veracity” of Saldate were “key issues” in the case.
Milke requested all documents (1) “concerning the
evaluation of Detective Armando Saldate’s (#1875)
MILKE V . RYAN 25
performance of his duties,” (2) concerning “investigations or
disciplinary actions taken or contemplated against Detective
Armando Saldate” and (3) assessing Saldate’s “credibility,
strengths and/weaknesses as a witness and/or possible effects
on a judge or jury.” The district court ordered the state to
produce for in camera review “Saldate’s personnel file and
any Internal Affairs investigation(s) of Saldate” as well as
“any assessments of Saldate’s credibility maintained by [the
Phoenix Police Department].”
The state produced just two of Saldate’s annual reviews
even though Saldate had held the job for twenty-one years
before Milke’s trial. All of Saldate’s annual reviews should
have been produced as they all apparently contained
assessments of Saldate’s job performance that bore on his
credibility. The state has never offered an explanation for its
failure to produce the remaining reports. In addition, the state
produced a notice of Saldate’s five-day suspension for taking
sexual liberties with a motorist he stopped and then lying to
his supervisors about it. The state has not explained why this
highly relevant report was not produced before Milke’s trial.
The district judge was rightly concerned that so few
documents had been produced in response to his order. He
ordered the state attorney general’s office to check with the
Phoenix Police Department whether all records had been
produced. Six days later, the Phoenix police chief and one of
his lieutenants wrote to the attorney general’s office saying
“every document subject to [the] order has in fact been
produced.” The police department’s statement was not under
oath and offered no explanation for how someone could work
for the Phoenix Police Department for two decades and have
such a short paper trail. The district court didn’t pursue the
matter.
26 MILKE V . RYAN
B. Court of Appeals
Milke’s opening brief in our court complained that she
had been denied access to Saldate’s file:
After cross-examining Saldate, defense
counsel sought discovery of his personnel
records for impeachment purposes. Judge
Hendrix ordered an in camera inspection of
Saldate’s file only as to any training he
received over the prior five years, and any
Phoenix Police Department policies,
procedures or guidelines for interrogations in
effect on December 3, 1989[, the day of the
interrogation]. None of this material was
provided to defense counsel.
(Internal citations omitted.) Milke also complained that the
state judge, who oversaw both trial and post-conviction
proceedings, “disallowed discovery of Saldate’s personnel
file” at both stages of the case and “would not allow defense
counsel access to anything in Saldate’s personnel files.”
Milke’s brief further noted that it wasn’t until federal habeas
that Milke “finally obtained” “portions of Saldate’s personnel
files.”
Her opening brief didn’t cite Brady or Giglio, but it did
cite their descendant, United States v. Kiszewski, 877 F.2d
210 (2d Cir. 1989):
[R]eliable evidence of a law enforcement
officer’s misconduct in unrelated cases is
admissible to impeach that officer’s
credibility, particularly “where credibility is
MILKE V . RYAN 27
the central issue in the case and the evidence
presented at trial consists of opposing stories
presented by the defendant and government
agents.” United States v. Kiszewski, 877 F.2d
210, 216 (2nd [sic] Cir. 1989).
(Emphasis omitted.)
The prosecution in Kiszewski didn’t turn over any Brady
material, so, shortly before trial, the defense subpoenaed the
personnel files of two FBI agents. 877 F.2d at 215. The
government admitted that one of the agents had a few
complaints against him, including one for which he had been
reprimanded. Id. Still, the government turned over nothing
and the district court refused to compel in camera review. Id.The Second Circuit found a Brady violation. Id. at 216.
Kiszewski has since been cited for the proposition that, under
circumstances like Milke’s, the trial court must do more than
take the government’s word that Brady material doesn’t
exist—the court must review the files in question.4
Milke further argued this claim in her reply brief where
she said that “Brady v. Maryland and its progeny require the
State to disclose material impeachment evidence” and that
4
See, e.g., United States v. Bland, 517 F.3d 930, 935 (7th Cir. 2008)
(citing Kiszewski’s holding that a “court should not rely on the
government’s representations regarding Brady materiality of potential
impeachment evidence where credibility is the central issue in the case”);
United States v. Brooks, 966 F.2d 1500, 1505 (D.C. Cir. 1992)
(summarizing Kiszewski as holding in camera review appropriate “when,
after prosecutor’s denial that any Brady material existed, prosecutor
revealed that FBI agent witness’s file contained complaints that he was
‘on the take’”).
28 MILKE V . RYAN
“[t]he state court’s ruling was clearly contrary to Brady.”
(Internal citation omitted.)
Having established that Milke’s claim is not barred by the
state court decision (which was both contrary to clearly
established federal law and based on an unreasonable
determination of the facts), that her claim was preserved and
that she raised it before us, we turn to the merits.
C. Brady Claim on the Merits
Due process imposes an “inescapable” duty on the
prosecutor “to disclose known, favorable evidence rising to
a material level of importance.” Kyles, 514 U.S. at 438.
Favorable evidence includes both exculpatory and
impeachment material that is relevant either to guilt or
punishment. See Bagley, 473 U.S. at 674–76; Giglio,
405 U.S. at 154. The prosecutor is charged with knowledge
of any Brady material of which the prosecutor’s office or the
investigating police agency is aware. See Youngblood v.
West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam).
A Brady violation has three elements. Strickler, 527 U.S.
at 281–82. First, there must be evidence that is favorable to
the defense, either because it is exculpatory or impeaching.
Id. at 281–82. Second, the government must have willfully
or inadvertently failed to produce the evidence. Id. at 282.
Third, the suppression must have prejudiced the defendant.
Id.
1. Favorable evidence. Any evidence that would tend to
call the government’s case into doubt is favorable for Brady
purposes. See Strickler, 527 U.S. at 290. Saldate’s personnel
file contained an internal investigation report showing he had
MILKE V . RYAN 29
been suspended for five days. The report explains that
Saldate stopped a female motorist who had a faulty taillight
and possibly an outstanding warrant. He let her go without
checking her warrant. Let her go isn’t quite accurate. Saldate
suggested they move to a less conspicuous spot and then
followed her to it. Once there, he leaned into her car, “took
liberties” with her and acted in a manner “unbecoming an
officer.” She offered to meet him later for an “act of sexual
intercourse.” Saldate showed up for the rendezvous, but the
woman didn’t. Instead, someone—perhaps the woman, once
she got free of Saldate—reported Saldate’s misconduct to the
police.
Questioned by investigators, Saldate steadfastly lied about
the incident until he failed a polygraph test. “[Y]our image
of honesty, competency, and overall reliability must be
questioned,” one of Saldate’s supervisors wrote in a report
signed by the city manager and the chief of police. The facts
of Saldate’s misconduct, his lies to the investigators and this
assessment by his supervisor would certainly have been
useful to a jury trying to decide whether Saldate or Milke was
telling the truth. Not only does the report show that Saldate
has no compunction about lying during the course of his
official duties, it discloses a misogynistic attitude toward
female civilians and a willingness to abuse his authority to
get what he wants. All of this is highly consistent with
Milke’s account of the interrogation.
The court orders Milke’s lawyers uncovered are also
favorable evidence that was available to the state but the
prosecution did not disclose. As Milke argued to the state
post-conviction court, the orders show that Saldate “has lied
under oath in order to secure a conviction or to further a
prosecution.” Those cases all involved the Maricopa County
30 MILKE V . RYAN
Attorney’s Office and the Phoenix Police Department—the
same agencies involved in prosecuting Milke:
! State v. King. On direct, Saldate told Maricopa County
prosecutor Paul Rood that the defendant hadn’t been
unwilling to answer questions during the interrogation. On
cross, the defense counsel read back Saldate’s own report
showing that the defendant had, in fact, said he wasn’t going
to answer any more questions. The trial judge threw out the
portion of the confession that followed the suspect’s request
to end the interview: “[T]he statements made up to the time
when the defendant advised the detective he no longer wished
to answer his questions are admissible. Thereafter they’re not
admissible.” Transcript of Voluntariness Hearing at 35, State
v. King, CR90-00050 (Ariz. Super. Ct. Jun. 22, 1990).
! State v. Reynolds. The judge found that Saldate’s false
statements to the grand jury “denied [the defendant] his right
to due process and a fair and impartial presentation of the
evidence.” Order Granting Mot. for New Finding of Probable
Cause, State v. Reynolds, CR88-09605 (Ariz. Super. Ct. Feb.
27, 1989). Two false statements particularly worried the
judge: Saldate told the grand jury that the victim’s son
couldn’t remember at what time he saw defendant enter the
house, drag the victim upstairs and then leave; the son could
say only that it was late at night, according to Saldate. That
statement was false. In fact, the son told detectives that the
defendant left the apartment about 8 p.m.; the son knew this
because defendant turned off the Garry Shandling Show on
the way out. Saldate’s omission was critical because other
witnesses had seen the victim alive after midnight; if the
defendant left around 8 p.m., it proved he hadn’t killed the
victim in their fight.
MILKE V . RYAN 31
In the same case, the grand jury asked Saldate whether the
defendant was drunk at the time of the crime, which bore on
whether the defendant could form the specific intent for first-
degree murder. Saldate testified that defendant had said he
was drinking but not drunk. However, defendant had told
Saldate that he’d been drinking beer and smoking marijuana,
and was too drunk to remember some of the events from that
night. The judge found that “a fair presentation was not made
in connection with the evidence concerning the identification
of the defendant by the victim’s son,” and that “the evidence
was not fully and fairly presented with regard to defendant’s
possible intoxication.” Order Granting Mot. for New Finding
of Probable Cause, supra. Based largely on Saldate’s two
false statements, the judge threw out the finding of probable
cause.
! State v. Rodriguez. Saldate told a grand jury that the
murder victim had been shot four times, even though it was,
as the judge wrote, “undisputed” that the victim was shot only
once. Order Granting Redetermination of Probable Cause,
State v. Rodriguez, CR 161282 (Ariz. Super. Ct. Nov. 20,
1986); Mot. for Redetermination of Probable Cause at 4,
State v. Rodriguez, No. CR 161282 (Ariz. Super. Ct. Oct. 20,
1986). The Maricopa County Attorney’s Office said it had
never intended to claim there was more than one shot. Resp.
to Mot. for Redetermination of Probable Cause at 4, State v.
Rodriguez, No. CR 161282 (Ariz. Super. Ct. Nov. 13, 1986).
Instead of blaming Saldate for the false statement, the
prosecution “[took] issue with the transcription of the grand
jury proceeding, for surely the testifying detective, Armando
Saldate, of the Phoenix Police Department, and/or this State’s
attorney would have caught and corrected such an incorrect
representation.” Id.
32 MILKE V . RYAN
The trial judge didn’t buy it. He found that the “reporter’s
notes and the transcript of the Grand Jury” were accurate and
that Saldate had, in fact, said there were four shots. Order
Granting Mot. for Redetermination of Probable Cause, No.
CR-161282 (Ariz. Super. Ct. Nov. 20, 1986). As a result of
this false statement, the judge ordered a redetermination of
probable cause.
! State v. Rangel. A judge agreed with defendant’s
claim that Saldate and a prosecutor (Lawrence Turoff) misled
a grand jury by selectively recounting defendant’s statements.
Order Granting Mot. to Remand, State v. Rangel, No. CR89-
08086 (Ariz. Super. Ct., Oct. 16, 1989); Mot. to Remand at
5–7, State v. Rangel, No. CR89-08086 (Ariz. Super. Ct. Sept.
15, 1989). The judge held that Saldate’s and the prosecutor’s
statements had materially affected the grand jury’s
deliberation and remanded the case for a new finding of
probable cause.
The above orders make out a Giglio violation on their
own, but Milke also presented additional Giglio
evidence—documents from four cases where courts found
Saldate had violated the Fifth Amendment or the Fourth
Amendment in the course of his interrogations. Again, those
cases all involved the Maricopa County Attorney’s Office and
the Phoenix Police Department:
! State v. Yanes. Saldate admitted interrogating a
suspect who was strapped to a hospital bed, incoherent after
apparently suffering a skull fracture. Transcript of Motions
and Trial at 23–25, State v. Yanes, No. CR-130403 (Ariz.
Super. Ct. May 31, 1983). When interviewed by doctors, the
suspect didn’t know his own name, the current year or the
name of the president, Pet. for Post-Conviction Relief,
MILKE V . RYAN 33
Attachment A at 6, State v. Yanes, No. CR-130403 (Ariz.
Super. Ct. Nov. 14, 1983), but the prosecutor nonetheless
presented the suspect’s statement to Saldate at trial, Order
Granting Mot. for New Trial, State v. Yanes, No. CR-130403
(Ariz. Super. Ct. July 26, 1984). The court vacated the
conviction and ordered a new trial. Id. At the suppression
hearing for the new trial, the court suppressed “those
statements made by the defendant to Armando Saldate.”
Order Granting Mot. to Suppress, State v. Yanes, No. CR-
130403 (Ariz. Super. Ct. Nov. 26, 1984).
! State v. Conde. Saldate interrogated a suspect in
intensive care who was intubated and connected to
intravenous lines. Saldate testified that the suspect was
drifting “in and out” of consciousness; several times, Saldate
had to shake him “to get his attention.” Transcript of Pretrial
Motions at 17–18, State v. Conde, Nos. CR 88-05881(B), CA
90-475 (Ariz. Super. Ct. Oct. 24, 1989). Nonetheless, Saldate
read him the Miranda warnings and went on with the
interrogation. “I really don’t know whether he wasn’t
responding because he didn’t understand his rights or wasn’t
responding because of the medication he was on,” Saldate
testified. By Saldate’s own admission, “it was obvious that
[the defendant] was in pain.” The nurse told the suspect that
she couldn’t give him more pain medicine until after he
finished talking to Saldate. When the case came to trial in
1989, the court held the statement from this interrogation
“involuntary and inadmissible,” as the Arizona Court of
Appeals noted in a published opinion three years later. State
v. Conde, 846 P.2d 843, 845 (Ariz. Ct. App. 1992).
! State v. King. Saldate kept asking questions long after
the defendant indicated he no longer wanted to answer. The
court ruled that those statements were inadmissible.
34 MILKE V . RYAN
Transcript of Voluntariness Hearing at 35, supra. This is the
same case discussed earlier in the context of Saldate’s false
statements. Supra p. 30.
! State v. Jones. In the course of a murder investigation,
Saldate directed an officer to place a juvenile by himself in an
interrogation room, where the juvenile was handcuffed to a
table. Order Granting Mot. to Suppress at 2, State v. Jones,
No. CR 90-05217 (Ariz. Super. Ct. Nov. 29, 1990). This,
despite the fact that, in the trial court’s view, “the police
clearly had no information linking the Defendant to the
murder or disappearance of [the victim],” and even the
Maricopa County Attorney’s Office conceded that it had no
probable cause for the detention. Id. The court suppressed
the murder confession as “the fruit of the illegal arrest” and
condemned the juvenile’s illegal detention and the
interrogation that followed as “a show of flagrant
misconduct.” Id. at 3.
The court order suppressing the confession was dated
November 29, 1990, just after Milke’s October 12, 1990,
conviction but before her January 18, 1991, sentencing.
Though too late to affect the jury’s verdict, this order should
have been produced under Giglio because Saldate’s
credibility remained a live issue. On the day of sentencing,
the court entertained Milke’s motions for a new trial and for
judgment notwithstanding the verdict. The judge denied both
motions, explaining that there was no error in allowing
Saldate’s statement about the confession. The judge said she
“does not believe that the Defendant made a request for an
attorney prior to or during her questioning by Detective
Saldate” and that, while “a good deal of time and effort was
expended by the defense to discredit the reports made by
Detective Saldate as to other witnesses[, t]hose efforts to
MILKE V . RYAN 35
discredit his note-taking and report-writing and accuracy
were not successful.” Had the Maricopa County Attorney’s
Office produced the suppression order in Jones, Milke could
have used it in support of her motions for a new trial and for
judgment notwithstanding the verdict, and the outcome might
well have been different.
The Jones order—and the other orders that the state failed
to produce—would likely also have affected the judge’s
decision whether to sentence Milke to death. As the Supreme
Court made clear in Brady itself, evidence must be disclosed
if it is “material either to guilt or to punishment.” Brady,
373 U.S. at 87 (emphasis added). Saldate’s credibility
certainly was material to punishment. For example, Milke’s
sentencing allocution went into detail about the legal errors
that led to her conviction. In pleading for her life, she was
particularly critical of Saldate. She said: “I’m disappointed
that the Court allowed the use of a purported confession to be
used against me when there wasn’t any evidence to prove this
alleged confession.” Milke continued:
Although Mr. Saldate testified that he follows
laws and guidelines, he does not. He didn’t
follow a direct order from a sergeant to tape-
record an interview with me. An[] officer
with over 20 years of experience should also
know better than to interview a female suspect
in a closed room without a witness. . . . This
crime was very serious and I feel Mr. Saldate
was extremely irresponsible. It is true my
Miranda rights were read to me and I was
apprised of my Fifth Amendment privilege to
have counsel present. However, when I
36 MILKE V . RYAN
requested such a privilege, he immediately
ignored me as if I said nothing.
Had Milke been able to present Saldate’s menagerie of lies
and constitutional violations, her allocution may well have
resonated with the sentencing judge and persuaded her to
spare Milke’s life. Indeed, the trial judge herself
acknowledged that she was considering “legitimate questions
concerning guilt” as a mitigating factor, only to find she had
no such questions about guilt. Had the judge known about
Saldate’s documented misconduct, she may well have
developed such “legitimate questions concerning guilt.”
2. Suppression. The second element of a Brady
violation is the willful or inadvertent failure of the prosecutor
to disclose evidence favorable to the defendant. See Strickler,
527 U.S. at 281–82; see, e.g., Giglio, 405 U.S. at 154(“[W]hether the nondisclosure was a result of negligence or
design, it is the responsibility of the prosecutor.”). We have
long held that the government has a Brady obligation “to
produce any favorable evidence in the personnel records” of
an officer. United States v. Cadet, 727 F.2d 1453, 1467 (9th
Cir. 1984). A defendant doesn’t have to make a request for
exculpatory or impeachment evidence: “[T]he duty to
disclose [exculpatory] evidence is applicable even though
there has been no request by the accused, and . . . the duty
encompasses impeachment evidence as well as exculpatory
evidence.” Strickler, 527 U.S. at 280 (internal citation
omitted). We’ve also held that “the government has a duty to
examine personnel files upon a defendant’s request for their
production.” United States v. Henthorn, 931 F.2d 29, 31 (9th
Cir. 1991). If the prosecution isn’t sure whether material in
a personnel file rises to the Brady threshold, “it may submit
the information to the trial court for an in camera inspection.”
MILKE V . RYAN 37
Cadet, 727 F.2d at 1467–68 (internal quotation marks
omitted) (quoting United States v. Gardner, 611 F.2d 770,
775 (9th Cir. 1980)). As the Supreme Court held in Kyles v.
Whitley, “a prosecutor anxious about tacking too close to the
wind will disclose a favorable piece of evidence.” 514 U.S.
at 439.
The state is charged with the knowledge that there was
impeachment material in Saldate’s personnel file. After all,
the state eventually produced some of this evidence in federal
habeas proceedings and has never claimed that it could not
have disclosed it in time for Milke’s trial. There can be no
doubt that the state failed in its constitutional obligation of
producing this material without any request by the defense.
The state also had an obligation to produce the documents
showing Saldate’s false and misleading statements in court
and before grand juries, as well as the documents showing the
Fifth Amendment and Fourth Amendment violations he
committed during interrogations. The prosecutor’s office no
doubt knew of this misconduct because it had harmed
criminal prosecutions. The police must have known, too.
Indeed, the timing of the suppression order in Jones
underscores the cavalier attitude of the Maricopa County
Attorney’s Office toward its constitutional duty to disclose
impeachment evidence. See pp. 34–36 supra. The
prosecution argued against the Jones suppression motion on
November 16, 1990, and lost, resulting in the suppression of
the murder confession. Order Granting Mot. to Suppress at
2, State v. Jones, No. CR 90-05217 (Ariz. Super. Ct. Nov. 29,
1990). The prosecutor’s office then began preparing for a
second hearing, which would determine whether key physical
evidence—“the body, shell casings, and shovel”— would
38 MILKE V . RYAN
also be suppressed. State v. Jones, Nos. 1 CA-CR 90-1922,
1 CA-CR 91-0345 at 2, 7 (Ariz. Ct. App. Nov. 10, 1992).5
All this was happening between the time of Milke’s
conviction on October 12, 1990, and her sentencing on
January 18, 1991. That means even as Milke’s attorney was
working hard to stave off a death sentence and win a new trial
or judgment notwithstanding the verdict, the prosecutor’s
office and the police were actively dealing with Saldate’s
misconduct in another murder case. Id. at 7.
When the Jones court suppressed the murder confession,
this must surely have reminded the Maricopa County
Attorney’s Office and the Phoenix Police Department of
Saldate’s propensity to commit misconduct. Indeed, Paul
Rood, the prosecutor in Jones, was also the prosecutor in
King, where in June 1990, Saldate had been caught in a lie
about violating Miranda. See pp. 30, 33–34 supra. And, at
about the same time as King, Rood also received a
suppression motion in State v. Mahler, a Saldate case in
which the defendant made what the Arizona Court of Appeals
called “an unequivocal invocation to remain silent.” No. 1
CA-CR 90-1890, at 4 (Ariz. Ct. App. Oct. 2, 1992). In that
case, Saldate kept speaking with the defendant after the
invocation, claiming that “he [Saldate] did not want an
admission but that he just wanted Mahler’s side of the story.”
Id. The Arizona Court of Appeals held that “Officer
Saldate’s intent was clear . . . he wanted additional statements
from Mahler. This conduct violated Mahler’s right to remain
5
The second hearing would take place on January 23, 1991, just days
after Milke’s sentencing. The trial court decided to suppress the physical
evidence, and the court of appeals affirmed both suppression orders. State
v. Jones, Nos. 1 CA-CR 90-1922, 1 CA-CR 91-0345 at 1, 2, 7 (Ariz. Ct.
App. Nov. 10, 1992).
MILKE V . RYAN 39
silent.” Id. The trial court didn’t suppress the confession,
and the defendant was convicted. But the Court of Appeals
held that the confession should not have been admitted and
remanded the case. Id. at 2, 6.
Because the Court of Appeals in Mahler didn’t hand
down its decision until 1992, after Milke’s trial, we don’t
count this case as Brady material. But Mahler is still
significant because the suppression motion, filed on May 30,
1990, came just about the time that Rood was handling
Saldate’s misconduct in King. The fact that Rood was
litigating yet another instance of Saldate’s misconduct in the
summer of 1990—albeit one where the trial court went the
state’s way, before being reversed—is all the more reason to
conclude that Rood and his colleagues in the Maricopa
County Attorney’s Office were intimately familiar with
Saldate’s pattern of misconduct.
And, as the state absorbed the loss of the Jones confession
in November 1990 and prepared arguments to save the
physical evidence in Jones from suppression, it must have
occurred to Rood or someone in the prosecutor’s office or the
police department (or both) that Saldate was also the key
witness in the high-profile case against Debra Milke—a case
where the defendant was still at trial, actively fighting for her
life. Yet no one saw fit to disclose this or any of the other
instances of Saldate’s misconduct to Milke’s lawyer.
Even if there somehow weren’t actual knowledge of
Saldate’s misconduct, inadvertent failure to disclose is
enough for a Brady violation. See Strickler, 527 U.S. at 282.
That the court documents showing Saldate’s misconduct were
available in the public record doesn’t diminish the state’s
obligation to produce them under Brady. In determining
40 MILKE V . RYAN
whether evidence has been suppressed for purposes of Brady,
our court has asked whether the defendant “has enough
information to be able to ascertain the supposed Brady
material on his own.” If so, there’s no Brady violation.
United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991);
see also United States v. Bracy, 67 F.3d 1421, 1428–29 (9th
Cir. 1995) (holding criminal history wasn’t suppressed
because the government “disclos[ed] . . . all the information
necessary for the defendants to discover the alleged Brady
material”); United States v. Dupuy, 760 F.2d 1492, 1501 n.5
(9th Cir. 1985). Where a defendant doesn’t have enough
information to find the Brady material with reasonable
diligence, the state’s failure to produce the evidence is
considered suppression.6
Milke was able to discover the court documents detailing
Saldate’s misconduct only after a team of approximately ten
researchers in post-conviction proceedings spent nearly 7000
hours sifting through court records. Milke’s post-conviction
attorney sent this team to the clerk of court’s offices to search
for Saldate’s name in every criminal case file from 1982 to
1990.7 The team worked eight hours a day for three and a
6
The Second Circuit came to the same conclusion about the suppression
of public records. In United States v. Payne, 63 F.3d 1200 (2d Cir. 1995),
a witness testified that she had packaged drugs for the defendant. Id. at
1205. But in her own criminal case, she submitted an affidavit saying
she’d had no involvement in the drug trade. Id. The defendant knew of
the witness’s criminal case and could have found the affidavit in the
public record. Id. at 1208–09. Still, the court rejected the claim that the
prosecutor had “no duty to disclose the affidavit . . . because it was in
public court records.” Id. at 1208. The test was whether defense counsel
“was aware of facts that would have required him to discover the affidavit
through his own diligent investigation.” Id. at 1209.
7
Saldate resigned from the police force on July 10, 1990.
MILKE V . RYAN 41
half months, turning up 100 cases involving Saldate. Another
researcher then spent a month reading motions and transcripts
from those cases to find examples of Saldate’s misconduct.
A reasonably diligent lawyer couldn’t possibly have found
these records in time to use them at Milke’s trial. Thus, the
documents describing Saldate’s lies and his Miranda and
other constitutional violations during the course of
interrogations were suppressed.
Indeed, suppression of the personnel file and suppression
of the court documents run together. Had Milke been given
the full run of evaluations in Saldate’s personnel file, she
would have found cases Saldate worked on. For example, the
1989 evaluation—one of just two evaluations turned
over—lists six high-profile cases Saldate handled. In
addition, the personnel file could have disclosed cases so
corrupted by Saldate’s misconduct that they were unfit for
court. As Milke argued, the court records she found in post-
conviction proceedings were just “the ‘tip of the iceberg’ of
Detective Saldate’s interrogation/interview practices.” But
without the full personnel file, we can’t know, even now, the
full extent of the misconduct that could have been used to
impeach Saldate.
3. Prejudice. To find prejudice under Brady and Giglio,
it isn’t necessary to find that the jury would have come out
differently. Kyles, 514 U.S. at 434. It suffices that there be
“a reasonable probability of a different result” as to either
guilt or penalty. Id. (internal quotation marks omitted).
Prejudice exists “when the government’s evidentiary
suppression undermines confidence in the outcome of the
trial.” Id. (internal quotation marks omitted).
42 MILKE V . RYAN
Milke’s alleged confession, as reported by Saldate, was
the only direct evidence linking Milke to the crime. But the
confession was only as good as Saldate’s word, as he’s the
only one who claims to have heard Milke confess and there’s
no recording, written statement or any other evidence that
Milke confessed. Saldate’s credibility was crucial to the
state’s case against Milke. It’s hard to imagine anything
more relevant to the jury’s—or the judge’s—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. The prosecution did its best to
impugn Milke’s credibility. It wasn’t entitled, at the same
time, to hide the evidence that undermined Saldate’s
credibility.
Also at issue was Saldate’s claim—again, unsupported by
evidence—that Milke waived her Miranda rights and didn’t
ask for a lawyer. Beyond its effect on Saldate’s credibility,
evidence of Saldate’s falsifications and his disregard of
Miranda, would have been highly relevant to the
determination of whether Milke’s alleged confession had
been lawfully obtained. The suppression of evidence of
Saldate’s lies and misconduct thus qualifies as prejudicial for
purposes of Brady and Giglio.
MILKE V . RYAN 43
III. Conclusion
Milke is entitled to habeas relief. We therefore
REVERSE the decision of the district court and REMAND
with instructions to GRANT a conditional writ of habeas
corpus setting aside her convictions and sentences. Prior to
issuing the writ, the district court shall order the state to
provide Milke’s counsel with Saldate’s police personnel
records covering all of his years of service, including records
pertaining to any disciplinary or Internal Affairs
investigations and records pertaining to performance
evaluations. If the state believes that any of the materials it
is ordered to provide are not relevant to Brady or Giglio, it
may present them to the district court in camera, and the
district court shall review them to determine whether they are
relevant to Brady or Giglio, as explicated in our opinion.
Defense counsel shall be allowed to see the documents and to
argue why each might be Brady or Giglio material. The
district court may, in its discretion, enter a protective order
requiring all contested documents to be filed under seal and
to be designated “For Attorneys’ Eyes Only,” and setting
such other conditions as the district court finds necessary and
proper, while the district court decides whether the contested
materials are relevant to Brady or Giglio.
After the state has turned over these records, it shall
provide a statement under oath from a relevant police official
certifying that all of the records have been disclosed and none
has been omitted, lost or destroyed. If a relevant police
official is unable or unwilling to provide such a certification,
the district court shall hold an evidentiary hearing to
determine whether any records have not been produced, and,
if so, why. Petitioner’s counsel shall be given a reasonable
44 MILKE V . RYAN
period of discovery prior to the hearing. This panel retains
jurisdiction over any appeal arising from this remand.
Upon production of the certification described above or
the conclusion of the evidentiary hearing, the district court
shall order Milke released unless the state notifies the court
within 30 days that it intends to retry Milke, and actually
commences Milke’s retrial within 90 days.
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
Saldate’s 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 V. RYAN 45
Appendix: Detective Armando Saldate, Jr.’s Misconduct
Incident Impeachment Misconduct Allegations Police Department
Evid. Type Action
Internal Affairs Lying to Saldate stopped a motorist who had a In a disciplinary
Investigation Internal Affairs faulty taillight and possibly an write-up, signed by
(Aug. 31, 1973) Investigators outstanding warrant. He let her go the police chief and
without checking her warrant. She the city manager,
offered him a kiss. The two went to a Saldate was told that
“less conspicuous place” where Saldate “because of this
“leaned inside her car, kissed her and incident, your image
deliberately began making advances and of honesty,
took liberties.” They agreed to meet competency, and
later for sex. Saldate lied about the overall reliability
incident to his supervisors. The lies must be questioned.”
were discovered, however, when the Saldate received a
supervisors administered a polygraph five-day suspension.
examination. Saldate then confessed
the details.
46 MILKE V. RYAN
Case Impeachment Misconduct Court Order
Evid. Type
State v. King, Lying under Saldate testified on direct examination The trial court held
CR90-00050 oath that the defendant never indicated he inadmissible all
(Ariz. Super. didn’t want to answer questions. On statements made after
Ct. Jun. 22, and cross-examination, defense counsel the defendant said he
1990) impeached Saldate with the wanted to cut off
Fifth detective’s own report. Saldate questioning.
Amendment admitted the false statement—and that
Violation he had continued to interrogate the
defendant despite defendant’s demand
to cease questioning.
MILKE V. RYAN 47
Case Impeachment Misconduct Court Order
Evid. Type
State v. Lying under Saldate made false statements to a The trial court held that
Reynolds, oath grand jury that undercut the “the defendant was
CR88-09605 defendant’s alibi and made the denied his right to due
(Ariz. Super. defendant look more culpable than he process and a fair and
Ct. Feb. 27, otherwise would have. impartial presentation
1989) of the evidence by the
manner in which the
[Grand Jury]
proceeding was
conducted.” The court
ordered a new finding
of probable cause.
48 MILKE V. RYAN
Case Impeachment Misconduct Court Order
Evid. Type
State v. Lying under Saldate told the grand jury that The court concluded that
Rodriguez, CR oath the victim had been shot four Saldate had made a false
161282 (Ariz. times even though it was statement, not that the court
Super. Ct. “undisputed” that the victim reporter had erred: “[T]he
Nov. 20, 1986) had been shot only once. The reporter’s notes and the
state blamed the court transcript of the Grand Jury
reporter; it claimed Saldate both reflect that the testimony
never said there was more than of the State’s witness [Saldate]
one shot, and if he did, he was that the deceased was shot
“surely . . . would have caught four times” even though “the
and corrected such an facts in this case are
incorrect representation.” undisputed that the deceased
was shot only one time.” The
trial court ordered a
redetermination of probable
cause.
MILKE V. RYAN 49
Case Impeachment Misconduct Court Order
Evid. Type
State v. Lying under When Saldate testified before the The court held that the
Rangel, CR89- oath grand jury, he omitted some of actions of Saldate and
08086 (Ariz. defendant’s statements in such a way the prosecutor “made
Super. Ct. Oct. as to make defendant look more the presentation of
16, 1989) culpable. evidence to the grand
jury less than fair and
impartial resulting in a
denial of a substantial
procedural right to the
defendant.” The trial
court ordered a new
finding of probable
cause and remanded
the case.
50 MILKE V. RYAN
Case Impeachment Misconduct Court Order
Evid. Type
State v. Jones, Fourth Saldate ordered a juvenile to be The trial court called
No. CR 90- Amendment detained in an interrogation room, the detention that
05217 (Ariz. Violation where he was handcuffed to a table. Saldate ordered “a
Super. Ct. This, despite the fact that the trial show of flagrant
Nov. 29, 1990) court found there was no probable misconduct” and ruled
cause for the detention and “the police that the murder
clearly had no information linking the confession must be
Defendant to the murder or suppressed as “the fruit
disappearance of [the victim].” of the illegal arrest.”
MILKE V. RYAN 51
Case Impeachment Misconduct Court Order
Evid. Type
State v. Yanes, Fifth Saldate admitted interrogating a The court vacated
CR 130403 Amendment suspect who was strapped to a defendant’s conviction
(Ariz. Super. Violation hospital bed, incoherent and and ordered a new trial.
Ct. July 26, disoriented, after apparently suffering At the suppression
1984) a skull fracture. When interviewed by hearing for the new
doctors, the suspect did not know his trial, the court granted
own name, the year or the name of the defendant’s motion to
president, but the state nonetheless suppress “those
presented the suspect’s statement at statements made by the
trial. defendant to Armando
Saldate.”
52 MILKE V. RYAN
Case Impeachment Misconduct Court Order
Evid. Type
State v. Conde, Fifth Saldate interrogated a defendant in intensive The trial court
846 P.2d 843 Amendment care who was intubated and connected to ruled in 1989 that
(Ariz. Ct. App. Violation intravenous lines. Saldate testified that the statements from
1992) defendant was drifting “in and out” of this interrogation
consciousness. Nonetheless, Saldate read the — the first of two
Miranda warnings and went on with the in the hospital —
interrogation. “I really don’t know whether were “involuntary
he wasn’t responding because he didn’t and inadmissible.”
understand his rights or wasn’t responding
because of the medication he was on,”
Saldate testified. Several times, Saldate had
to shake defendant “to get his attention.” By
Saldate’s own admission, “it was obvious
that [defendant] was in pain.” The nurse told
defendant that she couldn’t give him more
pain medicine until after he finished talking
to Saldate.
MILKE V. RYAN 53
Case Impeachment Misconduct Court Order
Evid. Type
State v. Fifth Defendant made an “unequivocal The Arizona Court of
Mahler, No. 1 Amendment invocation” of his right to remain silent. Appeals held that
CA-CR 90- Violation Instead of stopping the interrogation, “Officer Saldate’s
1890 (Ariz. Ct. Saldate pushed on, telling defendant intent was clear . . . he
App. Oct. 2, that “he did not want an admission but wanted additional
1992) that he just wanted [defendant’s] side of statements from
the story.” [defendant]. This
conduct violated
[defendant’s] right to
remain silent.” The
court suppressed all
statements defendant
made after he invoked
his right to silence, and
remanded the case.
54 MILKE V . RYAN
Chief Judge KOZINSKI, concurring:
This is a disturbing case. There’s no physical evidence
linking Debra Milke to the crime, and she has maintained her
innocence since the day she was arrested. Neither of the men
who actually did the killing testified against Milke. Roger
Scott refused to testify because his “testimony would not be
what he felt was the truth.” After spending many years on
death row, James Styers continued to insist that “Debbie had
nothing to do with it and thats [sic] the truth.” The only
evidence linking Milke to the murder of her son is the word
of Detective Armando Saldate, Jr.—a police officer with a
long history of misconduct that includes lying under oath as
well as accepting sexual favors in exchange for leniency and
lying about it.
Equally troubling are Saldate’s unorthodox interrogation
methods. Saldate has obtained confessions from people who
were intoxicated, hospitalized and on pain medication. See
Op. 32–33; Appendix. Saldate once ordered a juvenile to be
detained in an interrogation room, where he was handcuffed
to a table, even though the police had “no information linking
the Defendant” to a crime. Order Granting Mot. to Suppress
at 2, State v. Jones, No. CR 90-05217 (Ariz. Super. Ct. Nov.
29, 1990). The trial court suppressed the resultant murder
confession and called the illegal detention “a show of flagrant
misconduct.” Id. at 3. It later suppressed the resultant
physical evidence, too, and the Arizona Court of Appeals
affirmed both suppression orders, condemning the
“purposeful arrest lacking in probable cause, for the improper
motive of investigation.” State v. Jones, Nos. 1 CA-CR 90-
1922, 1 CA-CR 91-0345, at 1, 6 (Ariz. Ct. App. Nov. 10,
1992). In another case, Saldate admitted interrogating a
suspect who was strapped to a hospital bed, incoherent after
MILKE V . RYAN 55
apparently suffering a skull fracture. See Transcript of Trial,
State v. Yanes, No. CR 130403, at 23–25 (Ariz. Super. Ct.
May 31, 1983).
Then there’s Saldate’s practice of disregarding the right
to remain silent when invoked by suspects he’s questioning.
The Arizona Court of Appeals described one such example
where a defendant “made an unequivocal invocation to
remain silent,” yet Saldate pushed on with the interrogation,
insisting that he only wanted the defendant’s “side of the
story.” State v. Mahler, No. 1 CA-CR 90-1890, at 4 (Ariz.
Ct. App. Oct. 2, 1992). The trial court didn’t suppress the
confession, and the defendant was convicted of murder. Id.
at 1–2. But the Arizona Court of Appeals held “[t]his
conduct violated Mahler’s right to remain silent” and
remanded his case because of the illegally obtained
confession. Id. at 2, 4, 6. In Milke’s case, Saldate testified
that he doesn’t have to stop talking to suspects just “because
they asked for an attorney. That would be ridiculous . . . .”
What I find ridiculous is that this man—with his track record
of trampling basic constitutional rights—is sent to interrogate
a suspect without a tape recorder, a video recorder, a witness
or any other objective means of documenting the
interrogation.
Saldate’s supervisor asked him to record Milke’s
interrogation, yet Saldate didn’t even take a tape recorder
with him. When he arrived in Florence, Arizona, where
Milke was waiting for him, he didn’t obtain a recorder there
either, even though he knew they were readily available.
Saldate claims that Milke refused to have the conversation
recorded, but admits that he “basically didn’t want to record
it anyway.” And why not? Because “a tape recorder is an
obstacle for [him] to get to the truth” and so “it’s [his]
56 MILKE V . RYAN
practice never to use a tape recorder.” Of course, being left
with no recording is an obstacle for us to get to the truth, but
Saldate tells us not to worry: “[The] conversation was going
to be noted by me in a truthful manner, so there was really no
need for tape recording.” Right.
No other officer was present for the interrogation; no one
watched through a two-way mirror; no hidden camera or
microphone captured what happened inside the interrogation
room. Saldate never asked Milke to put her confession in
writing or initial a single sentence acknowledging she had
confessed. Nor did Milke sign a Miranda waiver. Saldate
testified that “[t]here was no document . . . we had available
to us” where “we could have a suspect sign that they waive
their rights.” And what of the practice of having a suspect
sign the officer’s Miranda card? “I never knew that ever
happened,” Saldate testified. “Never happened with my case
or any other case I was involved in.” This, from an officer
with twenty-one years on the Phoenix Police force. Soon
after the interrogation, Saldate destroyed the notes he
supposedly took while questioning Milke, so we have
absolutely nothing contemporaneous with the supposed
confession.
In effect, Saldate turned the interrogation room into a
black box, leaving us no objectively verifiable proof as to
what happened inside. All we have are the conflicting
accounts of a defendant with an obvious reason to lie and a
detective whose disdain for lawful process is documented by
one instance after another of lying under oath and other
misconduct.
No civilized system of justice should have to depend on
such flimsy evidence, quite possibly tainted by dishonesty or
MILKE V . RYAN 57
overzealousness, to decide whether to take someone’s life or
liberty. The Phoenix Police Department and Saldate’s
supervisors there should be ashamed of having given free 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 Attorney’s Office,
which continued to prosecute Saldate’s cases without
bothering to disclose his pattern of misconduct.
Indeed, given Saldate’s long history of trampling the
rights of suspects, one wonders how Saldate came to
interrogate a suspect in a high-profile murder case by himself,
without a tape recorder or a witness. And how could an
interrogation be concluded, and a confession extracted,
without a signed Miranda waiver? In a quarter century on the
Ninth Circuit, I can’t remember another case where the
confession and Miranda waiver were proven by nothing but
the say-so of a single officer. Is this par for the Phoenix
Police Department or was Saldate called in on his day off
because his supervisors knew he could be counted on to bend
the rules, even lie convincingly, if that’s what it took to nail
down a conviction in a high-profile case?
It’s not just fairness to the defendant that calls for an
objectively verifiable process for securing confessions and
other evidence in criminal cases. We all have a stake in
ensuring that our criminal justice system reliably separates
the guilty from the innocent. Letting police get away with
manufacturing confessions or planting evidence not only risks
convicting the innocent but helps the guilty avoid detection
and strike again.
Could the people of Arizona feel confident in taking
Milke’s life when the only thread on which her conviction
58 MILKE V . RYAN
hangs is the word of a policeman with a record of dishonesty
and disrespect for the law? Bad cops, and those who tolerate
them, put all of us in an untenable position.
Milke may well be guilty, even if Saldate made up her
confession out of whole cloth. After all, it’s hard to
understand what reason Styers and Scott would have had for
killing a four-year-old boy. Then again, what reason would
they have to protect her if they know she’s guilty? But I
seriously doubt the jury would have convicted Milke without
the purported confession. Indeed, without the confession,
there’s not enough evidence to support a conviction. Which
is why it’s very important that the confession be reliable and
lawfully obtained.
Both the district judge and the state trial judge found that
Saldate was telling the truth when he testified that Milke
waived her Miranda rights and didn’t ask for a lawyer. I
discount the state court’s finding because it was made with no
knowledge of Saldate’s repeated instances of lying under oath
and other professional misconduct. One hopes the judge
would have been more skeptical of Saldate’s account had she
been aware that Saldate was disciplined for taking advantage
of a female motorist and lying about it to his supervisors, and
that he habitually lied in court, abused the interrogation
process and disregarded Miranda.
Nor am I impressed by the district court’s finding. The
district judge was aware of Saldate’s suspension and noted it
in passing, Findings and Order at *4, Milke v. Ryan, No. CV
98-60-PHX-RCB, 2010 WL 383412 (D. Ariz. Jan. 29, 2010),
but he didn’t specify the nature of the misconduct, nor did he
acknowledge that Saldate’s supervisors had determined that
his “image of honesty, competency, and overall reliability
MILKE V . RYAN 59
must be questioned” as a result of the misconduct. It’s hard
to say he gave it due weight—or any weight at all.
The district judge did note Saldate’s Miranda violations
but, somehow, construed them as supporting Saldate’s
credibility. The judge reasoned that when Saldate had
violated Miranda in the past, he had admitted it in his reports:
“[Saldate] testified that [Milke] never asked for an attorney.
If she had, Saldate would have noted it and included the
information in his supplemental report. He had done so in
other cases, including cases where he continued to converse
with suspects even after they had invoked their right to
remain silent or their right to an attorney. In some of these
cases evidence was suppressed as a result of Saldate’s
conduct during the interrogations.” Id. at *6 (internal
citations omitted). The district court also found that “it was
Saldate’s practice to note in his reports if a suspect invoked
his right to remain silent or his right to an attorney. The fact
that his report in this case does not contain such a notation
supports his testimony that Petitioner did not ask for an
attorney at the outset of the interrogation.” Id. at *11.
I find this backward reasoning unpersuasive. This was a
high-visibility, high-pressure case, in which Saldate was
called in especially and given much responsibility. It is
highly doubtful he would have noted an invocation that
would have undermined the alleged confession. Far more
likely, Saldate had learned from earlier cases that
documenting a Miranda violation could result in the
exclusion of a confession and make him the object of judicial
ire. This may also explain why Saldate so hastily destroyed
the original notes from the interrogation. If they contained
his habitual documentation of Miranda and other
constitutional violations during the course of interrogation, he
60 MILKE V . RYAN
may have thought it wise not to have them available to
impeach his official report.
Finally, the district judge said nothing at all about
Saldate’s numerous instances of lying under oath, which
tainted prior criminal cases. I find this omission inexplicable
and conclude he must have overlooked them. Had the district
judge taken these incidents into account, he might well have
made a different finding.
I would reverse the district court’s finding that Milke
knowingly waived her rights under Miranda and Edwards v.
Arizona, 451 U.S. 477 (1981). The “confession,” if it was
obtained at all, was extracted illegally. There can be no
serious claim that admission of the confession was harmless.
I would therefore set aside Milke’s conviction on the separate
ground that it relied on an illegally-obtained confession that
probably never occurred, and bar use of the so-called
confession during any retrial of Milke.