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Archive for December, 2014

LAW REVIEWS: The “Unreliability Principle” in Death Sentencing

DPIC   http://www.deathpenaltyinfo.org/node/5981

LAW REVIEWS: The “Unreliability Principle” in Death Sentencing


December 10, 2014

A forthcoming article by University of Miami law professor Scott E. Sundby in the William & Mary Bill of Rights journal examines the “unreliability principle” established by the U.S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. The article defines the unreliability principle as, “if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied.” That is, certain classes of defendants can be exempt from the death penalty because juries cannot be relied upon to adequately assess the mitigating factors. This principle applied to both intellectually disabled defendants in Atkins and juvenile defendants in Roper. Sundby argues that the principle should be extended to mentally ill defendants as well. Six factors that the court considered in Atkins and Roper are identified, and subequently applied to defendants with mental illnesses. Among the factors identified are the defendant’s impared ability to assist defense attorneys, the defendant’s impaired ability to serve as a witness, and the defendant’s distorted decision-making skills.

Sundby goes on to say that, “The six Atkins-Roper factors that identify when mitigation is beyond reliable assessment apply to mentally ill defendants with equal if not greater force.” He also argues that the principle could be extended to the death penalty as a whole, saying, “The reasoning behind the principle calls into question the reliability of the entire system in a manner that has not been examined for decades and opens a constitutional door for the courts to begin taking into account the advances over the past forty years in our understanding of the dynamics of human decision making.”

(S. Sundby, “The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unraveling,” William & Mary Bill of Rights, Vol. 23, forthcoming, 2014.) See Mental Illness and Law Reviews.

http://www.deathpenaltyinfo.org/node/5981

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POSSIBLE INNOCENCE: Arizona Court Dismisses Charges Against Former Death Row Inmate

POSSIBLE INNOCENCE: Arizona Court Dismisses Charges Against Former Death Row Inmate


December 12, 2014

Debra Jean MilkeOn December 11, an Arizona appeals court dismissed charges against Debra Jean Milke and barred retrial. Milke spent 22 years on death row for arranging the 1989 murder of her 4-year-old son. She was the first woman sentenced to death in Arizona since 1932. In 2013, the U.S. Court of Appeals for the 9th Circuit overturned Milke’s conviction because the prosecution had withheld evidence about misconduct committed by their primary witness, Phoenix Detective Armando Saldate, who testified that Milke had confessed to the murder. Saldate had previously been implicated of lying under oath, among other misconduct. There was no recording of a confession, and Milke insisted she was innocent and had never confessed. In its ruling on Thursday, the state court said it granted Milke’s request for dismissal, “because of the state’s severe, egregious prosecutorial misconduct in failing to disclose impeachment evidence.” Maricopa County prosecutors said they plan to appeal the decision to the Arizona Supreme Court. The two men who were convicted of carrying out the murder are still on death row.

http://www.deathpenaltyinfo.org/node/5983

(M. Muskal, “Arizona court tosses charges against woman on death row for 22 years,” Los Angeles Times, December 11, 2014; “Arizona drops murder charges against Debra Milke,” BBC News, December 11, 2014.) See Innocence.


Case tossed vs. woman held 22 years in son’s death!

Case tossed vs. woman held 22 years in son’s death

PHOENIX (AP) – A state appeals court has ordered the dismissal of murder charges against a woman who spent 22 years on Arizona’s death row for the killing of her 4-year-old son.The Arizona Court of Appeals on Thursday leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke’s trial about a detective with a long history of misconduct and lying. The court called prosecutors’ actions “a severe stain on the Arizona justice system.”

A three-judge panel of the appeals court said it agreed with Milke’s argument that a retrial would amount to double jeopardy.

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

The court said the charges against Milke in the 1989 death of her son Christopher can’t be refiled, but prosecutors could appeal Thursday’s ruling to the state Supreme Court.

Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in December 1989. He was then taken into the desert near Phoenix by two men and shot in the back of the head.

Authorities say Milke’s motive was that she didn’t want the child anymore and didn’t want him to live with his father.

She was convicted in 1990 and sentenced to death. The case rested largely on her purported confession to Phoenix police Detective Armando Saldate, which he did not record.

Milke, 50, was on death row for two decades, and the Arizona Supreme Court had gone so far as to issue a death warrant for Milke in 1997. The execution was delayed because she had yet to exhaust federal appeals.

The appeals court said Thursday it wasn’t expressing an opinion on Milke’s guilt or innocence, though it heavily criticized authorities for staking much of their case on a detective with credibility problems.

A federal appeals court threw out Milke’s first-degree murder conviction in March 2013, saying prosecutors knew about a history of misconduct by the detective but failed to disclose it. Maricopa County prosecutors were preparing for a retrial.

Lori Voepel, Milke’s appellate attorney, was ecstatic at Thursday’s victory.

Milke has been free on bail since September 2013 as she awaited retrial.

“This is really a sock in the gut – it’s a cheap shot,” said Arizona Milke, Christopher’s father and Debra Milke’s ex-husband. “She shouldn’t walk free, because she’s guilty.”

Maricopa County Attorney Bill Montgomery, whose office is handling the case, said he plans to ask the Arizona Supreme Court to overturn Thursday’s ruling.

Montgomery said the accusations of misconduct happened well before he took over as the county’s top prosecutor and would not happen today, citing safeguards such as having detectives record interviews with suspects.

Montgomery also said he would not be pursuing the case if he believed the evidence could not lead to a conviction in Christopher’s killing.

“He should not be forgotten in all of this. Justice and due process for Christopher is a right that he has, too,” Montgomery said. “And it’s the job of prosecutors, unfortunately in situations like this, where we have to be the voice of the voiceless.”

Milke has maintained her innocence and denied she ever confessed to the killing. The two men who led her child to his death in the desert were convicted of murder but refused to testify against Milke.

That left jurors with Saldate’s word alone that she told him about her involvement. Saldate has since retired, and The Associated Press has made repeated efforts to reach him for comment.

In its ruling overturning Milke’s conviction, the 9th U.S. Circuit Court of Appeals cited numerous instances in which Saldate committed misconduct in previous cases, including lying under oath and violating suspects’ rights. The federal appeals court also asked the Justice Department to investigate whether Saldate had committed civil rights violations.

Prosecutors insist Milke is guilty, but their ability to try her again was limited by the fact that Saldate said he wouldn’t testify. He fears potential federal charges based on the 9th Circuit’s accusations of misconduct.

In December, Superior Court Judge Rosa Mroz granted Saldate’s request to assert his Fifth Amendment right, allowing him to refuse to take the stand.

The state Court of Appeals overturned that ruling in April and said Saldate would be forced to testify at the retrial. Both county and federal authorities said they don’t intend to seek charges against the detective based on any of the accusations leveled by the federal appeals court.

Milke, whose mother was a German who married a U.S. Air Force military policeman in Berlin in the 1960s, has drawn strong support from citizens of that nation and Switzerland, neither of which has the death penalty.

Milke’s mother died in Germany this year after a battle with cancer. A week before the August death, a judge had denied Milke’s request for permission to travel to Germany to visit her mother.


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