Milke

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.

*1023 Equally troubling are Saldate’s unorthodox interrogation methods. Saldate has obtained confessions from people who were intoxicated, hospitalized and on pain medication. See Op. 1014; 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…

Opinion by Chief Judge KOZINSKI; Concurrence by Chief Judge KOZINSKI.

OPINION

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. Sal-date 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 Sal- *1001 date’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. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153-55 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (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…

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

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…