Milke - Exhibits to support Motion to Dismiss

8/13/2019 Milke - Exhibits to support Motion to Dismiss

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EXHI IT


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CR 1989-012631

HON. ROSA MROZ

STATE OF ARIZONAv.DEBRA JEAN MILKE (A)

SUPERIOR COURT OF ARIZONAMARICOPA COUNTY

Michael K. Jeanes, Clerk of Court*** Electronically Filed***12/19/2013 8: AM

12/18/2013

CLERK OF THE COURTJ. Matlack

Deputy

VINCE H IMBORDINO

MICHAEL D KIMERERLORI L VOEPELLARRY L DEBUSCAPITAL CASE MANAGER

UNDER DVISEMENT RULING

The Court has considered the following: (1) State s Memorandum Regarding WitnessInvocation of Fifth Amendment Privilege and Request for Hearing; (2) Defendant s PreliminaryResponse to State s Memo to Correct Record re: Saldate s Expressed Intent to Invoke 5thAmendment Privilege and Consult with Counsel; (3) State s Reply to the Defendant sPreliminary Response; (4) Defendant s Responsive Memo re: Witness Invocation of 5thAmendment Privilege and Request for Hearing; (5) Saldate s Response to State s Motion re:Saldate s Right to Invoke His 5th Amendment Privilege; (6) State s (Second) Memorandum re:Witness Invocation of 5th Amendment; (7) Defendant s Response to State s (Second)Memorandum regarding Witness Invocation of Fifth Amendment Privilege; (8) Saldate sSupplemental Response to State s Motion re: Saldate s Right to Invoke his 5th AmendmentPrivilege; (9) Supplement to Defendant s Response to State s (Second) Memorandum regardingWitness Invocation of Fifth Amendment Privilege; (10) the Ninth Circuit opinion in Milke vRyan; 1 0) State s Notice of United States Department of Justice Decision; (11) Notice of Letterfrom United States Attorney s Office, and (12) oral arguments made.

1 711 F.3d 998 (9th Cir. 2013)Docket Code 926 Form ROOOA Page 1


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Preliminary Matters

SUPERIOR COURT OF ARIZONAMARICOPA COUNTY12/18/2013

First, the Court wants to address the State's contention that this Court should not haveasked whether Detective Saldate ( Saldate ) needed a lawyer before he testifies in this case. TheCourt agrees with the State that courts do not generally inquire if witnesses need lawyers toprotect their rights when a conviction is overturned and a new trial is ordered. However, this isnot a normal case. The Ninth Circuit specifically referred Saldate to the United States Attorneyfor the District of Arizona and to the Assistant United States Attorney General of the CivilRights Division, for possible investigation into whether Saldate's conduct, ... , amounts to apattern of violating the federally protected rights of Arizona residents. 2 This Court would beremiss in its duties were it to ignore such an obvious issue.

Second, the parties have asked this Court to address whether the Ninth Circuit'sinterpretation of the eight cases cited in the Opinion can be challenged, or are subject to law ofthe case or collateral estoppel determinations. This issue is the subject of a separate motionfiled by the defense and will be decided at a later date. The Court reviewed the informationabout these eight cases at this time only for the purposes of determining the legitimacy ofSaldate's invocation of his Fifth Amendment rights. While this Court does not fully agree withthe conclusions reached by the Ninth Circuit in every case, the Court finds that Saldate does havea legitimate reason to fear prosecution arising out of his conduct in these cases.Invocation o Fifth mendment Privilege

At the December 13,2013 hearing, Saldate confirmed that he is asserting his privilegeagainst self-incrimination. He further stated that if ordered to testify, he will testify consistentwith his previous testimony.

The court must assess the legitimacy of any claim of privilege.3 In assessing the claim ofprivilege, the court considers whether the witness has provided a factual predicate sufficient forthe court to evaluate the claim of privilege,4 and whether the witness has demonstrated areasonable apprehension of danger.5

2Jd at 1019-20.3 See State v McDaniel 136 Ariz. 188, 193-195,665 P.2d 70 (1983); State v Cornejo 139 Ariz. 204 677 P 2d1312 (App. 1983); State v Maldonado 181 Ariz. 208, 211, 889 P.2d I, 4 (App. I 1994).

State v Rosas-Hernandez 202 Ariz. 212, ~ 1 7 42 P.3d 1177 (App. Div.l 2002)).5 Flagler v Derickson 134 Ariz. 229, 231, 655 P 2d 349, 352 ( 1982)( witness must apprehend a real andappreciable danger of prosecution ); United States v Vavages 151 F.3d 1185, 1192 (9th Cir. 1998)(privilegejustified on showing of substant ial and real, and not merely trifling or imaginary, hazards of incrimination ).Docket Code 926 Form ROOOA Page 2


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Factual Predicate


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Saldate was the main witness at the Defendant's 1990 trial, at the Rule 32 hearing, and atthe federal habeas proceeding in 20 I 0. The Court has reviewed the trial, the Rule 32/postconviction and the habeas proceedings and is familiar with the questions asked of Saldate. TheState confirmed that the relevant questions to be asked of Sal date by the State in any future courthearings would be substantially similar to those previously asked. Additionally, the Courtanticipates questions from the Defendant related to the impeachment materials described in theNinth Circuit opinion.THE COURT FINDS that Saldate has provided a factual predicate sufficient for thecourt to evaluate the claim of privilege.

Reasonable Apprehension o DangerThe Ninth Circuit opinion makes it clear that the court believed that Saldate lied under

oath or disregarded suspects' constitutional rights and the court referred Saldate to the UnitedStates Attorney for the District of Arizona and to the Assistant United States Attorney General ofthe Civil Rights Division, for possible investigation into whether Saldate's conduct, .. . , amountsto a pattern of violating the federally protected rights of Arizona residents. 6 As stated suprawhile this Court does not fully agree with the conclusions reached by the Ninth Circuit in everycase, the Court does find that Sal date has a legitimate reason to fear prosecution arising out of hisconduct in the cases cited by the Ninth Circuit. Furthermore, the Ninth Circuit concluded, inadvance, that if Sal date testifies consistently with his previous testimonies, he would exposehimselfto a perjury prosecution.7

The State argues that Saldate does not have a reasonable apprehension of danger becausefederal authorities declined to prosecute Saldate and the Maricopa County Attorney's Officedoes not intend to prosecute Sal date for any past testimony.

A. U.S. Attorney's LetterOn August 30, 2013, the U.S. Attorney for the District of Arizona wrote a letter

indicating that it received an Order from the Ninth Circuit for a possible investigation of whether6Mifke 7 F 3dat 1019-20.

The Court is aware that a witness may not invoke the Fifth Amendment privilege in connection with the potentialfor perjury charges related to future truthful testimony. United States v Vavages 5 F.3d 1185, 1192 (9th Cir.1998) (fear of perjury prosecution as result of future truthful testimony insufficient to support claim of privilege;shield against self-incrimination ... is to testify truthfully, not to refuse to testify on basis witness may faceprosecution for lie not yet told. ).Docket Code 926 Form ROOOA Page 3


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Saldate's conduct as identified in the Milke opinion constituted viable civil rights violations. tconcluded that any criminal prosecution would be barred by the applicable federal statute oflimitations period. As a result, this office declines to pursue charges for the referred conduct. 8

Although the U.S. Attorney appears to have declined criminal charges, the declination isvery limited:

1 The U.S. Attorney only addressed viable civil rights violations and did not addressany possible federal perjury charges arising from any of Saldate's testimony.2 The U.S. Attorney declined prosecution on the basis of applicable federal statute oflimitations period. The applicable federal statute of limitations period is 5 years. 9

While the statute of limitations may have run in reference to Saldate's 1990testimony, the statute of limitations has not expired for Saldate's 2010 testimony.

3 If Saldate testifies consistently with his prior testimonies in future court proceedings,he may be subject to prosecution under a theory of continuing conspiracy to violationof civil rights because some of the defendants in the eight cases mentioned in theMilke opinion are still serving sentences, and some are still in the process ofappealing their conviction.10 The statute of limitations does not begin to run until thelast overt act leading to accomplishment of the conspiracy was committed.11Furthermore, as to the Defendant specifically, each time Saldate testifies against hercould be deemed are-violation ofher civil rights which would allow the statute oflimitations to begin anew.

4. This U.S. Attorney did not grant immunity for past acts or future testimony toSal date.5 The U.S. Attorney specified that he cannot speak for any other prosecution agencythat may have, or have had, jurisdiction over Mr. Saldate's conduct.

August 30,2013 letter from Monica Klapper, Assistant United States Attorney, to Vince lmbordino, DeputyCounty Attorney, attached to the Notice of Letter from United States Attorney's Office.9 18 U.S.C., Chapter 213.1 Exhibit A of the Supplement to Defendant's Response to State's (Second) Memorandum Regarding WitnessInvocation of Fifth Amendment Privilege.

Culp v United States 131 F.2d 93, I 00 (8th Cir. 1942).Docket Code 926 Form ROOOA Page 4


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B DOJ Letter


12/18/2013

On December 6, 2013, the Civil Rights Division ofthe U.S. Department of Justice wrotea letter stating:The Criminal Section of the Civil Rights Division ... specifically reviewed whether thefacts and circumstances surrounding Saldate's conduct in the State v Milke prosecutionand subsequent habeas proceedings supported a prosecutable violation of the federal

criminal civil rights statutes . . .we have reviewed the available evidence in thismatter ...and concluded that the evidence does not support a prosecutable violation of theapplicable federal criminal civil rights statutes. Accordingly, the Criminal Sectiondeclines prosecution in this matter. 12Similar to the U.S. Attorney's letter, DOJ s letter declining to prosecute Saldate is

limited:I. The Ninth Circuit specifically asked DOJ to investigate 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. (Emphasis added).Instead, the DOJ only declined prosecution related to the facts and circumstancessurrounding Saldate's conduct in the State v Milke prosecution nd subsequenthabeas proceedings . (Emphasis added). The DOJ s letter did not make anyreferences to Saldate's conduct in the eight other cases that the Ninth Circuit foundproblematic nor did it make any references to the 2009 allegations involving BelindaReynolds. It is important to note that Saldate was not cross-examined about thesecases at the previous trial. The defense has already indicated that Saldate will becross-examined about them in any future proceedings in this case. Depending on howSaldate answers those questions, his testimony could be used against him to supportany potential federal criminal civil rights charges from these eight cases and theReynolds case.

2 DOJ did not decline to prosecute any perjury charges arising from any of Saldate'stestimony.

3 DOJ did not grant immunity for past acts or future testimony to Saldate.

12 December 6, 2013letter from Robert Moossy, Jr., Chiefofthe Criminal Section ofthe Civil Rights Division, toBill Montgomery, Maricopa County Attorney, attached to the Notice of United States Department of JusticeDecision.Docket Code 926 Form ROOOA Page 5


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C. Perjury Charge


Mr. Imbordino, the representative of the current Maricopa County Attorney, BillMontgomery, orally confirmed that his office does not intend to prosecute Sal date for any pasttestimony. The Court notes, however, that MCAO did not provide Saldate with a written letterguaranteeing him that he is free from prosecution now and in the future. 3 The Court simplynotes that under Arizona law, perjury is a class 4 felony. 4 The statute of limitations on a class 4felony is seven years. 5

Furthermore, MCAO has no jurisdiction over any federal perjury charges arising fromSaldate s 20 I 0 testimony, and cannot assure Sal date that he will not be prosecuted in federalcourt.

Based on the foregoing,THE COURT FINDS that Saldate has demonstrated a reasonable apprehension of

danger that, if compelled to answer, he would face criminal charges based on his past testimonyand/or present disclosures, and that the Fifth Amendment affords protection.Blanket Assertion of Privilege:

Generally, a blanket privilege cannot be asserted. The claim of privilege may be raisedas to specific relevant questions; each question must clearly seek testimony incriminating to thewitness. 6 However, if a judge determines that a witness could legitimately refuse to answeressentially all relevant questions, then that witness may be totally excused without violating thewitness s Sixth Amendment right to compulsory process. 7 [T]his exception is a narrow one.It is only applicable when the trial judge has extensive knowledge of the case and rules that theFifth Amendment would be properly invoked in response to all relevant questions that the partycalling the witness plans on asking. 8

The Court has extensive knowledge about this case because it has reviewed most of thetranscripts from the trial, transcripts and exhibits from the 20 I 0 federal court hearing, the Ninth3 The Court does not know if an oral confirmation would suffice to bind future Maricopa County attorneys fromprosecuting Saldate.4 A.R.S. I3-2702(B).5 A.R.S. 13-I07(B)(I).6 State v McDaniel I36 Ariz. I88, 665 P.2d 70 (I983), abrogated on other grounds by State v Walton I59 Ariz.57 I, 769 P.2d IOI7 (I989); see State v Maldonado I8I Ariz. 208, 2II, 889 P.2d I, 4 (App. I I994).7McDaniel I36 Ariz. at I94, 665 P.2d at 76.18JdDocket Code 926 Form ROOOA Page 6


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Circuit Opinion and records from the eight cases cited in the Ninth Circuit Opinion, as well as anumber of exhibits submitted by the State and the defense. The State has confirmed that therelevant questions to be asked to Saldate in future proceedings will be substantially similar tothose asked of Sal date previously. The defense has confirmed that it will impeach Sal date withthe information from the cases mentioned in the Ninth Circuit opinion.

THE COURT FINDS that Saldate may make a blanket assertion of privilege.Conclusion

A judge may deny the claim of privilege only where it is ' perfectly clear' from a carefulconsideration of all the circumstances in the case, that the witness is mistaken and that theanswer cannot possibly have such tendency to incriminate. 9 This places a heavy burden on thejudge who decides to compel testimony over a Fifth Amendment claim.

After careful consideration of the totality of the circumstances, the Court finds that it isnot perfect ly clear that Saldate is mistaken and that his testimony could not possibly have thetendency to incriminate him. Accordingly,

IT IS ORDERED denying the State's request to compel Saldate to testify over Saldate'sFifth Amendment claim.

IT IS FURTHER ORDERED setting a Status Conference on January 17 2014 at 2:00p m to discuss what issues remain given the Court s decision.This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.

Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determinetheir mandatory participation in eFiling through AZTurboCourt.

9 Malloy v Hogan 378 U.S. I, 2 (1964), citing Hoffman v United States 34 U.S. 479,488 (1951).Docket Code 926 Form ROOOA Page 7


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HON. ROSA MROZ

STATE OF ARIZONAv

DEBRA JEAN MILKE (A)


Michael K Jeanes, Clerk of Court***Filed***

09/05/2013

CLERK OF THE COURTJ MatlackDeputy

VINCE H IMBORDINO

MICHAEL D KIMERERLORI L VOEPELCAPITAL CASE MANAGERD C MATERIALS-CSCPSA RELEASE REPORTS

UNDER ADVISEMENT RULING

The Court has considered the Defendant s Motion to Set Bond, the State s Response, theDefendant s Reply, the exhibits submitted, and the arguments of counsel.The Defendant s son was murdered on December 2, 1989. In 1990, a jury convicted theDefendant ofthat murder. On March 14, 2013, the Ninth Circuit Court ofAppeals overturnedthe Defendant s conviction based on the prosecution s Brady violation in failing to discloseimpeachment evidence related to (now retired) Phoenix Police Detective Saldate. The NinthCircuit opinion detailed Detective Saldate s various instances ofmisconduct, ranging from lyingto internal affairs investigators and lying under oath, to violations of various defendants Fourthand Fifth Amendment rights, and ruled that the information regarding these instances ofmisconduct were Brady material that should have been disclosed to the defense. See Milke vRyan 711 F.3d. 998 (91h Cir. 2013).After reviewing the exhibits submitted for the Simpson hearing, the Court agrees with theNinth Circuit court s opinion that the only direct evidence linking the Defendant to the crimes isthe Defendant s alleged confession to Saldate. Although the State would like the Court to focus

Docket Code 926 Form ROOOA Page 1


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on the fact that the Defendant has already been convicted once by a jury and urged the Court toignore the allegations against Sal date for the purposes of the Simpson hearing, the Court cannotdo that. Much has transpired since the original trial. Back then, the jury did not have the benefitof the information against Sal date that the Ninth Circuit court ruled was Brady material. ThisCourt also cannot simply ignore the Ninth Circuit court's opinion and all the information thatthis Court now has in its possession.

The Brady material casts serious doubts on the validity of the Defendant's allegedconfession. The Court has not yet been able to weigh Saldate's credibility against the credibilityof the Defendant in deciding whether the alleged confession is valid and admissible. That will bedone at the suppression hearing set for September 23, 2013. In the meantime, this Court mustdecide the bond issue based on the totality of the existing information. The existing informationdoes not make it plain and clear to the understanding, and satisfaction, and apparent to the wellguarded, dispassionate judgment of this Court that the Defendant committed the crimes. SeeSimpson v Owens 207 Ariz. 261,272, 40 (App. 2004).

THE OURT FINDS that the proof is not evident or presumption great that theDefendant committed the crimes charged in the Indictment.Accordingly,IT IS ORDERED setting a secured bond in the amount of $250,000.IT IS FURTHER ORDERED that the Defendant shall comply with the followingadditional terms:1 Once bond is posted, the Defendant is also subject to the supervision restrictions andconditions of the Pretrial Services Agency, including electronic monitoring program,which includes a curfew between the hours of 9 p.m. and 6 a.m.2 The Defendant is not to initiate contact of any nature with Arizona Milke.3 The Defendant is not to possess any weapons and is not to possess any drugs withouta valid prescription.4 The Defendant is not to drink alcoholic beverages and drive, or drive without a validdriver's license.

Docket Code 926 Form ROOOA Page 2


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MDK Kimerer MichaelFromSentTo

Larry Debus Tuesday, September 10, 2013 2:[email protected]

Cc Desiree Ellis; Larry Debus; MDK KimerE f, Michael; 'Imbordino Vince([email protected])'

Subject FW: Saldate

Neither have an objection to sharing this with the court.Larry Debus

From Larry DebusSent Tuesday, September 10 2013 10:19 AMTo 'Imbordino Vince ([email protected])'; 'MDK Kimerer, Michael'Cc: Desiree Ellis; Tracey Westerhausen; 'Larry Debus ( [email protected])'Subject SaldateVince and Mike, The following are the decisions Mr. Said ate has arrived at with my advice and counseling. Since I wascourt appointed for a witness I believe I need to share this with the court. Do either of you have an objection.Larry1} Mr. Saldate will assert his Fifth Amendment privilege and refuse: to testify . This refusal is based on severalfactors.a. First, and foremost, is the language of the Ninth Circuit court or page 21 of the Milke opinion. The court hasconcluded, in advance, that should he testify consistent with his previous testimony that he would expose himself to aperjury prosecution."b. While you may be able to seek immunity for past tes timony, I q'..testion your ability, or success, to get immunityfor any and all future testimony in this case. I do not think it is possible.c. If, as the Ninth Circuit states, testimony consistent with his previous trial testimony, subjects him to a perjuryprosecution so too would t subject him to a Civil Rights prosecution on the very same basis.d. A federal grant of immunity would have to include any federal Civil Rights or other crimes arising out of anyprevious or future testimony including the suppression hearing in 2010. I do not believe such an immunity is possible.However, should you get such an agreement from the United States Department of Justice it would have to be signed bythe Assistant United States Attorney for the Civil Rights Division of the United States Department of Justice and theUnited States Attorney for the District of Arizona.2) Mr. Saldate will not voluntarily cooperate with the Maricopa County Attorney's office in the preparation of theircase. Assertion of the privilege prevents him from doing so. In addition, he is not inclined to assist in light of thetreatment he has previously experienced from the Phoenix Police Department and the Arizona Attorney General'sOffice. Neither is Mr. Saldate able or willing to cover attorney fees that would be necessary to provide him legalassistance during this time. I have accepted an appointment limited to representation of Mr. Saldate at the September23, 2013 hearing.3) I have anticipated that you may claim waiver. State vs. Harrod, 218 Az. 268. Waiver requires a knowing andvoluntary act. There are a number of factors that can lead to but one conclusion. There was no waiver by Mr. Sal date in1990 or 2010. 'a. Mr. Saldate did not make the required knowing or voluntary waiver of his Fifth Amendments rights. There is norecord of so much as a discussion of waiver in 1990 or 2010.

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b Mr. Saldate was unrepresented in 1990. Without the advice of counsel there can never be a knowing orvoluntary waiver of one's Fifth Amendment rights.c Mr. Saldate's testimony in 2010 was in a hearing limited in purpose to determining conformity wi th Miranda.Mr. Saldate was unrepresented in 2010 as well.d. The allegations of significance to Mr. Saldates assertion of privilege here did not arise until subsequent to thetestimony of Mr. Saldate and therefore cannot be the predicate for a knowing waiver.e. The first knowledge that would have given rise to a consideraticn of assertion of his Fifth Amendment privilegeby Mr. Saldate came on March 13, 2013 with the publishing of the opinion of the Unites States Court of Appeals in Milkev Ryan Any consideration by Mr. Saldate of assertion of a knowing waiver of his Fifth Amendment privilege could nothave come before this date.f Harrod is a knowing waiver case and involves the marital privilege. This is neither.The arguments of Harrod are trumped by the Unites States Constitutional privilege against self-incrimination.larry DebusLarry L ebusDebus, Kazan Westerhausen, Ltd.335 East Palm lanePhoenix, AZ 85004Telephone- (602) 257-8900Facsimile- (602) [email protected] information contained in this electronic message is confidential and intended solely for the use of the individual orent ity named above. f the reader of this message is not the intended recipient, you are hereby notified that anydissemination, distribution, copying or unauthorized use of the communication is strictly prohibited. f you havereceived this email in error, please not ify the sender immediately by t e l ~ p h o n e Thank you.

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HON. ROSA MROZ

STATE OF ARIZONAv



Michael K. Jeanes, Clerk of CourtElectronically Filed09/16/2013 8:00AM

09/12/2013


VINCE H IMBORDINO

MICHAEL D KIMERERLORI L VOEPELLARRY L DEBUSCAPITAL CASE MANAGERJUDGE WELTY

CAPITAL/COMPLEX CASE MANAGEMENT CONFERENCE3:28p.m.Courtroom 7D - SCTState's Attorney:Defendant's Attorney:Defendant:Attorney:

Vince lmbordinoMichael Kimerer Lori VoepelNot Present Presence WaivedLarry Debus (Representing Det. Sal date)Court Reporter, Monica Hill-Morrisette, is present.A record of the proceeding is also made by audio and/or videotape.Discussion held regarding (former) Detective Saldate's invocation of his right againstself-incrimination (hereinafter 51h Amendment privilege ).

Docket Code 081 Form R027 Page 1


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Mr. Debus, Saldate s attorney, confirms that Saldate will be invoking his 5th Amendmentprivilege at the suppression hearing scheduled for September 23, 2013.

The State anticipates filing a motion to appoint counsel for Saldate who is willing toadvise Saldate for the County contract rate so that Saldate can be more fully advised as to hisoptions. The State anticipates attaching voluminous material to the motion that will allegedlyrebut the 9th Circuit Court s findings that Saldate lied and was found to have violated defendantsconstitutional rights. The State contends that the Court cannot make a decision on whetherSaldate has the right to invoke his 5th Amendment privilege without reviewing those materials.

Debus states that although the Court has appointed him for the hearing set on September23, 20 13 he wi be Saldate s attorney outside of that hearing. The Court expresses concern asto whether it has the legal authority to interfere in Saldate s attorney-client relationship.After discussion,T IS OR ERE that Saldate shall appear on September 23, 2013, to invoke his 5thAmendment privilege in open court. At that time, Saldate shall also tell the Court whether he is

willing to work with an attorney who is not Debus if the Court grants the State s motion toappoint counsel.IT S FURTHER OR ERE that the suppression hearing of September 23 2013 is

vacated nd reset as a status conference. The Court will set another suppression hearing, ifnecessary, after deciding whether Saldate has the right to invoke his 5th Amendment privilege.Discussion held regarding the trial date of September 30,2013. Mr. Kimerer states that

now that the Defendant is out of custody, the urgency to try the case has subsided and that heneeds more time to prepare the case for trial. Kimerer further states that his client is willing towaive time. Mr. Imbordino is in agreement.IT S OR ERE vacating the trial set for September 30, 2013. The Court will reset thetrial date once issues regarding Saldate s 5th Amendment privilege and the Defendant s allegedconfession has been resolved.Discussion held regarding the last day for this case. It is currently set for October 72013. The Court believes that the State has a 2 year time limit to try the Defendant from the date

of the case is returned back to superior court for a new trial, pursuant to Criminal Rule 8.2(a)(4).Accordingly,



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IT IS ORDERED setting the last day as July 8 2015. If there is any dispute about thislast day, the parties shall notify the Court within 3 judicial days, otherwise it is deemed waived.State orally moves the Court for an Order to prevent Debra Milke from contacting

witnesses in the case, such as her family members, as part of her release condition. Afterdiscussion,IT IS ORDERED that the State shall file a written motion, citing legal authority, thatallows the Court to prevent a defendant from contacting witnesses, such as her own familymembers. The defense will have an opportunity to respond.IT IS FURTHER ORDERED affirming prior release conditions/orders.3:53p.m. Matter concludes.This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.

Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determinetheir mandatory participation in eFiling through AZTurboCourt.LATERThe Court has reviewed Criminal Rule 8.2(c) which states that [a] trial ordered upon the

reversal of a judgment by an appellate court shall commence within 90 days of the service of themandate of the Appellate Court. Based on this rule, it appears that the correct last day is in factOctober 7 2013. Accordingly,IT IS ORDERED vacating the Court's prior determination that the last day is July 82015. The Court wi discuss waiving time for the commencement of the trial with counsel onSeptember 23,2013.



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Michael K Jeanes, Clerk o CourtElectronically Filed09/17/2013 8:00AM

09/16/2013

HON. ROSA MROZCLERK OF THE COURT

J MatlackDeputy

STATE OF ARIZONA VINCE H IMBORDINOv

DEBRA JEAN MILKE (A) MICHAEL D KIMERERLORI L VOEPELLARRY L DEBUSCAPITAL CASE MANAGER

ORDER ENTERED

The Court has read an article written by J.J. Hensley in the Arizona Republic regarding apress conference held on September 13,2013, by Maricopa County Attorney Bill Montgomeryabout this case. The Court was surprised to learn that the State has received a letter from federalprosecutors n late ugust saying that the statute o limitations had expired on any misconductby Sal date. The Court has had hearings in this case in which the very issue o whether DetectiveSaldate is being investigated by the Justice Department and whether he needed to have anattorney was discussed:

August 23, 2013

Docket Code 023

Discussion held regarding whether Detective Saldate needs a lawyer to represent him in the suppression hearing because the Ninth Circuit referredhim to the U.S. Attorney s Office to investigate whether Detective Saldatecommitted any civil rights violations. Mr. Imbordino, stated that to hisknowledge the U.S. Attorney has not taken any action to investigateanyone arising out o this case.

Form ROOOA Page I


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August 30, 2013

' September 122013


09/16/2013

Discussion held regarding Detective Saldate's retention of Mr. Debus ashis lawyer to advise him regarding his potential criminal liability. TheCourt appoints Mr. Debus to advise Detective Saldate for the purposes ofthe suppression hearing.Mr. Debus confirms that he advised Detective Saldate to invoke his FifthAmendment privilege against self-incrimination.

If the news article is accurate, then the Court finds it curious that the State did not informthis Court about the federal prosecutors' letter. The State has had numerous opportunities toinform the Court of this development, including at the September 12, 2013 hearing, which wasjust the day before the press conference.

The Court has also reviewed the State's Memorandum Regarding Witness Invocation ofFifth Amendment Privilege which this Court received on September 13 2013, after Mr.Montgomery's press conference. This Memorandum asks the Court and Mr Debus to conducta thorough and extensive investigation before the Court asks Detective Saldtate what hisintentions are regarding the invocation of his th Amendment privileges. The State makes nomention of the letter in this Memorandum either.

The Court also does not know if Mr. Debus or the Milke defense team knew oftheinformation revealed at a press conference. Neither the Court nor Mr. Debus can make aninformed decision if we do not have all the facts. Accordingly,

IT IS ORDERED that the State produce the letter, if it exists, from the federalprosecutors to this Court, Mr. Debus and the Milke defense team by no later than September 202013.

IT IS FURTH R ORDERED that the status conference set for September 23,2013 forDetective Sa1date to come to court to tell the Court of his decision is vacated to allow Mr. Debusand the Milke defense team time to review the federal prosecutors' letter and the informationcontained in the State 's Memorandum.

IT IS FURTHER ORDERED that while Detective Saldate need not appear onSeptember 23, 2013, the attorneys for the State and the defense shall appear to discussscheduling issues. Mr. Debus need not appear if he will inform the Court in advance of thehearing how much time he needs to review the information and what dates he cannot be in courtin the months of October and November.Docket Code 023 Form ROOOA Page 2


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IT IS FURTHER ORDERED that Mr. Imbordino shall file a written explanation bySeptember 20 2013 as to why the State did not inform the Court o the federal prosecutorsletter and instead chose to reveal the information through a press conference, i in fact the letterexists.

This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determinetheir mandatory participation in eFiling through AZTurboCourt.

Docket Code 023 Form ROOO Page 3


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Michael K. Jeanes, Clerk of Court***Electronically Filed***09/25/2013 8:00AMSUPERIOR COURT OF ARIZONAMARICOPA COUNTY

CR 1989-012631 09/23/2013

HON. ROS MROZCLERK OF THE COURT

J MatlackDeputy

STATE OF ARIZONA VINCE H IMBORDINOv

DEBRA JEAN MILKE (A) MICHAEL D KIMERERLORI L VOEPELLARRY L DEBUSCAPITAL CASE MANAGERJUDGE WELTY

CAPITALlCOMPLEX CASE MANAGEMENT CONFERENCE/TRIAL SET/LAST DAY EXTENDED1:31 p.m.Courtroom 7D - SCTState s Attorney:Defendant s Attorney:Detective Saldate s Attorney:Defendant:

Vince ImbordinoMichael Kimerer Lori VoepelLarry DebusPresent

Court Reporter, Monica Hill-Morrisette, is present.A record of the proceeding is also made by audio and/or videotape.Discussion held regarding the State s Notice of Letter from United States Attorney sOffice. The Court finds the State s explanation as to why the Court was not informed about sucha letter surprising. The Court advises the State that if the State believes the information to berelevant enough and developed enough to discuss it at a press conference, then the State should

have given the information to the Court because the Court will be deciding whether DetectiveSaldate may invoke his privilege against self-incrimination, not the media.Docket Code 027 Form R027 Page 1


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Discussion held regarding the last day and trial dates. The parties stipulate to a Last Dayof February 27,2015.

Discussion held regarding Detective Saldate. His attorney, Larry Debus, informs theCourt that his advice remains that Saldate should invoke his 5th Amendment privilege againstself-incrimination, and that Saldate still plans to invoke this privilege.

IT IS ORDERED that the State shall file a Motion/Memo regarding Saldate s ability toinvoke his 5th Amendment privilege by October 31,2013. The Defense and Mr. Debus sResponse is due by November 15,2013.

IT IS FURTHER ORDERED setting an Evidentiary Hearing re: State s Motion orMemorandum re: Detective Saldate s Ability to Invoke his th Amendment Privilege onDecember 6, 2013 at 1:30 p.m. (3 hours) in this division. Detective Saldate shall be presentfor this hearing.

Discussion held regarding Defendant s Motion to Suppress confession. State indicates itwill file its Response today.

IT IS ORDERED that the Defense shall file its Reply by October 31, 2013.IT IS FURTHER ORDERED setting an Evidentiary Hearing re: Defense s Motion toSuppress for January 13th, 14 1St , 16t and 11 2014 at 1:30 p.m. in this division.Defense indicates that it will file a motion to preclude the court s consideration of State s

materials that will rebut the 9th Circuit court s finding. It will also be filing a motion to dismissbased on double jeopardy grounds.Discussion held regarding the parties trying the case in the media. The Court indicates

that both sides shall act professionally and ethically. The Court is not ready to issue a gag orderabout this case. The Court invites the parties to file a written motion about this issue if theybelieve there is enough facts to support a gag order.

IT IS ORDERED setting this matter for Firm Trial on February 2, 2015 at 10:30 a.m. inthis division.IT IS FURTHER ORDERED setting Final Trial Management Conference (FTMC) on

January 23, 2015 at 8:30a.m. before Judge Rosa Mroz.Docket Code 027 Form R027 Page 2


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Case Management OrdersThe Court has reviewed the case management plan.

09/23/2013

IT IS ORDERED setting the following schedule for disclosure, discovery, and pre-trialprocedures unless the parties obtain written modifications from the Court:Please note that the Court requires that the disclosure of information required for theaggravation and penalty phases under Criminal Rules 15.1 i) and 15.2 h) to be specific.The Court considers disclosures stating that the party will call the same witnesses andpresent the same evidence as those presented in the guilt phase to be DEFICIENT.

1 The State shall disclose the specific information required to be disclosed underCriminal Rule 15.1 i) 3) aggravation phase) by November 1, 2013.2 The defense shall disclose the specific information required to be disclosed underCriminal Rule 15.2 h) l ) mitigating circumstances; aggravation and penalty phase)by Apri130, 2014.3 The State shall disclose the specific information required to be disclosed underCriminal Rule 15 1 i) 5) penalty phase and rebuttal for aggravation phase) by June

30 2014.4 The defense shall disclose the specific information required to be disclosed under

Criminal Rule 15.2 h) 3) rebuttal to penalty phase and surrebuttal for aggravationphase) by August 29,2014.5 All witnesses shall be interviewed by October 3, 2014.6 All documents requiring translation shall be submitted to Court Interpretation andTranslation Services CITS) by October 3, 2014. The parties shall advise the Courtand CITS of any interpreter needs by December 2, 2014.7 All substantive motions shall be filed by November 21, 2014.8 All motions in limine shall be filed by January 9, 2015, and Responses filed by

January 20, 2015.1 For the State, the Court expects specificity as to witnesses and exhibits that will support each aggravatingcircumstance alleged.Docket Code 027 Form R027 Page 3


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CR I989-0 I263I

SUPERIOR COURT OF ARIZONAMARICOPA COUNTY09/23/20I3

I. Voir dire. This Court uses individual voir dire in capital cases. Counsel mayconduct a limited and reasonable examination of each potential juror following the Court'squestioning. In the normal case, 5 minutes per side is considered reasonable. Juryconditioning will not be allowed.

2 Notification of order of proof. Each side shall notify the other on a rollingforty-eight hours' basis of the order in which witnesses will be called. From time to time,counsel may be asked to inform the jury of their order of proof. (Witnesses may be scheduledout of order on agreement of counsel or, if necessary, by order of Court.)

3 Jury questions will be reviewed with counsel and, if appropriate, answered at thefirst available opportunity.4. Expert opinions. Counsel are strongly encouraged to elicit the expert' s opinion at

the earliest, available opportunity. The hypothetical question has been abolished, and thewitness' qualifications should be quickly established. In the first ten minutes, the jury shouldknow who the witness is and why the witness is present.

5. Objections shall be stated succinctly and clearly without extended comment orargument. Speaking objections will not be allowed. Although the court will allowcontemporaneous making of the record outside of the presence of the jury, consider thefrequency of these requests as it may affect the jury s perception of your case.

6 Permission to approach and/or publish. Counsel need not ask the Court' spermission to approach the clerk or a witness, nor need counsel ask the Court's permission topublish or pass an exhibit which has been received in evidence to the jury.

7 Microphones. Because of the acoustics of our courtroom, it is often difficult tohear a speaker. For the benefit of the jurors and court staff, it is appreciated if all speakers usethe assistance of a microphone, whether at the podium or the attorney tables. A microphone isalso provided for witnesses.

8 Technology, Counsel are encouraged to make maximum, effective use of themany forms of trial and courtroom technology which are available. Counsel should ensure thatthe technology is appropriately set up and working properly before its use is attempted in court.

9 Daily schedule. A trial day is from I 0:30 a.m. to 4:30 p.m., with lunch usuallyfrom noon until I :30 p.m., one fifteen-minute break in the morning and one in the afternoon.



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10 Trial interruptions. Trial will not be interrupted for discussion of legal matters.The Court is available daily before and after trial and during regular recesses to consider suchmatters.

IT IS FURTHER ORDERED affirming prior release conditions/orders.1 56 p.m. Matter concludes.This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.

Attorneys are encouraged to review Supreme Court Administrative Order 2011 140 to determinetheir mandatory participation in eFiling through AZTurboCourt.



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HON. ROSA MROZ

STATE OF ARIZONAv



Michael K Jeanes, Clerk ofCourtFiled

01/22/2014


VINCE H IMBORDINO

MICHAEL D KIMERERLORI L VOEPELCAPITAL CASE MANAGER

UNDER ADVISEMENT RULING

Defendant s Motion to DismissThe Court has considered Defendant s Motion to Dismiss on Double Jeopardy Grounds,the State s Response, and Defendant s Reply.The Defendant s son was murdered on December 2, 1989. In 1990, a jury convicted theDefendant of that murder. The only direct evidence linking the Defendant to the murder is theDefendant s alleged confession to (now retired) Phoenix Police Detective Saldate. Saldate didnot record the alleged confession nor were there any other witnesses to this confession. TheDefendant maintained that she invoked her right to counsel and denied making a confession.Thus, the credibility of Saldate and the Defendant was an important issue at the trial.On March 14, 2013, the Ninth Circuit Court ofAppeals set aside the Defendant sconviction based on the prosecution s Brady/Giglio violation in failing to disclose impeachmentevidence related to Saldate. Brady v. Maryland 83 S.Ct. 1194 (1963); Giglio v. United States92 S.Ct. 763 (1972). The Ninth Circuit opinion detailed Detective Saldate s various instances ofmisconduct, ranging from lying to internal affairs investigators and lying under oath, toviolations of various defendants Fourth and Fifth Amendment rights, and ruled that theinformation regarding these instances ofmisconduct were Brady material that should have beendisclosed to the defense. See Milke v. Ryan 711 F.3d. 998 (9th Cir. 2013). The Ninth Circuitdirected that the materials be provided to the Defendant, and directed that a new trial be held. d.

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A reversal does not generally bar retrial. See State v. Moody, 208 Ariz. 424, 439, 94P.3d1119, 1134 (2004) en bane); North Carolina v. Pearce, 395 U.S. 711,719-720 (1969), reversedon other grounds by Alabama v. Smith, 490 U.S. 794 (1989); Ball v. United States, 63 U.S. 662,672 (1896).The Defendant argues that because her conviction was reversed as a result of the State'sknowing misconduct and not by her actions, her retrial is barred by the Double Jeopardy Clause

of the United States and Arizona Constitutions, relying on State v. Minnitt, 203 Ariz. 431, 55P.3d 774 (2002) and Pool v. Superior Court In For Pima Cnty., 139 Ariz. 98 677 P.2d 26(1984). In Minnitt, the Arizona Supreme Court determined that the prosecutor's calculateddeception in offering false testimony to bolster the credibility of a key witness, and then arguingthat evidence to the jury, implicated double jeopardy protections and barred retrial:

This case is an anomaly; egregious prosecutorial misconduct occurred in Minnitt's firsttwo trials, but the third trial, conducted by a new prosecutor and allegedly free ofmisconduct, resulted in a conviction. We note, however, that whether or not the third trialwas free from false testimony, falsehoods in the two previous trials permeated the processto the extent that fairness in the third trial could not correct the misdeeds of trials one andtwo.

In most instances, the remedy for prosecutorial misconduct is a new trial. See State v.Towery, 186 Ariz. 168, 185,920 P.2d 290 307 (1996); State v. Atwood, 7 Ariz. 576,611, 832 P.2d 593, 628 (1992). However, the record in the instant case is now repletewith evidence that the prosecutor, with full knowledge, introduced false testimony in twotrials and thus seriously damaged the structural integrity of both. The inevitableconclusion is that the prosecutor was aware that his actions would deprive Minnitt of afair trial. We announce today's ruling not to sanction the prosecutor, but to protect theintegrity of the justice system.d. at 440, 55 P.3d at 783.

Pool also requires that prosecutorial misconduct be egregiously improper leading to theconclusion that the prosecutor intentionally engaged in conduct which he knew to be improper,[and] that he did so with indifference, if not a specific intent, to prejudice the defendant. Pool,139 Ariz. at 109, 677 P.2d at 272. To determine whether a prosecutor 's actions were knowingand intentional, the court must consider objective factors, including the situation in which theprosecutor found himself, the evidence of actual knowledge and intent and any other factorswhich may give rise to an appropriate inference or conclusion. d. at 108, n.9, 677 P.2d at 271,n.9.Docket Code 926 Form ROOOA Page 2


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SUPERIOR COURT OF ARIZONAMARICOPA COUNTY01122/2014

The Court is mindful that the Ninth Circuit determined that the prosecutor had a ' duty tolearn of any favorable evidence known to the others acting on the government's behalf in thecase, including the police .. . [and then concluded that] what happened here is more akin toactive concealment. (Internal citation omitted). Milke, 7 F 3d at 1006. The Court has studiedthis case extensively. The Court does not have any evidence that the prosecutor's actionsconstituted active concealment. The Court notes that the prosecutor's decisions regardingdissemination of materials related to Sal date were guided by Judge Hendrix, both at trial andduring post-conviction proceedings. Judge Hendrix determined that discovery obligations didnot implicate the materials sought by the Defendant; the standard (discovery rather thandisclosure) and the decision (not to provide material to Defendant), were determined to be errorby the Ninth Circuit. The Court declines to impute bad faith to either the prosecutor or to thetrial court.

The Defendant also argued that prosecutors handling murder cases with the MaricopaCounty Attorney's Office knew of Sal date's misconduct in multiple cases .. . and intentionallyfailed to disclose the information. The Court is familiar with the manner in which the MaricopaCounty Attorney's Office (MCAO) functions 1: MCAO is a very large office with many deputycounty attorneys2 most ofwhom have very heavy caseloads. t is not a given that prosecutorsknow what is going on in each other's cases. The three cases cited by the Defendane were nothandled by the prosecutor in this case, Noel Levy. t was handled by Paul Rood. There is noevidence that Mr. Levy and Mr. Rood shared information about their cases. t is speculative thatLevy must have known what was going on in Rood's cases.

Based on the existing information, the Court cannot conclude that the prosecutorintentionally engaged in conduct which he knew to be improper, or that he did so withindifference, if not a specific intent, to prejudice the Defendant. The Court concludes that theBrady/Giglio violation was not sufficiently egregious to implicate the double jeopardy protectionafforded by either the Arizona or U.S. Constitutions. The Court further concludes that theremedy imposed by the Ninth Circuit, disclosure of the impeachment materials and a new trial, issufficient.T S OR ERE denying Defendant's Motion to Dismiss on Double JeopardyGrounds.

1 This judge was a former prosecutor with MCAO from 1995 to 1999. As a judge, the Court has presided overcountless number of criminal cases prosecuted by MCAO.2 MCAO is a large prosecuting agency with many prosecutors and trial bureaus. Even back in 1991, there were 150deputy Maricopa County Attorneys. State ex rei. Romley v Gottsfield Fulminante), 7 Ariz. 195, 196, 829 P.2d24 (App. 1992).3 The cases are State v Jones, CR90-05217, State v King, CR90-00050, and State v Mahler, I-CA-CR90-1890.Docket Code 926 Form ROOOA Page 3


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State s Motion for Clarification and Reconsideration o Judicial OrderThe Court has considered the State s Motion for Clarification and Reconsideration ofJudicial Order. The Court stated in its introduction paragraph of the ruling all of the things thatthe Court considered. Specifically, the Court believes that the Ninth Circuit opinion, theDefendant s Responses, and Saldate s Responses clearly sets forth why Detective Saldate has alegitimate reason to fear prosecution.IT IS ORDERED denying the State s Motion.This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determinetheir mandatory participation in eFiling through AZTurboCourt.

Docket Code 926 Form ROOO Page


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LORI VO P LFromSentToCcSubject

mbordino Vince Friday, January 31 2014 11:35 AMLORI VOEPEL; MDK Kimerer, Michael ([email protected])Nageotte Sandraspecial action

I had anticipated it would be filed today. it is in the process of being reviewed for edits by several people to insureaccuracy and narrowing the issues for focus. I have been asked to advise it will be filed no late r than wed. next week.I apologize for the delay

1


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LORI VO P LFromSentToCc:Subject

Imbordino Vince Tuesday February 04 2014 1:30 PMNageotte Sandra'MDK Kimerer, Michael' ([email protected]); LORI VOEPEL; Meloche Dianestatus of special action

Please advise the court that apparently I should have not been giving so optimistic a deadline for the filing of our specialaction. Diane Meloche who is in charge of our appellate section is working on it herself. Due to complexity the originalassigned deputy county attorney asked her for assistance. She is now working on it full time and will get it filed as soonas she can. Despite her other duties she is making this her priority and it will be done as quickly as it can be but notbefore it is done properly.I apologize for my having been too optimistic. Obviously this matter is of great importance. I hope the court understandswe are not delaying. That would serve no purpose to us or anyone.However, we received the Court's ME denying reconsideration less than 2 weeks ago and that the Rule of Special Actiondo not impose a time limit for filing. Regardless we are working as quickly as possible. As all of you know, in a SpecialAction we have to compile the record on appeal (the record that court of appeals has to work with is only what theparties provide) which preparation in itself will be a considerable undertaking.f defense counsel feels the necessity to file motions on this issue I cannot stop them and we will respond. However I

believe it is to everyone's benefit if the pleadings are as focused and concise and correct to avoid wasting the court ofappeals time as well as defense counsel given the effort needed to respond to the special action.

Milke - Exhibits to support Motion to Dismiss

Documents

Transcript of Milke - Exhibits to support Motion to Dismiss