Editor’s note: This story by Nancy West was sponsored by the Fund for Investigative Journalism and first published by VTDigger on July 19. West founded the New Hampshire Center for Public Interest Journalism, which launched its news website InDepthNH.org on Sept. 1.
Maybe Debra Jean Milke masterminded the murder of her tow-haired son Christopher in Phoenix just before Christmas 1989 to collect the 4-year-old’s $5,000 life insurance policy.
Or maybe – as Milke has insisted all along – she was just the innocent victim of a corrupt cop with a proven pattern of lying who was out to win a conviction.
Whichever is true, Milke, 51, is a free woman now after spending 23 years on death row, convicted of conspiring with two men to kill Christopher.
She was released from prison because prosecutors withheld evidence of misconduct by then-Phoenix Police Detective Armando Saldate Jr., who testified Milke confessed to him.
“That was pretty outrageous,” said Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit of the Milke case in general.
Kozinski wrote the panel’s 2013 decision overturning Milke’s conviction because of Saldate’s undisclosed history of dishonesty. The Arizona Court of Appeals threw out the murder charges last year and in March, the Arizona Supreme Court declined further review.
“If a cop lies and convicts an innocent person and they get executed, they’re just as dead as if a cop shot him,” Kozinski said during a recent telephone interview.
It’s another way in which police can violate someone’s civil rights, Kozinski said.
Milke’s case is one of a growing number of convictions overturned across the country – another just last month in Massachusetts — because prosecutors failed to disclose evidence of police misconduct that could have helped prove the defendant’s innocence.
A convicted murderer in New Hampshire is seeking a new trial on similar grounds.
Called Brady material because of the 1963 U.S. Supreme Court case Brady v. Maryland, prosecutors are constitutionally required to turn over all favorable, material evidence to the defense.
That includes evidence of police dishonesty such as lying in an official proceeding, falsifying evidence or stealing when an officer is going to testify, but can also include excessive use of force. The defense could then use the information to impeach an officer’s testimony.
The Ninth Circuit was so disturbed by Milke’s case that the panel referred its opinion to the U.S. Attorney for the District of Arizona and the Assistant U.S. 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.”
Kozinski learned through the media that nothing came of the referral.
“They do not consider lying cops to be quite the same priority as shooting cops,” Kozinski said during an interview. “Maybe because they don’t get riots and they don’t get the same kind of public reaction as when police shoot somebody, but in essence it’s the same thing.
“They are helping commit violence against the suspect by words, but words can have the same effect,” Kozinski said.
When a Brady violation is discovered later that would have likely changed the outcome or the penalty, it usually results in the verdict being overturned and in egregious cases like Milke’s, the charges being dismissed altogether.
Had they known about Saldate’s history of dishonesty, Milke’s lawyers could have impeached his testimony, Kozinski wrote.
There’s no physical evidence linking Milke to the murder of Christopher, Kozinski wrote.
“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,” Kozinski wrote in the opinion.
“On the last evening of his short life, Christopher Milke saw Santa Claus at the mall,” Kozinski wrote.
Christopher woke up the next morning pleading with his mother to visit Santa again. She sent Christopher to the mall with her roommate, James Styers, who picked up a 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,” Kozinski wrote.
The men then drove to the mall and reported Christopher missing.
“Could the people of Arizona feel confident in taking Milke’s life when the only thread of evidence on which her conviction hangs is the word of a policeman with a record of dishonesty and disrespect for the law?” Kozinski wrote.
“Bad cops and those who tolerate them put us all in an untenable position.”
Styers and Scott were also convicted of murdering Christopher. They both remain on death row and have never testified against Milke.
Milke has sued the city of Phoenix, Maricopa County Attorney Bill Montgomery, and several police officers and officials claiming her civil rights have been violated.
Buddy Rake, one of the lawyers representing Milke in the civil suit, said she would have no further comment, but she did hold a news conference in March.
“I had absolutely nothing to do with the brutal murder of my son Christopher,” Milke told reporters. “I did not give a confession to Mr. Saldate.”
Tearfully, Milke said how much she misses her son and how Christopher loved to spin out on his Big Wheel bike. She also explained how it feels having been wrongly accused and convicted of killing him.
“Try to imagine that as some of you sit in judgment of me,” Milke said. “My innocence did not matter in their pursuit of a conviction. …
“This could happen to any one of you,” Milke said.
Research for this article, sponsored by the Fund for Investigative Journalism, revealed a lack of consistency when it comes to finding out about police misconduct, the kind of evidence the defense could use to challenge an officer’s testimony.
States vary widely on what constitutes police Brady material, whether prosecutors or the public can review police personnel files and when such misconduct must be disclosed.
Jonathan Abel wrote about the disparities for the Stanford Law Review in “Brady’s Blindspot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team.”
“(The disparities) deprives some defendants of their constitutional due process rights simply by virtue of where they happen to be tried,” Abel wrote.
Defendants on trial in Minnesota and some other states are more likely to benefit from their rights under Brady because police discipline is a matter of public record.
The accused is less likely to learn about a testifying police officer’s propensity to lie in states where police personnel files are confidential, or where there are complex barriers to obtaining the information.
“These protections benefit dirty cops by allowing them to testify and, thereby, hold on to their jobs,” Abel wrote. They also harm defendants who are denied evidence to which they are constitutionally entitled.
“And they harm society by undermining due process and allowing dishonest officers to stay on the job,” Abel wrote.
Even well-intentioned prosecutors are hamstrung in some states by local regulations that keep them from reviewing the files themselves, forcing prosecutors to rely instead on police agencies to alert them to problem officers, Abel said.
The stakes are high all around.
“Suppression of this misconduct evidence can cost defendants their lives, but disclosure can also be costly,” Abel wrote. “It can cost officers their livelihoods.”
Tuftonboro, N.H., Police Chief Andrew Shagoury has seen the Brady issue from the perspective of a patrol officer and as chief.
“It definitely could ruin a career, but not always,” Shagoury said of the Brady designation, which in New Hampshire means an officer has been placed on a “Laurie list.”
There was enough concern by police in New Hampshire about the fairness of the Laurie system that they pushed for legislative reform, but what ended up passing was a study commission.
In small departments, there may be no work for an officer who will be problematic when testifying, he said.
“The issue has become one of, is there consistency in putting people on the list and if they are on the list, how do they get off,” Shagoury said.
“As a chief in leadership, you have to worry about being able to run the department. You want to treat people fairly, and have to be concerned about due process rights.”
Shagoury remembers a case in a different department in which an officer was placed on the Laurie list for pranking a fellow officer and lying about it at first.
“I don’t think people want dishonest officers to testify. But what if it truly was a mistake that was blown out of proportion?” Shagoury said.
The public expects police do their work with integrity, he said.
“Nobody wants that more than police officers,” Shagoury said.
No statewide system in Vermont
There’s no statewide protocol in Vermont to make sure all favorable, material evidence of a testifying police officer’s misconduct is disclosed to the defense, but Defender General Matthew F. Valerio said it doesn’t appear to be a big problem.
Vermont is a small state, so people will probably find out if an officer has a problem telling the truth, Valerio said, adding some cases could be missed.
“Some cases fall through the cracks,” Valerio said. “The question is, does it make a difference? I think in some cases it makes a difference, in some cases it doesn’t.”
Because of the 1963 U.S. Supreme Court case Brady v. Maryland,prosecutors are required to alert the defense to all favorable, material evidence that could help prove the defendant’s innocence.
That includes testifying police officers who have been disciplined for dishonesty, and sometimes for excessive use of force.
Prosecutors don’t always know there’s been an internal affairs investigation, Valerio said.
“Unless it comes to light, I think that’s probably one of the areas where you have a vacuum as far as turning over the material,” Valerio said.
Defense investigators sometimes come across such evidence about an officer, he said.
“It always comes down to the question of you don’t know what you don’t know,” Valerio said. “In the vast majority of cases, we get what we need.”
Assistant Vermont Attorney General John Treadwell, head of the homicide unit, said he is not aware of any disclosure problems.
“We rely on police agencies,” Treadwell said. “I have no reason to believe they are misleading us.”
Scott Waterman, public information officer for Vermont State Police, said in an email that the department keeps track of disciplinary matters through the Office of Internal Affairs.
“Both the Commissioner of Public Safety and the Director of the Vermont State Police take their responsibility to the criminal justice system seriously and when the department becomes aware of a personnel matter that could impact a prosecution, we obtain permission from the State Police Advisory Commission to share the information with prosecutors,” Waterman wrote.
Exoneration list grows
Samuel L. Gross, a law professor at the University of Michigan Law School and the editor of the National Registry of Exonerations, said it is impossible to know how often wrongful convictions result from prosecutors failing to disclose Brady police information.
It is just one type of the “official misconduct” category included in the registry’s research. To get more detail, the registry is recoding the first 1,367 exonerations, he said.
As of June 25, the number of exonerations was up to 1,624.
A recent study of the database listed official misconduct as a factor in 45 percent of the exonerations. Perjury and false testimony were factors in 56 percent; mistaken witness identification in 33 percent of cases; false or misleading forensic evidence in 23 percent; and false confessions in 13 percent.
“I suspect those cases will be undercounted in the sense that it probably happens more often than anybody notices because, how do you know?” Gross said.
Even if the new coding provides more details, it will only represent cases in which the alleged perpetrator was exonerated.
There is no way to know about cases in which no one noticed, or someone noticed later, but there was other ample evidence that the person was guilty so the conviction wasn’t overturned.
Post-conviction research is rare because it is expensive and time-consuming.
In Milke’s case, it took 10 volunteers who worked 7,000 hours over three-and-a-half months to pore through court records looking for Detective Saldate’s name, then more time to sort through them.
“Sometimes we find out later on,” Gross said. “More often, we don’t.”
Attorney Larry Hammond, a founder and president of the Arizona Justice Project, who introduced Milke at her news conference, said there is no state law in Arizona governing Brady police disclosure.
Phoenix maintains a Brady list of such officers, he said, but disclosures are still rare in Arizona.
“Most lawyers would tell you it’s a pretty uncommon thing for them to press for the (police) personnel files, in part because the chance of getting the file in the absence of some specific knowledge that the cop has a problem is remote and it’s time-consuming,” Hammond said. “I do think lawyers should be pressing for them.”
Prosecutors are feeling the pressure even though it is rare for a prosecutor to be disciplined for ethical lapses.
Kristine Hamann, a former prosecutor with the Manhattan district attorney’s office, is now a fellow with the Bureau of Justice Assistance at the U.S. Department of Justice. She works on sharing best prosecutorial practices across the country.
Hamann has already met with prosecutors in 30 states, 18 of which have formed best practices committees. Brady police disclosure is one area of interest, Hamann said.
“These committees are committed to improving prosecutions so that convictions are right in the first instance – thus avoiding wrongful convictions,” Hamann said.
Judy Johnston, training manager for the Hennepin County Attorney’s office, said police discipline is a matter of public record in Minnesota. Anybody can find out about it.
Just to make sure nothing is missed, her office recently scoured all police personnel records in the county’s largest police department, something that would be unheard of in many states.
Hennepin County will also follow the lead of Ramsey County in Minnesota and begin keeping a list of Brady cops as well to make sure defense attorneys don’t miss any potential Brady material.
Minnesota has a long history of open file discovery, she said.
“We want to make sure we’re not convicting innocent people,” Johnston said.
Judge Kozinski said some prosecutors don’t like disclosing Brady material because it weakens their own cases.
“Getting a lot of prosecutors to comply with Brady is like pulling teeth,” Kozinski said.
In the Ninth Circuit’s ruling, Kozinski made it clear that Milke may well be guilty. When asked his opinion, Kozinski said: “I don’t know. I don’t have a crystal ball.”
It wasn’t the panel’s job to re-examine guilt or innocence, he said.
“You have to be guilty and found guilty by a correct and fair process,” Kozinski said.
Kozinski advocates for open file discovery to make sure all defendants get a fair trial.
“Anybody could be a defendant if unlucky enough,” Kozinski said. The Brady doctrine “protects all of us and our loved ones.”
What if Milke is, in fact, innocent?
“Then you’ve got a real miscarriage of justice, a very serious miscarriage of justice, of course,” Kozinski said.
Overturned: 22 years in prison for killing a cop
In Massachusetts, Sean K. Ellis has become the latest convicted murderer to win a new trial because his constitutional right to all favorable material evidence involving police misconduct was violated.
Only this time, one of the officers, Boston Police Detective John Mulligan, was also the homicide victim — shot five times in the face as he slept in his car on a paid police detail outside a Walgreens in 1993 in Roslindale, Massachusetts.
Ellis was 19 at the time and told police he went to the store to buy diapers for a relative that night.
Ellis, now 40, has served 22 years of a life sentence for killing the veteran detective but was never told Mulligan was under investigation at the time for ripping off drug dealers.
On May 5, Suffolk County Superior Court Judge Carol S. Ball ordered a new trial for Ellis. Ball also cited newly discovered evidence that three other police detectives who were involved in Mulligan’s corruption scheme were also significantly involved in his homicide investigation.
“(T)his is a case where justice has not been done,” Ball wrote.
Attorney Rosemary Curran Scapicchio fought for 14 years in state court to pry open Boston Police Department personnel files related to Mulligan but had no luck until she filed a federal request for information.
The results were explosive. FBI informants described Mulligan as a rogue cop who beat up prostitutes and robbed and extorted people.
It happens more often than not that police discipline is withheld before trial or comes up in the middle of a trial or even years later, Scapicchio said.
“They get away with it because there are no repercussions, no discipline,” Scapicchio said.
Police fail to disclose the misconduct to prosecutors who then turn a blind eye, she said.
“Nobody rocks this boat,” Scapicchio said. “They get commendations when they withhold evidence so there is no downside.”
John Mulligan’s brother, Richard Mulligan, said his brother had a “clean slate” and was never charged or convicted of a crime. He believes Sean Ellis is guilty of shooting his brother to death and that he shouldn’t get another chance at freedom.
“Sean Ellis did it,” Mulligan said in a brief telephone interview. If the court system lets him off, then “justice is stupid.”
Ellis supporters helped raise the $50,000 bail Ellis posted while he waits for the state’s anticipated appeal of Ball’s ruling.
Renee Nadeau Algarin, deputy press secretary to Suffolk County District Attorney Daniel Conley, said in an email that no evidence was withheld in Ellis’ case.
Ellis’ conviction was based on direct, reliable, corroborated evidence, she wrote.
“And we intend to present that evidence to a new jury if necessary,” Algarin wrote.
If it goes to trial, it will be Ellis’ fourth for the same offense. Jurors in the first two trials couldn’t agree on a verdict.
The conviction of Ellis’ co-defendant in Mulligan’s murder, Terry Patterson, was overturned on unrelated grounds. Patterson pleaded guilty to manslaughter and was released from prison in 2006.
Elaine A. Murphy, who advocates for Ellis, said he is adjusting to life outside prison and is hoping to go to college.
“Life is a total thrill to him,” said Murphy who had dinner with Ellis since his release and plans to write a book about his case. “He sits back and shakes his head and smiles.”
New Hampshire mayhem
Convicted murderer Eduardo Lopez is seeking a new trial in New Hampshire claiming the state failed to disclose “impeachment evidence of prior bad acts by then-detective John Seusing.”
Lopez, who was 17 in 1991 when he was charged with murdering Robert Goyette during a robbery in Nashua, has filed a motion for a new trial in Merrimack Superior Court.
His original trial focused on whether Lopez was the shooter, and whether he was so drunk that he couldn’t form the requisite intent.
Seusing later became the police chief of Nashua, the state’s second-largest city, and has since retired. He testified then about Lopez’s booking video, which was disputed at trial, and has not recently been found.
The defense claimed it showed Lopez being dragged into the police headquarters nearly unconscious, while the state said it showed he was “cocky, cunning and soberly belligerent.”
Seusing’s past discipline came to light two years ago after Anthony Pivero, a former Nashua police officer, filed a complaint with Attorney General Joseph Foster.
Pivero claimed prosecutors had failed to disclose in an unrelated 1995 murder case that Seusing had been suspended for 15 days for lying to his superiors earlier in his career.
The attorney general’s investigation showed Seusing’s discipline had in fact been disclosed to the judge, who ruled it inadmissible at trial, but it was never disclosed again as required under Brady.
As a result, Foster notified Lopez and two other convicted murderers of the disclosure failure, which paved the way for Lopez to seek a new trial.
Had his lawyers known about Seusing’s discipline, “they could have responded to his testimony with a simple line of cross that Seusing had lied in the past when it benefitted the Nashua Police Department so he was doing the same in Lopez’ trial,” Public Defender Paul Borchardt wrote in the motion.
Brady issues involving police are called Laurie issues in New Hampshire because the state Supreme Court overturned Carl Laurie’s murder conviction in 1995 because prosecutors withheld a key investigator’s history of misconduct.
Two years ago, the attorney general formed a committee to update protocols for identifying, tracking and disclosing Laurie officers after press reports revealed flaws in how the secretive process works.
Deputy Attorney General Ann Rice said the committee was on hold awaiting guidance from the state Supreme Court on a couple of related cases. One of them was decided on June 25. The court ruled in favor of three Manchester police officers who wanted their names removed from the Laurie list.
The officers had been disciplined for using excessive force while off-duty, but an arbitrator overturned the discipline and a previous attorney general ruled they did not commit a crime.
Concord Attorney James Moir, who represented Carl Laurie at trial, said the New Hampshire Brady disclosure system is broken.
“There can be no guarantee this information will be disclosed,” Moir said. “We have to rely on the good faith of a great number of people.”
Prosecutors, police chiefs and finally judges all exercise some discretion as to what constitutes Laurie issues and when they should be disclosed, he said.
Officers with a Laurie designation do not want to speak publicly, said Eric Wilson, a defense attorney in Nashua, who has helped some officers avoid being placed on Laurie lists.
“It’s like a scarlet letter,” Wilson said.
The process can be unfair to police officers, Wilson said. Some police chiefs use the Laurie list to get rid of an officer they don’t like, or to silence union activists, he said.
There are different interpretations of Brady from state to state, within different jurisdictions in the same state and sometimes – as in Florida — between defense and prosecuting attorneys.
In Florida’s 15th Judicial Circuit, Alan S. Johnson, chief assistant state attorney, said although police discipline is a matter of public record available to anyone, internal affairs records are not admissible in court, with rare exceptions.
“If something is not admissible, it can never be Brady material because it is not admissible so it can’t affect the outcome,” said Johnson, who trains lawyers on Brady matters.
Police officer dishonesty as a general rule is not admissible unless there is some nexus to the case or there was a criminal conviction for dishonesty, Johnson said.
Clearwater Attorney Denis de Vlaming, who also trains lawyers about Brady issues, disagreed with Johnson.
The Florida Supreme Court grew so weary of Brady violations, de Vlaming said, that it is now requiring all lawyers by next year to take a 100-minute course on Brady issues to maintain their licenses.
“If it is not admissible, (prosecutors) take the position it’s not Brady. I take the position that even though I might not be able to use it, it may lead to impeachment or exonerating information so I think I am entitled to it,” de Vlaming said.
If they are at all concerned about whether something is or isn’t Brady, de Vlaming tells prosecutors to bring it to a judge for review just to be safe.
In California, the state Supreme Court is expected to rule soon on a domestic violence appeal deciding who is responsible to search police personnel files for possible Brady-type discipline.
Defense attorneys in San Francisco have obtained Brady disclosures from police personnel files for about three years after the district attorney negotiated a system in which a board reviews the police personnel files before disclosure. That system is on hold until the high court rules.
“For 30 years, we never got anything in a police officer’s file,” said Public Defender Christopher Gauger. “We weren’t allowed to have that. We didn’t know it existed, and the DA didn’t know it existed.”
There is a hodgepodge of protocols in different jurisdictions in California for providing Brady police disclosures, including some that have no procedures at all, he said.
“Hopefully there will be some systemic changes,” Gauger said.
Some prosecutors claim they don’t have time to review the personnel file of every police officer who will testify in a case.
But Attorney Jonathan Abel, who has researched and written about police Brady issues, has little patience for that reasoning.
During a recent interview, Abel said the rights of the defendant must be protected over police personnel privacy.
“If prosecutors are so concerned about the difficulty of searching for the material in police personnel files, they should push so the misconduct in the files is publicly accessible,” Abel said.
In an op-ed piece for The Daily Journal, a legal publication, Abel said prosecutors don’t want to anger police by disclosing misconduct, which causes a conflict of interest.
Abel suggested that the U.S. Justice Department could investigate cases to “launch a larger initiative aimed at identifying defendants convicted because police misconduct was not disclosed.”
“Such an initiative would shine much-needed light on police misconduct while simultaneously vindicating the civil rights of the wrongfully convicted and demonstrating that police misconduct must not be swept under the rug,” Abel wrote.