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3283157.1
Michael D. Kimerer, Bar #002492
KIMERER & DERRICK, P.C.
1313 East Osborn, Suite 100
Phoenix, Arizona 85014
Telephone: (602) 279-5900
Facsimile: (602) 264-5566
mdk@kimerer.com
Lori L. Voepel, Bar #015342
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-7312
Fax: (602) 200-7807
lvoepel@jshfirm.com
minuteentries@jshfirm.com
Attorneys for Defendant Debra Jean Milke
SUPERIOR COURT OF THE STATE OF ARIZONA
COUNTY OF MARICOPA
STATE OF ARIZONA,
Plaintiff,
v.
DEBRA JEAN MILKE,
Defendant.
NO. CR1989-012631
DEFENDANT DEBRA MILKES
MOTION TO SUPPRESS
ALLEGED CONFESSION
(Assigned to the Honorable Rosa
Mroz)
Defendant Debra Jean Milke respectfully moves this Court to suppress the
testimony of Detective Armando Saldate regarding her alleged confession. Saldates
claim that Debra confessed and waived her Miranda rights is incredible and extremely
unreliable in light of evidence discovered after Milkes first trial that Saldate has a lengthy
history and pattern of misconduct and gross abuses of power including lying under oath,
taking advantage of vulnerable suspects (especially women), and violating suspects
Miranda and other constitutional rights. As a result, the State cannot meet its heavy
burden of proving a Miranda waiver. Nor is this uncorroborated confession evidence
sufficiently reliable to present to a jury in a capital case.
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I. BACKGROUND INFORMATION.
Debra Milke is the oldest of two daughters of career military man Richard
Sam Sadeik and his German wife, Renate. Her sister Sandra is two years younger.
After Renate divorced Sam, Debra lived with Renate, attending community college and
starting work by age 18. (RT 10/1/90 at 11-12). Sandra went to live with Sam and his
new wife. When Debra turned 19, Renate was laid off and accepted a new job in
Germany, leaving Debra on her own. (Id. at 9).
Within two months, Debra met Mark Milke, and they moved in together.
(Id. at 15). Shortly after, Mark was arrested for possession of cocaine, and Debra left him.
(Id. at 23). Mark swore hed change, so the two reconciled and later married. Almost
immediately, Mark was again arrested for drug possession. (Id. at 30). Within two months
of marriage, Debra became pregnant with Christopher. (Id. at 31). During her pregnancy,
Mark wrecked their car and was arrested for DUI. (Id. at 33-34). Christopher was born on
October 2, 1985, and Debra was virtually a single parent due to Marks extensive drug
and alcohol abuse. (Id. at 34-38). Mark was convicted of DUI shortly after Christophers
birth and served six months in prison. (Id. at 34, 37, 48). Within three months of release,
he was arrested for domestic violence and parole violation. (Id. at 48). Debra filed for
divorce, but felt Christopher needed his father and encouraged regular visitation. (Id. at
66). After one of Marks prison stints, he lived with Sandra, during which Debra allowed
Christopher to stay with him so long as he was in rehabilitation. (Id. at 70). When Mark
again began abusing drugs, he took Christopher to a drug house and became verbally
abusive, causing Debra to obtain a restraining order. Debra later allowed visitation, but for
shorter periods with increased supervision. (Id. at 75-80).
Debra worked fulltime (sometimes two jobs) to support Christopher alone.
(Id. at 35). She relied on family and friends for babysitting. (Id. at 40, 44-45, 49, 55).
Christopher was a high energy child (RT 9/14/90 at 55), but his behavior improved after
treatment for a thyroid tumor in 1988. (RT 10/1/90 at 102-103).
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Debra and Sandra met Jim Styers at an apartment complex where they lived
during one of Debra and Marks separations. (Id. at 102-03). Styers seemed like a nice
guy and loving father to his daughter, Wendy (id. at 18, 63), and both sisters trusted and
allowed Styers to occasionally babysit their children. (RT 9/17/90 at 25; RT 10/1/90 at
64). After Debra moved from the apartment in 1986, she rarely had contact with Styers.
(RT 10/1/90 at 90-91). Debra sought Styers assistance in July 1989, however, when her
relationship with Mark again became hostile. (Id. at 113). Mark had confiscated Debras
only transportation, leaving her stranded on the street with Christopher. Debra called
Styers for a ride because he lived nearby, and he offered to let them stay at his apartment.
(RT 10/1/90 at 120-121). Debra and Christopher had been living with Marks mother, but
with increased tension between she and Mark, Debra decided to accept Styers invitation
until she could get back on her feet. (RT 10/2/90 at 2-5). Debra and Christopher shared a
room with Styers daughter. (Id. at 32). Although Debra knew Styers served in Vietnam,
she was unaware he suffered psychological problems from his Marine combat experience.
(RT 10/1/90 at 62-64). Despite claiming he shunned guns due to his military experiences,
Styers purchased several handguns while Debra and Christopher lived with him, including
a .22 caliber handgun at a November 1989 gun show. (RT 10/2/90 at 21-23). He also
began target shooting. (Id. at 19, 20, 24; RT 9/13/90 at 98). Debra met Roger Scott about
one month after she and Christopher moved into Styers apartment. Debra was
uncomfortable around Scott and found him kind of strange. (RT 10/3/90 at 36). Not
long after meeting, Scott asked Debra for several hundred dollars to appeal a denial of his
disability benefits, which she refused.
In September 1989, Debra was hired by John Alden Insurance Company.
(RT 10/2/90 at 68). She elected medical, dental, long term disability and life insurance
benefits for herself and Christopher, just as she had done through prior employers. (ER
1201, 1204, 1737-39).
1
Debra left her benefits application and policy in Styers room,

1
ER refers to the Excerpts of Record filed with the Ninth Circuit appeal. These
are not being attached as exhibits, except where they relate to the issues in this motion.
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where she kept all her paperwork, boxes and clothing, due to space limitations. (ER 1731-
35). She also discussed her benefits with Styers when he asked about them one day. (Id.).
Scott also had access to the benefits paperwork, as he was frequently at Styers apartment
when Debra was working. (ER 1743-46). Debra told Styers in late November 1989 that
she had located a new apartment, and they would be moving in January.
2
(ER 1034).
On December 2, 1989, Styers asked if he could use Debras car to go to
Metrocenter.
3
(RT 10/2/90 at 80). Christopher begged to go so he could see Santa Claus,
which Debra allowed when Styers said he did not mind. (Id. at 80-81). Debra stayed
home to clean and do laundry. (Id. at 89). Around 2:45 p.m., Styers called Debra and said
Christopher was missing. (RT 10/3/90 at 37). He said he was with a security guard and
they would notify police. (RT 10/3/90 at 37-38). Debra was hysterical and called her
father several times over the next few hours. (RT 9/24/90 at 103-104, 106-107).
That evening, Debras stepmother and stepsister arrived. Debras father
stayed in Florence where he was a prison guard, as he feared Christophers disappearance
was a prison-related kidnapping. (RT 9/13/90 at 108). During the night, police repeatedly
interviewed Debra. With friends at the apartment and others searching the mall, Debra
kept a 21-hour vigil by the phone. (RT 9/24/90 at 93-95, 102, 117, 142). Recognizing
Debras distress, friends and family gave Debra alcohol and medication to try and calm
her. (RT 9/24/90 at 126; RT 10/2/90 at 107, 109-110).
Meanwhile, police interviews with Styers led them to Roger Scott, whom
they located at home around 12:30 a.m. on December 3. (Id. at 26-28; ER 1627). Scott
first told police the kidnapping story, and they left. (Id. at 53). When discrepancies
arose between Styers and Scotts stories, police returned to Scotts home at 2:00 a.m. (Id.
at 50-60). They re-interviewed him, then took him for a lengthy drive before bringing
him to the police station for interrogation. (ER 1055-56). Detective Armando Saldate

2
The rental application shows Christopher would be living with Debra at the
apartment beginning January 13, 1990. (ER 1212-15).
3
Styers regularly used her car, as his needed repair. (RT 10/4/90 at 28).
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finally interrogated Scott. (ER 1655-59). Saldate claimed Scott had not been given the
opportunity to be truthful. (RT 9/10/90 at 12). He did not record the interrogation. After
eight minutes of questioning and nearly eleven hours after Scott was taken into custody,
Saldate Mirandized Scott and threatened to interrogate Scotts mother, whom he knew
was elderly and in poor health. (RT 9/10/90 at 26-28). Scott, who lived with and was his
mothers sole caretaker, begged Saldate not to disturb her. (Id.). Saldate told Scott to at
least lead them to Christophers body, after which Scott said, Jim [Styers] killed him,
and he knew where the body was located. (Id. at 10-12).
Around this timeframe, Debras stepmother urged her to go see her father in
Florence, which she did. (RT 10/2/90 at 115, 120-123). When she arrived, Sam fed and
gave her a beer and put her to bed, as she hadnt slept or eaten and was exhausted. (RT
9/13/90 at 110-113).
While driving to the desert location where Christopher was killed, Saldate
continued questioning, during which Scott allegedly made statements vaguely implicating
Debra in Christophers death,
4
which were not admitted at Debras initial trial. (RT
1/21/90 at 7-12; RT 9/10/90 at 30-31). After locating Christophers body and returning to
the police station, Saldate flew by helicopter to Florence to interview Debra.
II. PRIOR EVIDENCE RELATING TO DEBRAS INTERROGATION.
Before Saldate left for Florence, his supervisor told him to tape record his
interview of Debra. (RT 9/10/90 at 29, 41-43). Saldate ignored this directive and took no
tape recorder with him. (Id.). At Saldates request, local officers escorted Debra from her
fathers house to the Florence Sherriffs station, where she waited two to three hours with
a family friend. (Id. at 42; RT 10/2/90 at 11, 124).
By the time he arrived, Saldate had already concluded that Debra conspired
with Scott and Styers to have Christopher killed. He admittedly based this determination
solely upon a few words by Scott, even though there was no physical evidence connecting

4
Saldate testified that Scott merely claimed in an offhand remark that Debra was
also involved, but provided no details. (D.Ct. RT 1/11/10 at 63-64).
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Debra to the crime. (RT 9/10/90 at 13-15, 40-43). For the next half hour, Saldate sat
alone with Debra without the benefit of a witness,
5
audiotape or videotape to memorialize
her interrogation. (RT 9/10/90 at 44, 55). When he emerged, Saldate claimed Debra had
confessed to participating in the murder. (RT 9/10/90 at 55; RT 9/12/90 at 80-81).
Afterward, Saldate rode with Debra (unhandcuffed) to Phoenix where she was booked.
(RT 9/13/90 at 14).
Saldate never asked Debra to write or sign a statement acknowledging her
participation, even though he had no corroborating witness and no taped record of the
interrogation. Several days later, Saldate prepared a paraphrased report and destroyed his
contemporaneous notes, leaving only his official version. (ER 2064; RT 9/13/90 at 34-
35). Nothing corroborates Saldates account of Debras purported confession.
Debra has consistently denied confessing to Saldate. (RT 10/3/90 at 22-23,
RT 1/18/91 at 15-27). This is supported by two witnesses who spoke independently with
Debra shortly after her arrest.
6
To the extent Saldates police report describes actual
disjointed statements by Debra, she contends these were borne of shock, disbelief,
confusion, and terror at the news that her son was murdered and she was being blamed.
(RT 10/3/90 at 13-14, 18, 42-46). She says Saldate also twisted numerous statements, and
took several completely out of context, giving them a different meaning than intended.
(Id. at 11-59). The most inculpatory statements were invented out of whole cloth. (Id).

5
Witnesses were readily available, as two Phoenix Police detectives were just
outside the door.
6
An investigative reporter, Paul Huebl, interviewed Debra in Madison jail within
hours of her arrest. (RT 1/12/10 at 3-46). Huebl said when he told Debra police said she
had confessed, she was shocked, confused and adamantly denied it. (Id.). He also recalled
Debra saying she had asked for a lawyer but hadnt seen one yet. (Id. at 11). Just three
months after Debras arrest, a jail psychiatrist, Dr. Kassel, and Debra were discussing her
interrogation. Debra told Dr. Kassel she did not confess to Saldate and that he ignored her
request for an attorney. Dr. Kassel asked if he could record their conversation so it would
be preserved, after which she repeated her account on tape. (See 3/6/90 Dr. Kassel
Transcript, attached as Exhibit A; see also D.Ct. RT 1/11/10 at 158-60). Dr. Kassel
testified at the initial suppression hearing but was not called at the district court hearing
because the court admitted the transcript and tape recording of his interview as exhibits.
(Hearing Exs. 2, 3). These items of evidence will be introduced at the upcoming
suppression hearing, and Mr. Huebl will be called as a witness.
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Debra testified that Saldate entered the room, asked her friend to leave, shut
the door, sat in a chair at the desk, took out a pen and started writing on a notebook. (RT
10/3/90 at 12-13). She asked if he had heard anything, which he ignored. (RT 10/3/90 at
13). After a few moments he said, We found your son, he was murdered and you are
under arrest. (Id.). She screamed, started crying and yelled, what, what? (Id.). He
said he was not going to tolerate her crying and she moaned, Why are you doing
this?, but he just told [her] to be quiet. (Id. at 13). He then pulled out a card and read
her Miranda rights. (Id.). She heard him speaking words, but didnt fully comprehend
them. (D.Ct. RT 1/11/10 at 176-78). She recalled him saying she had the right to remain
silent and mentioning attorney. (RT 10/3/90 at 17). When he asked if she understood,
she said no, as she had never been in trouble or under arrest. (Id.). Debra was also in
shock because of the horror that my son was dead, disbelief of being accused of his
murder, and confused about why Saldate was reading her rights. (Id. at 17). Saldate
ignored her, did not offer to re-read the rights or have her read them herself, and instead
asked, Do you want this interview recorded? (Id; RT 10/4/90 at 77-80). Debra said,
No, I need a lawyer, which Saldate ignored. (Id.).
7

After ignoring Debras invocation, Saldate moved his chair in front of hers
so their knees were touching. (RT 10/3/90 at 17-18). He asked Debras age and said I
have a daughter about your age, so I understand how you feel. (Id. at 18). He leaned
forward, put his hands on her knees and said she could trust him, that he was her friend
and was there to find out what happened. (Id.). Saldate was in her face, about 6 to 12
inches away. (Id.). Debra just sat there crying. He said Im not going to tolerate this
activity, Im here to question you about the murder of your son, this is your
opportunity to tell me the truth, and I won't tolerate any lies. (Id. at 18). Debra said,
What do you want from me? and he said, The truth. I'm here to get the truth, a
phrase he kept repeating no matter what she said. (Id. at 19). Debra told him she didn't

7
Debra later testified she was not saying she didnt want it recorded, but that she
wanted an attorney and for the interrogation to stop. (D.Ct. RT 1/11/10 at 142-45, 153).
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know what happened, and didn't know anything about Chris' murder because she wasn't
involved in it. (D.Ct. RT 1/11/10 at 149). Not knowing what Saldate wanted, Debra then
started explaining she wasnt the type of person who would do something like this, but he
wouldn't believe her. Debra didnt know she could stop talking to Saldate because: (1) he
ignored her request for an attorney, (2) he kept badgering and accusing her of not being
truthful, (3) he was a physically imposing man who was right in her face, and (4) she was
confused and in shock and felt she had to defend herself. (Id.). (Id. at 153-154).
Debra said Saldate never: (1) showed or gave her the Miranda card to read,
(2) asked her to initial the card or sign anything acknowledging she understood her rights,
(3) asked her to sign anything saying she wanted to waive her rights and talk to him, (4)
asked if she wanted to waive her rights or talk to him, (5) offered to bring another officer
to witness the interrogation, (6) brought a tape recorder or offered to get one, (7) offered
to have her write out a statement after the interrogation, or (8) offered to re-interview her
on tape. (Id. at 160-62). Although the room had a phone, Saldate never gave Debra any
opportunity to speak with a lawyer or make a call. (RT 10/3/90 at 39, 56).
Because of Saldates failure to record, document or have the interrogation
witnessed, no one can prove with certainty what occurred. Saldate was an experienced
officer who controlled the conditions of interrogation. Instead of responsibly doing
something to corroborate what occurred in the interrogation room, he purposefully set up
a he-said/she-said swearing contest he knew he would win.
III. RELEVANT FINDINGS BY THE NINTH CIRCUIT.
On September 28, 2009, the Ninth Circuit issued an Order stating:
A complete review of the record discloses no evidence supporting a
finding that petitioner voluntarily, knowingly and intelligently waived
her rights under Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). See 28
U.S.C.A. 2254(d), (e).
(CR 163).
8
It also remanded to the district court for an evidentiary hearing on the issue of
whether Debra waived her Miranda rights. (Id.). Following an evidentiary hearing in

8
CR refers to the district court record.
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January 2010, both parties acknowledged that Saldates and Debras testimony was
consistent with their testimony in state court. (CR 190, 191). The district court also
found their hearing testimony mirrors that provided in state court. (CR 195). The only
new evidence presented by the State were photocopies of two Miranda rights cards
(Hg. Ex. 51). Its only witness was Detective Saldate, who provided no new testimony
on waiver and acknowledged he had nothing to add to what was presented in state
court. (D.Ct. RT 1/11/10 at 35). In contrast, Debra presented extensive (though not all of
the now-available) impeachment evidence against Saldate, witness testimony
corroborating her account of what happened, and testimony and evidence from one of the
top interrogations experts in the country, Professor Richard Leo.
9
Notwithstanding these
realities and the Ninth Circuits Order that no evidence on the state court record
supported a waiver finding, the district court somehow rationalized that the State met its
burden of proving Debra waived her Miranda rights. (Id.).
Following supplemental briefing and oral argument at the Ninth Circuit
regarding the district courts findings, the Ninth Circuit issued its March 14, 2013 Opinion
vacating Debras capital conviction. It did not adopt or in any way validate the district
courts findings regarding Miranda. In fact, Chief Judge Kozinski expressly rejected the
district courts waiver finding as employing unpersuasive, backward reasoning.
Milke v. Ryan, 711 F.3d 998, 1025 (9
th
Cir. 2013) (Attached as Exhibit B). In ignoring the
district courts findings, the Ninth Circuit granted habeas relief on the ground that the
States constitutionally egregious failure to turn over Brady/Giglio evidence of Saldates
history of misconduct irreparably tainted the first suppression hearing and trial in 1990,
resulting in a Miranda waiver finding and capital conviction that could not be sustained
under the U.S. Constitution. Thus, the Ninth Circuit left it up to this Court to hold another
suppression hearing and determine whether Debra waived her Miranda rights and whether
Saldates version of events is even reliable enough for admission at a re-trial.

9
Professor Leos opinions are discussed more fully below. He will be called as a
witness in the upcoming suppression hearing.
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IV. RELEVANT CONSIDERATIONS FOR THE SUPPRESSION HEARING.
A. Detective Saldates Credibility.
In this he-said/she-said scenario that Saldate purposefully created,
Saldates credibility is and has always been crucial to determining: (1) whether Debra
actually did confess to him; and (2) whether Debra asserted her right to counsel at the
outset of the interrogation and/or waived her Miranda rights. No evidence of misconduct
in other cases or from Saldates PPD personnel files was admitted at the first trial to
impeach Saldates character for truthfulness and integrity. As noted by the Ninth Circuit
Opinion in Debras case, however, substantial impeachment evidence has come to light
that seriously calls into question Saldates credibility, and even more has surfaced since
the federal habeas proceedings.
1. Judicial Findings of Detective Saldates Misconduct and
Dishonesty.
As detailed in the Ninth Circuits Opinion and Appendix, numerous courts
have determined that Detective Saldate has lied under oath to grand juries, coerced
confessions, tainted lineups, and violated Miranda rights in order to obtain convictions.
Suppression was ordered in five of those cases (Conde, Yanes, Jones, Mahler & King);
three others resulted in remands because Saldate lied or omitted material evidence in
testimony before the grand jury (Rangel, Rodriguez & Reynolds); and two more involved
tainted line-ups (Ross & Webster). Saldates tactics were severely criticized by the
Arizona Court of Appeals in two of the cases (Jones & Mahler). (See Opinion Appendix,
Milke, 711 F.3d at1019-22 (Exhibit B). As this Court has already found, the Ninth Circuit
Opinion is law of the case, making all of this impeachment evidence admissible and
highly relevant in the upcoming suppression hearing.
Moreover, this Court should consider additional evidence that Saldate
routinely ignored assertions of Miranda rights and trampled over other constitutional
rights. These include the case of State v. Sean Running Eagle, CR 87-11508, in which
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Saldate ignored Running Eagles Miranda assertions.
10
Eight other cases were also
discovered after Debras first trial in which pleas were entered or guilty verdicts were
obtained notwithstanding the misconduct.
11
Relevant excerpts from all of these cases, as
well as from Running Eagle, will be submitted as exhibits at the suppression hearing.

10
Sean Running Eagle asserted his right to remain silent, which Saldate ignored.
While continuing questioning, Saldate held his face 6 to 12 inches from Running Eagles
and repeatedly poked him in the chest while Running Eagle cried. Saldate admitted that
even though he had access to recording equipment, he chose not to tape record Running
Eagles interrogation saying, I dont believe its very good, a taped confession or an
interview with someone, especially since it involves such a serious crime. Because I think
it hinders that person from coming out, discussing what he really wants to say. I think
that maybe that tape kind of keeps them from wanting to talk to us. Saldate claimed
Running Eagle then confessed. He was convicted and sentenced to death. Also, during
interrogation of a highly intoxicated witness in Running Eagle, Saldate refused to accept
the witness rendition of events. When the witness said he was too drunk to remember,
Saldate continually said, This is too important of a case. We cant have an answer like
that in a case like this. This is too serious. You got to do better than that. He admitted
this continued for several days, with Saldate saying, I dont believe that, you got to do
better, and the witness would keep doing better. The intoxicated witness did recall
Saldate mentioning the gas chamber, which is highly improper in an interrogation context.
See State v. Emery, 131 Ariz. 493, 502-03, 642 P.2d 838, 847-48 (1982).
11
These include the following cases:
1. State v. Salas, CR 89-03252, in which Saldate interrogated a suspect he
acknowledged had been drinking heavily, but who Saldate decided was not too drunk to
be interrogated. Salas entered a plea prior to the suppression hearing.
2. State v. Kelley & State v. Moynihan, CR 87-00882 (consolidated), in which
Saldate interrogated Moynihan, who was intoxicated, and interrogated Kelley, who was
messed up, coming off of crystal. Both confessed and entered pleas before the
suppression hearings.
3. State v. Blackerby, CR 88-07047, in which Blackerby, a minor with a known
history of mental impairment and psychological problems, was held for two hours before
Saldate began interrogating. Saldate and another detective then alternated questioning for
two hours until 2:00 a.m. Finally, Saldate ordered Blackerby to cleanse his soul, after
which Blackerby admitted to armed robbery and began to nod his head yes to
everything Saldate asked him. Blackerby was convicted and sentenced to 50 years.
4. State v. Gallegos, CR 90-03339, in which Saldate ignored Gallegos repeated
requests for counsel during interrogation. Only when Gallegos admitted involvement did
Saldate issue Miranda warnings long after custodial interrogation began and after
Gallegos requested counsel. Saldate then used Gallegos confession in attempting to
extract a confession from a co-defendant. Gallegos was convicted and sentenced to death.
5. State v. Stark, CR 130819, in which Saldate interrogated Stark while in custody
without reading his Miranda rights. Stark said Saldate and his partner lied, threatened,
and refused to offer him protection even though he was already a States witness. Saldate
also took Starks girlfriend into custody and threatened to arrest her unless Stark
confessed, which he ultimately did. This violated Starks Fourth and Fifth Amendment
rights. Collazo v. Estelle, 940 F.2d 411, 416-19 (9th Cir. 1991), cert. denied, 502 U.S.
1031 (1992).
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2. Misconduct Documented in Saldates PPD Personnel File.
As the Ninth Circuit Opinion also discussed, Saldate was suspended in 1973
from the Phoenix Police Department (PPD) while he was a patrol officer for trying to
extract sex from a female motorist in exchange for not calling in an active warrant for her
arrest (a sexual quid pro quo). He then lied about it during an internal investigation
until after he failed a polygraph test, at which point he confessed. In a written reprimand
by the Chief of Police, Saldate was told that because of this incident, your image of
honesty, competency, and overall reliability must be questioned. (See Separation Notice,
attached as Exhibit C). Trial counsel Ray also had no knowledge of this incident because
he was blocked from obtaining Saldates personnel file during trial. Ray had subpoenaed
Saldates personnel file but the PPD filed a motion to quash, which Judge Hendrix
erroneously granted except as to PPDs policies and practices on interrogations.
3. Destruction of Saldates Personnel Records Ordered Disclosed by
the Ninth Circuit.
In accordance with the Ninth Circuits Opinion, the State and PPD were
ordered to disclose and file with the Court any additional remaining records from
Saldates PPD files during the course of his career. PPD officials then certified that all
portions of Saldates police record were turned over that have not been lost or destroyed.
(See Certifications, attached as Exhibit D). They claim that Saldates records were all
destroyed within five years of his retirement in 1990, even though the PPD clearly turned
over records in 2001 regarding the 1973 incident. (Id.). These PPD officials have no

6. State v. Biggica, CR 90-00715, in which Biggica initially denied participation in
a murder, but Saldate said it was necessary for Biccia to talk to him about the crime, in
violation of Miranda. Because Saldate said he had no choice, Biggica confessed. He
entered a no contest plea before the suppression hearing.
7. State v. Webster, CR 143926, in which witnesses told Saldate they could only
possibly identify the perpetrator. Saldate showed them a photo line-up in which
Websters photo looked little like the others. The witnesses said Webster looked like the
perpetrator, but Saldate claimed they positively identified Webster.
8. State v. Fraser, CR 89-08277, a murder case in which Saldate failed to record
his interviews with the central parties, and Fraser claimed Saldate fabricated several
witnesses statements.
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explanation for why disciplinary records were available in 2001, as they believed all
records would have been destroyed by 1995. (Id.).
12

4. Saldates Ongoing Misconduct as Constable--Belinda Reynolds.
Saldates misconduct did not end when he retired as a detective in 1990 to
became a Constable. The defense will present evidence that in 2009, Saldate extorted a
woman, Belinda Reynolds, for sex in exchange for letting her avoid eviction (ie: another
sexual quid pro quo like that involving the female motorist in 1973). Reynolds reported
this incident to Saldates supervisor, David Allister, at the Encanto Justice of the Peace in
2010. (See 6/22/10 Handwritten Complaint by Belinda Reynolds, attached as Exhibit E).
He, in turn, advised her to contact PPD to start an investigation, which she did on June 28,
2010. (See 8/3/10 Attorney General Special Investigations Section Report with copy of
DR No. 2010-00916444, Exhibit E). The police report states that on or around April 30,
2009, Saldate committed bribery and theft by extortion when he suggested that [] Belinda
Reynolds have sexual intercourse with him to keep him from locking her out of her
apartment after she was evicted (Exhibit E, DR at 2).
13
Presumably because Saldate
used to work for PPD, the case was referred to the Attorney Generals Office, who
conducted an investigation into Reynolds claims in July and August 2010. (Exhibit E).
It is not clear how far this investigation was taken, as the report indicates no disposition.
It appears to have been dropped when Saldate resigned as Constable just two months after

12
The defense has consistently sought disclosure of Saldates personnel files from
the time of trial, through state post conviction proceedings, and through habeas
proceedings. In light of the critical nature of this potential impeachment evidence, the
destruction of Saldates records was done in bad faith or was grossly negligent, as
litigation holds are routinely placed on PPD personnel files (see Exhibit D), which
should have been done here. As a result, the defense is entitled to a Willits instruction,
and the inference in Debras favor under Willits should be taken into account by this Court
in deciding this Motion to Suppress. State v. Willits, 96 Ariz. 184, 191, 393 P.2d 274, 279
(1964) (regardless of whether it was done intentionally or negligently, the State cannot
be permitted the advantage of its own conduct in destroying evidence which might have
substantiated the defendant's claim regarding the missing evidence.).
13
The police report refers to Saldate as Armando Salamtos, indicating Reynolds
knew nothing about Saldates history before making this report, as she did not even know
his exact name. As noted in the AGs Report, David Allister confirmed that Saldate was
the person Reynolds was referencing. (Exhibit E, Doc# 914892 at 2).
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Ms. Reynolds came forward. Undersigned counsel also understands that when confronted
with these claims, Saldate asserted the Fifth Amendment.
14

Notably, the AGs investigation into Reynolds allegations occurred around
the same timeframe as the district court hearing and subsequent Ninth Circuit briefing on
the Miranda waiver issue, in which Saldates credibility was central. No one from the
AGs office ever reported this incident to the Ninth Circuit and/or to the district court
judge even though it was investigated prior to the Ninth Circuits consideration of the
hearing record and arguments regarding the evidence in November 2010.
15
Had the
district court and Ninth Circuit been apprised of this recent investigation of Saldate, it
almost certainly would have impacted the outcome in Debras favor. In light of their
striking similarity, the district court likely would have ended up considering both the
Reynolds investigation and the 1973 incident involving the female motorist, which likely
would have tipped the scales in Debras favor on the Miranda issue way back in 2010.
16

And there is little doubt that had the Ninth Circuit been made aware that Saldate
continued engaging in similar acts of gross misconduct in the course of his official duties
as a Constable, it would have immediately invalidated Debras conviction under both
Brady and Miranda, effectively precluding any re-trial.

14
In light of the felonious nature of Reynolds claims, the Court should ensure that
Saldate has counsel before he is asked about these incidents under oath at the upcoming
suppression hearing. Saldate was represented by attorney Greg Thurston during and after
the Reynolds investigation, but around the same time the County Attorney announced he
would re-try Debra, Thurston re-joined the County Attorneys Offices criminal division.
To counsels knowledge, Saldate has not retained new counsel since that time.
15
The district court hearing was in January 2010. Supplemental briefing to the
Ninth Circuit on the district courts findings was conducted from March through May
2010, and oral argument was held before the Ninth Circuit in November 2010. Reynolds
reported in June 2010, and the AGs investigation was in July and August 2010.
16
Both of these incidents are also similar to a claim Saldate made to Debras sister,
Sandra, that Debra flashed him her breasts during the interrogation and offered him a
quid pro quo of sex in exchange for her freedom while they were en route to Phoenix
after her arrest. (Transcript Excerpts of Sandra Pickinpaugh Interview at 30-31, attached
as Exhibit F; Anders Rosenquist Affidavit at 10, attached as Exhibit G). This sickening
claim again reflects the misogynistic attitude Saldate has toward female civilians
described by the Ninth Circuit. Milke, 711 F.3d at 1012 (Exhibit B). Notably, this false
claim is not reflected in any of Saldates police reports or testimony.
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B. Debra Milkes Credibility.
Debras statements regarding what happened in the interrogation with
Saldate have been consistent from the beginning and will remain so in the upcoming
suppression hearing. Her testimony, together with the corroborating evidence from Dr.
Kassels and Paul Huebls interviews of her, are credible and support suppression here.
C. Professor Richard Leos Expert Testimony.
As noted above, Professor Richard Leo provided expert testimony at the
district court hearing regarding the interrogation practices and procedures employed by
Detective Saldate in Debras case (and others), and his two reports (and CV) were
admitted. (D. Ct. RT 1/12/10 at 48-135; Hg. Exs 4, 5, 6). Debra will again call Professor
Leo as a witness in the upcoming suppression hearing. During his 20 year career, Leos
research has focused on interrogation practices, Miranda requirements/practices and false
confessions. (Id. at 48-53; Hg. Ex. 4). One of the foremost interrogation experts, Leo has
numerous publications (including a leading textbook) and has testified in over 185
voluntariness hearings, trials and post-conviction proceedings. (Id. at 51-52, 85-86).
Leo did an extensive evaluation of the materials in this case. He prepared an
initial report focused on Saldates interrogation practices and the unreliability of Saldates
account. Leo then reviewed additional materials and prepared a supplemental report on
the Miranda waiver issue. In Leos opinion, Saldates practices: (1) in handling Miranda
waivers and invocations, and (2) in failing to memorialize or corroborate waivers or
interrogations in any way, were not consistent with good interrogation practice throughout
the country at that time, and were in fact strikingly bad. (D.Ct. RT 1/12/10 at 70; Hg.
Ex. 6). Leo explained how easy it is to obtain and document a waiver and said police are
trained to do so because they know the State has the burden of proving waiver, and they
need more than an officers subjective account. (Id. at 70-79).
Leo, who has observed/reviewed hundreds of interrogations, opined that
what occurred in Debras case, especially the failure to create any type of objective,
independent record of the waiver (or interrogation), was extraordinary, especially in a
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capital case. (Id. at 58-65, 70-72, 133-134). He also testified that in cases he has
examined involving waiver issues, there was at least some objective memorialization of
the interrogation (through recording) and/or of the waiver (through signing a rights card or
some other documentation showing they understood their rights and wanted to move
forward with interrogation), or the facts of what occurred during the interrogation were
undisputed and/or corroborated by the presence of other officers. (Id.; Hg. Ex. 6). But he
has never seen a case in which a valid waiver was based solely on a swearing contest
between a single officer and the accused, where critical facts of what occurred during the
interrogation were in dispute, including whether the suspect asserted her right to counsel.
(Id.). Leo also testified that Saldates practice of continuing to have a conversation with
suspects after they invoked their right to counsel was (and is) not at all in accordance with
general police practices, as it is understood that the bright line rule of Edwards v.
Arizona, 45 U.S. 477 (1981), requires police to scrupulously honor invocations by
immediately ceasing interrogation. (Id. at 73-75). He also noted that Saldates practice
defied then-existing PPD policies. (Id. at 75; Ex. 19). According to Leo, Saldates
subjective account of what occurred is not reliable enough to support a finding of waiver
relative to hundreds of other interrogations he has reviewed. In reaching this opinion, Leo
pointed to: (1) Sadates admitted practice of ignoring Miranda invocations, (2) Saldates
demonstrated confirmation bias (believing Debra was guilty at the outset and
misconstruing her statements and body language in inculpatory ways), (3) Saldates
wildly implausible assertions regarding what occurred during the interrogation, and (4)
Saldates documented tendency to misstate what occurs in interviews when he prepares
his reports (ie: his interview with Debras sister, Sandra). (D.Ct. RT 1/12/10 testimony;
Hg. Ex. 5, 6). Leos opinion is not merely that Saldate isnt telling the truth, but that
Saldates account of what occurred is not reliable in light of Leos expertise, research and
experience in the field of police interrogation practices. (Id. at 90-91, 108-111, 125-26).
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V. DEBRAS PURPORTED CONFESSION SHOULD BE SUPPRESSED
BOTH BECAUSE SHE DID NOT WAIVE HER MIRANDA RIGHTS AND
BECAUSE SALDATES ACCOUNT OF WHAT OCCURRED IS NOT
SUFFICIENTLY RELIABLE.
The United State Supreme Courts central concern in Miranda was that
incommunicado interrogation of individuals in a police-dominated atmosphere creates
difficulty in depicting what transpires at such interrogations and can result in an accused
giving self-incriminating statements without full warnings of constitutional rights.
Miranda v. Arizona, 384 U.S. 436, 445 (1966). Incommunicado interrogation -- created
by and within complete control of police -- results in secrecy and a gap in our
knowledge as to what in fact goes on in the interrogation room. Id. at 448. Once the
suspect is incommunicado, police employ interrogation methods recommended by police
training manuals and specifically designed to give police every advantage and put the
subject in a psychological state where his story is but an elaboration of what the police
purport to know already that he is guilty. Id. at 449. Explanations to the contrary are
dismissed and discouraged. Id.
This is precisely what happened to Debra. Saldate controlled every aspect
of her interrogation, including whether any objective record was made. He ignored his
supervisors directive to record the interrogation, he excluded fellow detectives stationed
at the door who could have witnessed the interrogation, and he chose to not document
Debras statements after the interrogation, either in a written, signed statement or by tape
recording. In doing so, Saldate purposefully created a swearing contest he knew he would
win. And, that certainly turned out to be true in 1990, before the widespread knowledge
that in hundreds of DNA exonerations, 25% involved coerced, false or fabricated
confession evidence,
17
and where the jurors were kept in the dark about Saldates
unprofessional police record both by the State and the initial trial court judge. Now,
Saldates history of lying and misconduct has been laid bare, and according to the Ninth

17
The Innocence Project reports that of the 311 post-conviction exonerations since
2000 based on DNA evidence, 25% involved faulty confession evidence. See
http://www.innocenceproject.org/Content/DNA_Exonerations_Nationwide.php.
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Circuit Court of Appeals, it must be considered in a new suppression hearing.
18

Weighing Saldates history in the balance tips the scales strongly in Debras favor,
particularly when the circumstances of interrogation Saldate created are viewed through
the appropriately skeptical lens the U.S. Constitution requires when assessing the
admissibility of purported confession evidence.
A. Detective Saldate Violated Debras Miranda Rights By Ignoring Her
Assertion of Her Right to an Attorney.
The State bears a heavy burden in proving a voluntary, knowing,
intelligent waiver of a defendants Miranda rights. Miranda, 384 U.S. 436; North
Carolina v. Butler, 441 U.S. 369, 373 (1979); United States v. Heldt, 745 F.2d 1275, 1277
(9th Cir. 1984). Moreover, there is a presumption against finding a waiver of Miranda
rights. Butler, 441 U.S. at 373.
1. The Ninth Circuits Express Finding That No Evidence In the
Initial State Court Record Supports a Valid Miranda Waiver Is
The Starting Point for this Courts Evaluation.
Nothing in the initial state court record supports the States position that
Debra waived her Miranda rights. This point was essentially conceded by the State at the
initial Ninth Circuit oral argument.
19
Moreover, the Ninth Circuit issued an order in 2009
expressly finding that no evidence of waiver existed in the record. When the Ninth
Circuit issued its March 2013 Opinion following the district court hearing and findings, it
ignored, rather than adopted, the district courts findings of waiver. Chief Judge Alex
Kozinski expressly rejected those findings as based on backward reasoning, and issued
a scathing concurring opinion that all of the States purported confession evidence should
be suppressed in any re-trial of Debra due to Saldates failure to scrupulously adhere to
the requirements of Miranda and his failure to honor Debras assertion of her right to
counsel at the outset of the interrogation. The Ninth Circuits finding that the initial state

18
As this Court has already acknowledged, the Ninth Circuit Opinion is law of the
case with regard to the admissibility of this critical impeachment evidence. See, e.g., State
v. Cumbo, 9 Ariz. App. 253, 257, 451 P.2d 333, 337 (1969).
19
(Ninth Circuit 8/20/08 OA Transcript at 24-26).
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court evidence did not support a valid Miranda waiver should be treated as the starting
point for this Courts evaluation in the upcoming suppression hearing.
2. The State Cannot Meet Its Heavy Burden of Proving Debra
Waived her Miranda Rights.
The question of waiver must be determined on the particular facts and
circumstances surrounding that case, including the background, experience, and conduct
of the accused. Butler, 441 U.S. at 374-75. According to Miranda, [a]n express
statement that the individual is willing to make a statement and does not want an attorney
followed closely by a statement could constitute a waiver. 384 U.S. at 475. But a valid
waiver will not be presumed simply from the silence of the accused after warnings are
given or simply from the fact that a confession was in fact eventually obtained. Id. Thus,
an express statement can constitute a waiver, but silence alone after such warnings
cannot do so. Butler, 441 U.S. at 373. In addressing whether an express waiver is
required, Butler emphasized that an express written or oral statement of waiver of the
right to remain silent or of the right to counsel is usually strong proof of [its] validity,
however, an express waiver is not inevitably either necessary or sufficient .... Id. at 373.
The question is not one of form, but rather whether the defendant in fact knowingly and
voluntarily waived her rights. Id. Thus, although courts must presume the defendant did
not waive her rights, in at least some cases waiver can be clearly inferred from the
actions and words of the person interrogated. Id. (emphasis added).
a. Debras Testimony that She Asked For Counsel at the
Outset of the Interrogation is Far More Credible Than
Saldates Claim that She Did Not.
Here, Debra unequivocally asserted her right to counsel at the outset of the
interrogation immediately after Saldate read her Miranda rights and asked if she
understood them. Thus, Debra did not waive her rights. Debras word that she asserted
her right to counsel is entitled to far greater deference, given the presumption against
waiver, the corroboration from two separate individuals of Debras account, Saldates
failure to independently corroborate the interrogation, and Saldates deeply soiled record
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for lack of truthfulness and integrity. In addition to numerous court findings that Saldate
presented false or misleading grand jury testimony, coerced confessions, and tainted
police line ups, Saldate has a lengthy record of ignoring assertions of Miranda rights
(which he has previously admitted). E.g. State v. Mahler, CR 90-06988 (while being
interrogated for murder, Mahler asserted Miranda, telling Saldate he wished to remain
silent. After promising he would be lenient to Mahlers girlfriend, Saldate reinitiated
questioning, saying he did not want an admission, just Mahlers side of the story. The
Court of Appeals strongly criticized Saldates tactics, finding that Saldate intentionally
continued to interrogate after the defendant made an unequivocal invocation to remain
silent, adding, the law is clear that Saldate was required to immediately terminate the
interview.) (ER 1314, 1432-1445); State v. Gallegos, CR 90-03339 (in this murder case,
Gallegos repeatedly requested counsel during Saldates interrogation, which went ignored.
Only when Gallegos admitted involvement did Saldate issue Miranda warnings long
after custodial interrogation began and after Gallegos requested counsel); State v. King,
CR 90-0005 (King asserted his right to remain silent, but Saldate ignored the assertion and
continued his interrogation. At the suppression hearing, Saldate tried to deny Kings claim
that he attempted to stop the interrogation). (ER 1316, 1466); State v. Rangel, CR 89-
08086 (Rangel requested an attorney three times, yet Saldate continued interrogating. The
State conceded Saldate continued interrogating Rangel after three separate requests for
counsel and that subsequent admissions were obtained in clear violation of the Fifth
Amendment. The case was also remanded because in grand jury proceedings, Saldate
intentionally redacted exculpatory portions of Rangels confession, only giving
information corroborating first-degree murder.). (ER 1313, 1473, 1477); State v. Biggica,
CR 90-00715 (after Biggica initially denied participation in a murder, Saldate said it was
necessary for him to talk to Saldate about the crime, in violation of Miranda. Because
Saldate said he had no choice, Biggica confessed. He moved to suppress, but entered a no
contest plea before the hearing). (ER 1314, 1493); State v. Running Eagle, CR 87-11508
(Running Eagle asserted his right to remain silent, which Saldate ignored. While
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continuing questioning, Saldate held his face 6 to 12 inches from Running Eagles and
repeatedly poked him in the chest while Running Eagle cried. Saldate also admitted that
although he had the equipment to do so, he did not tape record Running Eagles
interrogation saying, I dont believe its very good, a taped confession or an interview
with someone especially since it involves such a serious crime.). (ER 1310, 1370-94).
There is a reason for this long line of cases in which Saldate ignored
assertions of Miranda rights. As noted above, instead of scrupulously honoring
assertions of Miranda rights, which the U.S. Supreme Court has long since emphasized to
be what Miranda irrefutably demands, Saldate made up his own rules while serving as a
detective. For example, Saldate testified at Debras first trial that even after a Miranda
assertion, he can continue having a conversation with that person, but that any
inculpatory statements he extracted after an assertion of rights simply may not be used in
court. (RT 9/10/90 at 17-19; 9/11/90 at 24-25).
20
Amazingly, Saldate still holds this
skewed view of what the law and Constitution requires. When asked in the 2010 district
court hearing in Debras case whether he was aware that when someone invoked his or
her rights, he was supposed to stop interrogating them, he called that ridiculous, saying
that was not the law. (D.Ct. RT 1/11/10 at 38-39). In fact, what the law has long required
is set forth clearly in Miranda and subsequent U.S. Supreme Court caselaw: [I]f the
individual indicates in any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 473-74; see
also Edwards, 451 U.S. 477 (all questioning must immediately cease after a suspect
requests counsel); and Smith v. Illinois, 469 U.S. 91, 98 (1984) (emphasizing that
Edwards set forth a bright-line rule that the interrogation must cease).

20
Even the PPD Rules in effect at the time of Debras arrest required interrogations
to immediately cease when a person asserted his or her Miranda rights. (D.Ct. Hg. Ex.19
at ER 930, 1989 PPD Operations Order C-5, 14(E), which states: When a person
wishes to remain silent or have an attorney present during questioning, interrogation must
cease immediately. In such cases, if an investigation would apparently be furthered by
continuing the interrogation, the departments Legal Advisor may be contacted with a
supervisors permission and asked to assist.).
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b. Even Saldates Version of the Facts Does Not Support a
Valid Waiver Finding.
Even if one could somehow still believe Saldates version, ie: that Debra did
not ask for an attorney at the outset of the interrogation, there is still no evidence upon
which a valid waiver finding can be based. First, it is undisputed that there is no evidence
of an express oral or written waiver. Thus, the State must meet its heavy burden of
proving waiver (and overcoming the presumption against waiver) through a theory that
the waiver in this case was implicit. This it cannot successfully do, because cases finding
implied waiver are clearly distinct in the following ways: (1) the facts of what happened
during the interrogations were uncontroverted or undisputed and/or (2) there were
objective, independent records created of the interrogation and/or the conduct constituting
waiver; plus (3) they involved conduct by the accused that clearly inferred a waiver of
rights. See, e.g., Butler, 441 U.S. at 373 (emphasis added).
On this record, a valid waiver cannot be clearly inferred from [Debras]
actions and words. Id. at 373. The critical evidence of what happened in this
interrogation is disputed and, thanks to Saldate, there is no objective memorialization or
corroboration to conclusively establish whether Debra voluntarily, knowingly and
intelligently waived her Miranda rights. Thus, even assuming Saldates uncorroborated
and impeachable testimony could be believed, it only shows Debra was administered and
understood her rights. No evidence shows Debra knowingly relinquished her rights.
c. Summary of Miranda Issue.
In sum, there is no evidence that Debra waived her Miranda rights. And,
credible evidence supports a finding that Saldate ignored Debras request for counsel at
the outset of the interrogation. On either ground, Saldates testimony regarding Debras
purported confession must be suppressed as obtained in violation of Miranda and the Fifth
and Sixth Amendments to the United States Constitution.
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B. Saldates Account of What Occurred in the Interrogation is Not
Sufficiently Reliable in View of Caselaw Finding This Type of
Swearing Contest Evidence Highly Suspect and Unreliable.
The State will undoubtedly want this Court to ignore the lack of any
objective, independent record of this interrogation and to treat this as a mere credibility
determination for the jury regarding who is telling the truth. This oversimplified view
misses the fact that Saldate controlled the conditions of this interrogation, and he is the
one who failed to create an objective, independent record of any type, knowing full well
that this created a swearing contest, which as a police officer and investigator of that
case, he knew he would likely win. (D.Ct. RT 1/11/10 at 92-93). This type of swearing
contest testimony is precisely the type of evidence federal courts have rejected as highly
suspect and unreliable. See, e.g., Miranda, 384 U.S. at 457; Taylor v. Maddox, 366 F.3d
992 (9th Cir.), cert. denied, 543 U.S. 1038 (2004).
In Taylor, the Court found that the state court improperly admitted an
alleged confession after treating the relative credibility of different accounts of what
happened in the interrogation room merely as a swearing-contest between the officer
and the defendant, and simply deciding to believe the officer. 366 F.3d at 1004. Taylor
recognizes that determinations of credibility in the context of incommunicado
interrogations are different from other witness credibility issues, which are normally
subject to more deference. Reliability determinations involving police officers regarding
what happened in an interrogation are not entitled to special deference, especially where
the officers created the conditions they knew would result in a swearing contest they
would inevitably win. Id. Long before Taylor, the U.S. Supreme Court criticized the
practice of incommunicado interrogation and observed the extreme disadvantage of an
accused in a swearing contest with police. Reck v. Pate, 367 U.S. 433, 446 (1961) (There
is the word of the accused against the police. But his voice has little persuasion.).
Indeed, Mirandas central purpose was to give teeth to the Fifth
Amendment right against self-incrimination and the Sixth Amendment right to counsel
and ensure that the State meet its burden of proving criminal charges against an accused:
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To maintain a fair state-individual balance, to require the government to
shoulder the entire load, to respect the inviolability of the human personality,
our accusatory system of criminal justice demands that the government seeking
to punish an individual produce the evidence against him by its own
independent labors, rather than by the cruel, simple expedient of compelling it
from his own mouth.
Id. at 460. And in Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court
emphasized that because admission of a confession so strongly tips the balance against the
defendant, courts must be especially careful about its reliability.
It is incumbent upon this Court to evaluate whether Saldates hearsay
testimony has sufficient indicia of reliability before it is admitted. It is Debras position
that Saldates complete failure to objectively corroborate what happened in the
interrogation room means that his testimony is not sufficiently reliable, especially when
viewed in light of Saldates history of dishonesty and lack of respect for suspects
constitutional rights. Just as in Taylor, Saldates account of the interrogation is highly
suspect and is not sufficiently reliable to be used in a re-trial of Debra for capital murder.
VI. CONCLUSION
Saldates interrogation practices, as well as his history of misconduct and
disrespect for constitutional rights, are a disgrace to the law enforcement profession, and
his word about what happened in Debras interrogation cannot be trusted. Debra asserted
her right to counsel at the outset of the interrogation, and Saldate ignored and trampled
over that assertion, just as he always did when interrogating suspects. Even if his account
could somehow be believed, it still cannot support a finding that Debra waived her
Miranda rights. Either way, Saldates testimony regarding Debras purported
confession must be suppressed in accordance with Miranda and the Fifth and Sixth
Amendments to the United States Constitution. In addition, Saldates failure to make an
objective record of the interrogation renders his testimony about what happened in that
room inherently unreliable, particularly in view of his sordid history. His testimony
regarding the purported confession is therefore also not sufficiently reliable to present to
a jury, and should be suppressed on that additional ground.
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3283157.1
25
DATED this 8
th
day of August, 2013.
KIMERER & DERRICK, P.C.
By /s/ Lori L. Voepel (w/permission for)
Michael D. Kimerer
1313 East Osborn, Suite 100
Phoenix, Arizona 85014
JONES, SKELTON & HOCHULI, P.L.C.
By /s/ Lori L. Voepel
Lori L. Voepel
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Debra Jean Milke
ORIGINAL electronically filed this 8
th
day
of August, 2013.
COPY mailed this 8
th
day of August, 2013,
to:
Vince H. Imbordino
MARICOPA COUNTY ATTORNEYS OFFICE
301 W. Jefferson, 8th Floor
Phoenix, Arizona 85003-2151
Attorneys for Plaintiff
/s/ Ginger Stahly
EXHIBIT A
KA Dr. Kassell
INTERVIEW OF DEBRA MILKE BY DR. KASSELL
on March 6, 1990
State v. Debra Milke
DM Debra Milke
KA: This is an interview being conducted on March 6 at .19.:00 AM, al},
with Debra Milke in my office .here at the Durango County J3il.
Ignore this. Ignore this tape recorder.
DM: I knew after you read this.
KA: What did you know?
OM: I just had a feeling.
KA: Why?
DM: (crying)
KA: What kind of a feeling did you have that, regarding being you're
recorded?
DM: That you probably don't believe me. That's what I told Ken.
KA: Now what, what is there that gives you the feeling that I don't
bel ii'!ve you?
OM: I don' t know.
KA: Is it because I'm taping it?
OM: I doh'' t 'know . (crying)
KA: Why are you crying?
DM: Because this makes me mad. I'm so angry.
KA: But the detective said in his report that you didn't cry a
you just made noises and I'm wondering, you know, how come
crying with tears here an? he says you didn't cry then. But you
tell me you did cry then.
DM: I did.
KA: So you . . . (break in
DM: Yeah, that's exactly what I did.
02045
l
.} ..


;..

..


:
:
.
.}.io;;;

,.


_j
.,
'
' !
,
KA: Can we back up a little bit and go back over the few things we
talked about just a little while ago. Cuz I told you I want to
get a flavor for the, the interview, ah, rather than go into the
details of the interview. Urn, you told me that you came in,
start at the beginning again, the man, this is the officer, came
in.
DM: He came in this room." And he asked Jan if she was, she was with
me. He asked her to leave and she did. And he came to the desk
and he, he was getting his papers ready. I don't know what he
had, some folder.
KA: Yeah.
DM:
KA:
DM:
KA:
OM:
KA:
OM:
KA:
OM:
KA:
OM:
KA:
OM:
And I asked him, have you heard anything? And he ignored me.
And then he looked up at me pnd he said, found your son. He
was murdered and you're under arrest." A.nd then I started
screaming at him.
Urn, hum.
I don't know what. What, you know, I was screaming at him.
Yeah.
And he, and 1 started to cry.
How hard were you crying?
I don't know.
You told me.
I was,
found,
Yeah.
I was screaming at him cuz it was, he told me my son was
he told me my son was murdered and then he tells me I'm
And then he said, I'm not going to tolerate your crying. He
says, he says, I know the whele story, so I'm only here to get
the truth and I'm not going to tolerate any lies. And then he
a business card and starts reading me my rights.
Okay.
And then he asked me if I understood my rights. And I told him,
I told him I've never been in trouble, I've never been arrested.
I don't know what my rights are.
KA: Urn, hum.
02046
2
., ..
i'
:.-.
' ': .. 1
OM: And then I said all I want is an attorney.
KA: Yeah.
OM:
KA:
Before I told him I didn't know what my rights were, he asked me
if I wanted it tape recorded and I told him "no, I want an
attorney.u And then he scooted-the chair in front of me.
Repeat that again,
attorney.
you said no, you would rather have an
OM: Yeah.
KA: Okay. Okay.
OM: And then he scooted the chair in front of me and he put his hands
on my knees and he told me that I could trust him, that he was my
friend.
KA: Urn, hum.
OM: And that I could trust him. And he told me he had a daughter the
same age as me and he could understand how I felt.
KA: Urn, hum.
OM: And I told him, I don't know what you want to know, cuz I don't
know anything.
KA: Urn, hum.
DM: And then I told him I was not crazy. I, I had asked him what was
I under arrest for. And he told me. And I told 111m I wasn't
crazy.
KA: Why did you tell him you're not crazy?
DM: Because he told me I'm under arrest for murder.
KA: Yeah. But, what was in your mind, what were you trying to tell
him when you said you're not crazy?
OM: That I'm not that kind of person.
KA: Okay. But what, what you told me earlier was that you were
trying to explain to him that you felt you would have to be crazy
to do something like that and you're.
DM: Yeah.
KA: Okay.
02047
3
;.--:
\;.
i,
' . ~
...
. ~
DM: And I told him I was not an animal, cuz he was telling me that I
was under arrest for murder.
KA: Urn, hum.
DM: And I tried to explain that to him.
been in trouble.
That I was not, I'd never
KA: Yeah.
DM: And he just repeatedly kept telling me that he would not tolerate
my crying and he would not tolerate any lies and he was only
there to get the t r u t ~ . And he already knew the whole story.
KA:
DM:
KA:
DM:
IqL
OM:
KA:
DM:
KA:
DM:
KA:
DM:
Urn, hum. Go on.
Then he asked me about Christopher's father.
He asked you, you didn't.volunteer that?
No, he asked me about Christopher's father.
Yes.
And I told him that Mark was in Texas: .Mark was in Texas when
all this happened.
Um, )1um-
And then, and when he, all the, all the things I did, to, to try
and protect--Chris. And then he brings up Mark and I just, I just
became. .I don't know, mad because of him.
Urn, hum.
And I said Mark, he's been
years. He's been in prison,
in and out of jail for the last 5
he abuses drugs, he's an alcoholic.
Was this, what was this I see you told me earlier
discrepancy between what the detective writes in
what you say about your pregnancy and your
Christopher.
about, ah, the
his report and
feeJ,i.ngs about
He wrote in his report that -I-said Christopher was a mistake.
And that I would not be a good mother. And I didn't. I didn't
say tt\.q t. I, I told him that I didn't want any children when I
first married Mark cuz I was, I was 20 years old when I got
married and I was going to school. But I got pregnant on the
pill. I was taking the pill and I got pregnant. And my parents
kept telling me that there was probably something wrong with him
and I should get tests to make sure it's not, deformed, or I
should get an abortion. And I couldn't do it.
02048
4
"i
:\
I
'
KA: He was not deformed because of the fact that Mark was taking
drugs and was an alcoholic?
OM: Right.
KA: Okay.
OM: And I told him that after I had Christopher, I said I knew right
then that my marriage was over.
KA: That your marriage was what?
OM: It was a mistake. My marriage was a mistake.
KA: Um, hwn.
OM: Because Mark went to prison right after I had Chris.
KA: Yeah.
OM: And after Chris turned one, I left.
KA: Urn, hum.
OM: I had to think. I was 21. And I had to think. What was more
important for Chris. Giving him a mother and a father, or taking
him away from this kind of. .abuse.
KA: Um, hwn.
OM: And it was a hard decision for me cuz I wanted him to have a
mother and a father. (crying) But Mark wouldn't quit using
drugs and he kept, he wouldn't stay out of jail. So I left.
KA: Okay.
OM: And this is what I told this officer.
around.
And he turned everything
KA:. Urn, hum. Okay. And so he.puts you in a car and starts driving
back to Phoenix with you?
DM: Yeah.
KA: And tells you that, what about, that he, of what he'd say earlier
that he told you something about you were being charged with
murder and that what would happen to you.
OM: I as ked him what was going to happen to me.
wouldn't let me go back to my Dad's house.
5
Cuz, I had, they
02049
KA: Um, hum.
DM: He put me, he puts me in this police car and tells me I'm taking
you to Phoenix. And I'm going to jai 1. And I asked him what was
going to happen to me. And he said he didn't know. But he said
that the charge carr1es a life sentence or the death penalty.
KA: Yeah.
DM: And I. .I asked him if he would call my Dad.
want to go to jail. I thought if you went
bailed out_
KA: Om, hum.
Because I didn't
to jail, you got
DM: And then I asked him if,
they would let me out,
leave.
I said I'd never been in trouble and if
then I would go to court. I wouldn't
KA: Urn, hum.
DM: But he said, no, I had to go to jail. And then we came back to
Phoenix, and urn, thE_ough all these, all these cameras everywhere
and I asked him before we got out of the car, I asked him what
all the cameras were there for. He said because you're a high
profile now. And he said, when we get out of the car, duck your
head. So I did what he said.
KA: Urn, hum.
DM: And he walked me in there and I don't know where we went. We
were in a, we got in an elevator, but I don't know where we ~ e n t .
KA: Okay. All right.
END OF TAPE.
02050
6
f ~ . . ..
EXHIBITB
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2o13 Daily Journal o:A.R. 3273
711 F.3d 998
United States Court of Appeals,
Ninth Circuit.
Debra .Jean MILKE, Petitioner-Appellant,
v.
Charles L. RYAN; Respondent-Appellee.
No. 07-99001. I Argued and Submitted Nov. 3,
2010. I Filed March 14, 2013.
Synopsis
Background: After her state conviction of murder was
affirmed on direct appeal, 177 Ariz. 118, 865 P.2d 779,
and state postconviction rei ief was denied, petitioner
sought federal habeas relief. The United States District
Court for the District of Arizona, Robert C. Broomfield,
Senior District Judge, 2006 WL 3421318, denied petition.
Petitioner appealed.
Holdings: The Court of Appeals, Kozinski, Chief Judge,
held that:
fiJ state court's focus on discoverability of impeachment
evidence, rather than disclosure requirements under Brady
and Giglio, was contrary to clearly established law as
determined by the Supreme Court of the United States;
f
2
1 state court's decision was based on an unreasonable
determination of the facts; and
fJJ prosecutor's failure to disclose impeachment evidence
violated Brady.
Reversed and remanded.
Kozinski, Chief Judge, filed concurring opinion.
West Headnotes ( 15)
Ill Criminal Law
(;=fair and impartial trial in general
Criminal Law
>::=Constitutional obligations regarding
disclosure
<' > f' i ' ' " < ' ' ; , ~ , . , . . . ~ <'
,,
121
!31
141
The Constitution requires a fair trial, and one
essential element of fairness is the prosecution's
obligation to turn over exculpatory evidence.
U.S.C.A. Const.Amend. 6.
Habeas Corpus
.;)=federal or constitutional questions
Habeas Corpus
i;=Existence and adequacy of record or findings
A state court decision that provides no
explanation is entitled to deference under
Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), but a state court decision that
fails to apply the correct controlling authority is
contrary to established federal law and not
entitled to AEDPA deference. 28 U.S.C.A.
2254(d)(l).
Criminal Law
'''"Request for disclosure; procedure
Prosecution is required to produce Brady and
Giglio material whether or not the defendant
requests any such evidence.
Habeas Corpus
L=Federal Review of State or TeiTitorial Cases
In examining the reasonableness of the state
courts' decisions, Court of Appeals on habeas
reviews looks to the last explained state-court
judgment on a claim. 28 U .S.C. A. 2254(d)( I).
Milke v. Ryan, 711 F .3d 998 (2013)
13 Cal. Daily Op. Serv. 2738,-2013 Daily Journal DAR. 3273
!51
161
171
Habeas Corpus
. "-'Discovery and disclosure
State court's focus, on motion for postconviction
relief, on discoverability of impeachment
evidence in murder prosecution, rather than
disclosure requirements under Brady and Giglio,
was contrary to clearly established law as
determined by the Supreme Court of the United
States, and thus state court's decision was not
entitled to deference under Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA),
where it was well-established that the state had a
constitutional obligation to disclose
impeachment evidence. 28 U.S.C.A.
2254(d)(l).
I Cases that cite this headnote
Habeas Corpus
r lPost-Conviction Relief and New
Trial
State court's inability, on motion for
postconviction relief, to consider impeachment
evidence suppressed by the prosecution in a
murder trial for more than a decade, and its
failure to consider evidence that was presented
to it regarding interrogating officer's history of
committing Miranda and other constitutional
violations during interrogations, constituted an
unreasonable determination of the facts and
thus state court's decision was not entitled to
deference under Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). 28
U.S.C.A. 2254(d)(2).
Habeas Corpus
:o=Adequacy or effectiveness of state
proceeding; ' d'ull and fair litigation
Court of Appeals cannot accord Antiterrorism
and Effective Death Penalty Act of 1996
(AEDPA) deference when the state court has
before it, yet apparently ignores, evidence that is
highly probative and central to petitioner's
i'< f "" ,.-. l ' "
l ,.. "' '.; (, .
181
191
1101
]Ill
claim. 28 U.S.C.A. 2254(d)(l, 2) .
Constitutional Law

Due process imposes an inescapable duty on the
prosecutor to disclose known, favorable
evidence nsmg to a material level of
importance; such favorable evidence includes
both exculpatory and impeachment material that
is relevant either to guilt or punishment.
U.S.C.A. Const.Amend. 14.
2 Cases that cite this headnote
Criminal Law
of and for police and other
agencies
The prosecutor is charged with knowledge of
any Brady material of which the prosecutor's
office or the investigating police agency is
aware.
Criminal Law
obligations regarding
disclosure
A Brady violation has three elements: first, there
must be evidence that is favorable to the
defense, either because it is exculpatory or
impeaching; second, the government must have
willfully or inadvertently failed to produce the
evidence; and third, the suppression must have
prejudiced the defendant.
2 Cases that cite this headnote
Criminal Law
. evidence
Milke v. Ryan, 711 F.3d 998 (2013}
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal DAR. 3273
1121
1131
Prosecutor committed Brady violation in state
murder prosecution by failing to disclose
evidence that interrogating officer had been
investigated and suspended for taking sexual
liberties with a female motorist, as well as
several court orders finding that the officer had
lied under oath in order to secure a conviction or
further a prosecution; such evidence was
relevant to issue of officer's willingness to lie
under oath, as well as his misogynistic attitude
toward female civilians and his willingness to
abuse his authority to get what he wanted,
prosecutors were well aware of officer's pattern
of misconduct in other criminal cases, a
reasonably diligent lawyer could not possibly
have found such evidence in time to use them at
defendant's trial, and there was a reasonable
probability that, had the jury had evidence of
officer's pattern of misconduct, there would
have been a different result as to either guilt or
penalty, since the officer's testimony regarding
defendant's alleged confession was the only
direct evidence linking defendant to the murder.
U.S.C.A. Const.Amend. 14.
3 Cases that cite this headnote
Criminal Law
and probable eftect of information
in general
Any evidence that would tend to call the
government's case into doubt is favorable for
Brady purposes.
I Cases that cite this headnote
Criminal Law
:>Request for disclosure; 'iprocedure
Duty to disclose exculpatory evidence is
applicable even where has been no request by
the accused.
1141
1151
Criminal Law
;.---Diligence on part of accused; -availability of
information
Where a defendant does not have enough
information to find Brady material with
reasonable diligence, the state's failure to
produce the evidence is considered suppression.
Criminal Law
,(;;=Materiality and probable effect of information
in general
To find prejudice under Brady and Giglio, it is
not necessary to find that the jury would have
come out differently; it suffices that there be a
reasonable probability of a different result as to
either guilt or penalty.
Attorneys and Law Firms
*1000 Lori L. Voepel (argued), Jones, Skelton & Hochuli,
P.L.C., Phoenix, AZ; Michael D. Kimerer, Kimerer &
Derrick, P.C., Phoenix, AZ, for Petitioner-Appellant.
Terry Goddard, Attorney General, Kent Cattani, Chief
Counsel, Capital Litigation Section and Julie A. Done
(argued), Assistant Attorney General, Capital Litigation
Section, Phoenix, AZ, for Respondents-Appellees.
Appeal from the United States District Court for the
District of Arizona, Robert C. Broomfield, Senior District
Judge, Presiding. D.C. No. CV-98-00060-PHX-RCB.
Before: ALEX KOZINSKI, Chief Judge, JEROME
F ARRJS and CARLOS T. BEA, Circuit Judges.
Opinion
Opinion by Chief Judge KOZINSKI; Concurrence by
Chief Judge KOZINSKI.
Milke v. Ryan, 711 F.3d 998 (2013}
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
OPINION
KOZINSKI, Chief Judge:
In I 990, a jury convicted Debra Milke of murdering her
four-year-old son, Christopher. The judge sentenced her
to death. The trial was, essentially, a swearing contest
between Milke and Phoenix Police Detective Armando
Saldate, Jr. Saldate testified that Milke, twenty-five at the
time, had confessed when he interviewed her shortly after
the murder; Milke protested her innocence and denied
confessing. There were no other witnesses or direct
evidence linking Milke to the crime. The judge and jury
believed Saldate, but they didn't know about Saldate's
*1001 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.
Mmyland, 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
Sal date's credibility hasn't been produced, perhaps
because it's been destroyed. In the balance hangs the life
of Milke, who has been on Arizona's death row for
twenty-two years.
Facts
On the last evening of his short life, Christopher Milke
saw Santa Claus at the mall. He woke up the next
morning begging his mother to let him go again. Debra
agreed and sent Christopher to the mall with her
roommate, James Styers. On the way, Styers picked up
his friend, Roger Scott. But instead of heading to the mall,
the two men drove the boy out of town to a secluded
ravine, where Styers shot Christopher three times in the
head. Styers and Scott then drove to the mall, where they
reported Christopher as missing.
Sunday morning, less than a day into the missing-child
investigation, police began to suspect Styers and Scott. It
was supposed to be Detective Saldate's day off, but the
homicide sergeant in charge of the case called him in. A
veteran of the police force, Saldate was confident he
could get the truth out of anyone he interrogated. At
headquarters he started in on Styers almost immediately,
while ..
,Ne>:t --- '' ..,..... "- ... '
Shortly before p.m., Saldate joined Mills in
interrogating Scott. According to Saldate, Mills and other
officers were happy to let a suspect talk, but Saldate's
"style," as he described it, was "a little different"-he
preferred a frontal assault. "I knew that I was going to be
straightforward with [Scott], I was going to be very
truthful with him, but I was going to make sure that
whatever he told me was going to jive with the facts."
Soon after Saldate's appearance, Scott broke. He led the
detectives to Christopher's body and told them where he
and Styers had thrown the unspent ammunition.
According to Saldate, Scott said along the way that Debra
Milke had been involved.' Detective Saldate seized on the
statement and flew by helicopter to Florence, Arizona,
where Milke had gone to stay with her father and step-
family after she learned of Christopher's disappearance.
In Florence, a deputy sheriff invited Milke to
headquarters to wait for Saldate. Saldate found Milke
waiting in a 15-by-15-foot room of the Pinal County jail.
She hadn't been arrested, nor had she been told anything
about Christopher. Saldate pushed into the room and
introduced himself. He pulled his chair close to Milke, a
forearm's length at most, and leaned in even closer.
That's when he told her that the police had found her
son-dead.
"What, what," Saldate testified Milke said. Saldate also
reported that Milke started yelling and "seemed to try
crying." But the detective saw through the ploy: "When
someone is told that their child was murdered and they
start to sob and no tears come to their eyes, it's obviously
a way for her to try to make me feel for her, and I didn't
buy it. I didn't buy it...."
*I 002 Sal date placed Milke under arrest and read out her
Miranda rights. According to Saldate, when Milke started
to tell him that she'd complained about Christopher to
Styers but never realized Styers would hurt the boy,
Saldate shut her down: "I immediately, of course, told her
that wasn't the truth and I told her I wasn't going to
tolerate that, that I wasn't there to listen to lies, nor did I
have the time."
With that, Saldate claims, Milke opened up to him about
the most intimate details of her life. He testified that, in
the span of just thirty minutes, Milke knowingly waived
her rights to silence and counsel, reminisced about her
high school years when she was "in love with life,"
feigned tears, calmed down, narrated her failed marriage
to Mark Milke-his drug and alcohol abuse and his
arrests-recounted how she'd gotten pregnant while on
birth control and contemplated an abortion, even making
Milke v. Ryan, 711 F.3d 998 (2013)
" ---- --- .. - --- ...
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal DAR. 3273
an appointment for one, discussed her fear that
Christopher was becoming like his father, confessed to a
murder conspiracy, characterized the conspiracy as a "bad
judgment call" and solicited Sal date's opinion about
whether her family would ever understand. (His view:
No.)
By the end of the interview, Saldate had more than just
cinched the case against Milke; he'd helped her
emotionally. According to Saldate, Milke said she was
"starting to feel better and was starting to get some of her
self-esteem back." Saldate also testified that Milke asked
whether she would be released that night, and when he
said she wouldn't be, she asked whether the court could
give her "probation for life" if "she could have her tubes
tied and never have children again."
Milke has always denied involvement in the murder, and
her account of the interrogation differs substantially from
Saldate's. Milke testified that she told Saldate she didn't
understand the Miranda warnings and that, when Saldate
asked if she wanted the interrogation taped, she said: "No,
I need a lawyer." According to Milke, Saldate ignored her
request, instead putting his hands on her knees and
proceeding with the interrogation; he then embellished
and twisted Milke's statements to make it sound like she
had confessed.
The jury had no independent way of verifying these
divergent accounts. Sal date didn't record the
interrogation, even though his supervisor instructed him
to do so. Saldate didn't bring a tape recorder to the
interview, nor did he ask anyone to witness the
interrogation by sitting in the room or watching through a
two-way mirror. Saldate also skipped the basic step of
having Milke sign a Miranda waiver. Not even Sal date's
interview notes made it into court: Saldate testified that he
destroyed them after writing his official report three days
after the interrogation.
The jury thus had nothing more than Saldate's word that
Milke confessed. Everything the state claims happened in
the interrogation room depends on believing Saldate's
testimony. Without Saldate's testimony, the prosecution
had no case against Milke, as there was no physical
evidence linking her to the crime and neither of her
supposed co-conspirators-Styers and Scott-would
testify against her. But Saldate was an experienced
witness and his account of Milke's purported confession
proved convincing. The jury found Milke guilty of
murder, conspiracy to commit murder, child abuse and
kidnapping. The judge sentenced her to death.
* * *
111
Normally that would be the end of the matter. Right or
wrong, a jury's credibility determinations are entitled to
respect. But the Constitution requires a fair trial, and one
essential element of fairness is the prosecution's
obligation to turn over exculpatory evidence. See United
States *1003 v. Bagley, 473 U.S. 667, 674-75, 105 S.Ct.
3375,87 L.Ed.2d 481 (1985); Giglio, 405 U.S. at 153-55,
92 S.Ct. 763; Brady, 373 U.S. at 87, 83 S.Ct. 1194. This
never happened in Milke's case, so the jury trusted
Saldate without hearing of his long history of lies and
misconduct.
The Appendix contains summaries of some of Saldate's
misconduct and the accompanying court orders and
disciplinary action. This history includes a five-day
suspension for taking "liberties" with a female motorist
and then lying about it to his supervisors; four court cases
where judges tossed out confessions or indictments
because Saldate lied under oath; and four cases where
judges suppressed confessions or vacated convictions
because Saldate had violated the Fifth Amendment or the
Fourth Amendment in the course of interrogations. And it
is far from clear that this reflects a full account of
Saldate's misconduct as a police officer. See pp. 1010-11
infra. All of this information should have been disclosed
to Milke and the jury, but the state remained
unconstitutionally silent.
Discussion
I. Antiterrorism and Effective Death Penalty Act
Principles of comity and federalism, as articulated by
Congress in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), require federal courts to
treat the decisions of the state courts with deference. But
when state courts interpret federal law incorrectly, or fail
to apply it at all, a federal court may intervene.
IZI Under AEDPA, we may grant habeas relief if the state
court proceedings "resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal Jaw, as determined by the
Supreme Court of the United States," 28 U.S.C.
2254(d)(l); or if the proceedings "resulted in a decision
that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding," id. 2254(d)(2). A state court decision that
provides no explanation is entitled to AEDPA deference,
Harrington v. Richter,- U.S.--, 131 S.Ct. 770, 784,
178 L.Ed.2d 624 (20 11 ), but a state court decision that
' ' ,_ ; ; < ',. ~ '
Milke v. Ryan, 711 F.3d 998 {2013)
' ' -- " -
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal DAR. 3273
fails to apply the correct controlling authority is "contrary
to ... established Federal law" and not entitled to AEDPA
deference, Benn v. Lambert, 283 F.3d I 040, I 051 (9th
Cir.2002) (internal quotation marks omitted); Shackleford
v. Hubbard, 234 F .3d I 072. I 077 (9th Cir.2000) (internal
quotation marks omitted).
Brady and its progeny require the state to disclose all
material evidence that could exculpate the defendant,
including evidence that could be used to impeach one of
the prosecution's witnesses or undermine the
prosecution's case. Despite Milke's persistent complaints
at trial and on appeal that impeachment evidence was
withheld, the state court never complied with Brady. This
omission resulted in a decision by the state post-
conviction court that was contrary to clearly established
Jaw as announced by the Supreme Court. 28 U.S.C.
2254(d)( I). Further, the state post-conviction court so
misread the evidence before it documenting the state's
Brady violations that its decision was based on "an
unreasonable determination of the facts." 28 U.S.C.
2254(d)(2). As a result of these two failings, we cannot
accord AEDPA deference to the state court's decision.
A. Brady Claim in State Court
1
3
1 1. The Jaw requires the prosecution to produce Brady
and Giglio material whether or not the defendant requests
any such evidence. *1004 Strickler v. Greene, 527 U.S.
263,280, I 19 S.Ct. 1936, 144 L.Ed.2d 286 (1999); United
States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976). Even though Milke wasn't required
to request impeachment evidence from Saldate's
personnel file-or elsewhere-she did so at trial by
issuing a subpoena duces tecum.
2
The subpoena requested
Saldate's "entire personnel file" including "all records of
any Internal Affairs investigations ... relating to his
technique or methods of interrogation, violations of
Miranda rights and/or improprieties during the course of
interrogation, if any." The state trial court quashed the
subpoena except for some records of Saldate's training
and documents describing police department policies,
which were submitted for in camera review.
In post-conviction proceedings, Milke argued that her
"right to a fair trial" had been compromised by her
inability to get access to impeachment evidence in
Saldate's personnel file. She asserted that the
"truthfulness and veracity" of Saldate were "material" to
her case and that, under federal and state Jaw, "the right of
confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial, which
is this country's constitutional goal." Milke argued that
she had been .. he_r. ..
examine Saldate because the state did not give her access
to impeachment evidence in his file. She blamed the trial
court for "refusing to permit the full impeachment of the
interrogating officer." Earlier in the petition, she also
asserted that the trial court had "imped[ed] defense
counsel's ability to impeach Saldate." The prosecution
didn't make the requisite disclosures, and the trial court
didn't order the prosecution to do so.
Accompanying her impeachment-evidence claim, Milke
attached documents from cases in which Saldate had
committed misconduct. See Appendix. None of the
documents had been disclosed by the state at trial. In four
of the cases, state judges threw out indictments or
confessions because Saldate had lied to a grand jury or a
judge. In State v. Reynolds, for example, the judge
ordered a new probable cause finding largely because the
defendant "was denied his right to due process and a fair
and impartial presentation of the evidence" as a result of
Saldate's lying under oath to a grand jury. Order Granting
Mot. for New Finding of Probable Cause, State v.
Reynolds, CR88-09605 (Ariz.Super.Ct. Feb. 27, 1989).
In four cases, judges threw out confessions or vacated
convictions because Saldate had violated suspects'
Miranda and other constitutional rights during
interrogations, often egregiously. In one case, for
example, Saldate testified that he interrogated a suspect
who was strapped to a hospital bed, incoherent after
apparently suffering a skull fracture. Transcript of
Motions and Trial at 23-25, State v. Yanes, No. CR-
130403 (Ariz. Super. Ct. May 31, 1983). The state
introduced the suspect's statement at his first trial, Order
Granting Mot. for New Trial, State v. Yanes, No. CR-
130403 (Ariz.Super.Ct. July 26, 1984), despite the fact
that, when interviewed by doctors, the suspect didn't
know his own name, the current year or the name of the
president, Pet. for Post-Conviction Relief, Attachment A
at 6, State v. Yanes, No. CR-130403 (Ariz.Super.Ct. Nov.
14, 1983). At the suspect's retrial, the court suppressed
"those statements made by the defendant to Armando
Saldate." Order Granting Mot. to Suppress, *1005 State v.
Yanes, No. CR-130403 (Ariz.Super.Ct. Nov. 26, 1984).
The state made no mention of any of this evidence, even
though (or perhaps because) a critical question in Milke's
case was whether Saldate ignored Milke's request for an
attorney. And, despite this trove of undisclosed
impeachment evidence, the post-conviction court rejected
Milke's claim that she'd been denied access to
impeachment material.
Milke's complaints to the post-conviction court followed
her assertions, earlier in her petition, that the state had
engaged in "repeated instances of prosecutorial
Milke v. Ryan, 711 F.3d 998 (2013)
. - -
13 Cal. Daily Op. Serv. 2738,2013 Daily Journal D.A.R. 3273
misconduct" by failing to disclose evidence in a timely
manner, thus denying her "due process, a fair trial, and a
reliable sentencing determination." Milke reminded the
post-conviction court that "egregious misconduct occurs
where the prosecutor's manipulation of evidence is likely
to have an important effect on the jury's determination."
To support this proposition, she cited the Supreme
Court's discussion of the Brady disclosure obligation in
Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct.
1868, 40 L.Ed.2d 431 ( 1974). Indeed, Milke's reference
to "egregious misconduct" comes directly from
DeChristoforo 's use of that phrase to discuss Brady. See
id at 647-48, 94 S.Ct. 1868 (referring to the "sort of
egregious misconduct held in ... Brady to amount to a
denial of constitutional due process").
Milke again raised the impeachment-evidence claim when
she petitioned the Arizona Supreme Court to review the
denial of post-conviction relief. She alleged that the judge
"denied defense counsel unfettered access to Saldate's
personnel records" and, as a result, allowed Saldate's
version of the supposed confession to go "essentially
unchallenged." This error resulted in a "one-sided
presentation of evidence" and "impeded [the jury's]
. abilicy. to fully and fairly assess the credibility of both
[Milke] and Saldate." The Arizona Supreme Court
summarily denied the petition.
141
2. In examining the reasonableness of the state courts'
decisions, we look to "the last explained state-court
judgment" on this claim. Ylst v. Nunnemaker, 501 U.S.
797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991);
accord Avila v. Galaza, 297 F.3d 911, 918 (9th Cir.2002).
In Milke's case, that judgment was the post-conviction
trial court's denial of her claim. We conclude that the
post-conviction court's decision is both "contrary to ...
clearly established Federal law," 28 U.S.C. 2254(d)(1),
and "based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding," id. 2254(d)(2). As a result, it doesn't
preclude us from reaching the merits of the Brady claim.
a. Contrary to clearly established Federal law. Long-
established Supreme Court precedent holds that the
prosecution must tum over exculpatory evidence to the
defense. See Brady, 373 U.S. at 87, 83 S.Ct. 1194; see
also Bagley, 473 U.S. at 674-78, 105 S.Ct. 3375. This
doctrine applies to impeachment evidence as well. Giglio,
405 U.S. at 154-55, 92 S.Ct. 763; see also Bagley. 473
U.S. at 676, 105 S.Ct. 3375. In Giglio, the prosecution's
case "depended almost entirely" on the testimony of an
unindicted co-conspirator. Giglio, 405 U.S. at 151, 154,
92 S.Ct. 763. Without his testimony, "there could have
been no indictment and no evidence to carry the case to
the jury." !d. at 154, 92 S.Ct. 763. The co-conspirator
gave his testimony only after being offered immunity
from prosecution, but the prosecution didn't disclose,
until after the trial, that the witness had been offered
immunity. !d. at 151-52, 92 S.Ct. 763. According to the
Supreme Court, "the jury was entitled to know" about the
offer in considering the testimony. !d. at 155, 92 S.Ct.
763. The prosecution's *1006 failure to disclose its offer
of immunity violated the defendant's due process right to
a fair trial. !d. The Court reversed the conviction and
remanded for a new trial. 1 d.
lSI Giglio 's requirement that the state disclose
impeachment evidence is well-established and should
have controlled the post-conviction court's ruling on
Milke's claim. As in Giglio, Milke's prosecutor failed to
tum over impeachment evidence about the key witness,
whose testimony was essential to the case. The
undisclosed evidence included court orders from state
judges who had taken action against the prosecution in
numerous cases because of Sal date's false statements
under oath as well as the Miranda and other constitutional
violations he committed during interrogations. See
Appendix. The evidence also included a personnel record
documenting a five-day suspension where Saldate's
supervisors had caught him in a lie and concluded that his
credibility was compromised. See p. I 012 infra. The state
didn't tum over the suspension report from the personnel
file until federal habeas proceedings.
The court documents and the information in the personnel
file fit within the broad sweep of Giglio. and it was the
prosecutor's "duty to learn of any favorable evidence
known to the others acting on the government's behalf in
the case, including the police." Kyles v. Whitley, 514 U.S.
419, 437-38, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
What happened here is more akin to active concealment.
The state court applied the wrong legal authority in
resolving Milke's claim. Instead of recognizing the state's
constitutional obligation to turn over impeachment
evidence under Giglio, the post-conviction judge said she
didn't have "specific information as to how the trial court
'refused' to permit 'full impeachment' "but guessed that
"the claim of err [sic] relates to precluding the defendant
from having access to all of Det. Saldate's personnel
records." The court found this claim "not colorable"
because Milke "fail[ed] to explain why the information
was validly discoverable and how it relates to 'full
impeachment' of Det. Saldate." But material
impeachment evidence isn't just discoverable; under
Giglio, it must be disclosed unilaterally as a matter of
constitutional right.
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A. R. 3273
Milke's claim was straightforward: She couldn't
effectively cross-examine Saldate because the state had
failed to disclose significant impeachment evidence. At
trial, she subpoenaed Saldate's personnel file hoping to
gain access to the impeachment evidence to which she
was entitled even without a request, and hoping that the
evidence in the file could lead to further impeachment
evidence elsewhere. The state moved to quash the
subpoena, then failed in its duty to disclose impeachment
evidence from the file-and elsewhere-despite the
requirements of Brady and Giglio. The trial court quashed
the subpoena, except for documents relating to Saldate's
training and those describing police department policies,
which were produced for in camera inspection. The court
documents Milke presented in post-conviction
proceedings showing Saldate's misconduct-misconduct
that should have been disclosed by the state-suggested
that the personnel file would contain even more.
Instead of examining this claim in light of Giglio--asking
whether the evidence was favorable, whether it should
have been disclosed and whether the defendant suffered
prejudice, see Strickler, 527 U.S. at 281-82, 119 S.Ct.
1936-the state court focused on the discoverability of
the-eidence and the specificity of the claim. This is not
the inquiry called for by long-standing Supreme Court
caselaw. Because the state court focused on the wrong
questions in denying Milke's impeachment-evidence
claim, it applied the wrong legal *1007 framework. Its
decision is thus "contrary to ... clearly established Federal
law" and unworthy of AEDPA deference. See Benn, 283
F.3d at 1051; Shackleford, 234 F.3d at 1077.
b. Unreasonable determination of the facts. The state
court's decision is also not entitled to AEDPA deference
because it seriously mischaracterized key evidence that
supported Milke's claim. Section 2254(d)(2) authorizes
federal habeas relief when the state-court decision was
"based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding." Such unreasonable determinations "come in
several flavors," one of them being "where the fact-
finding process itself is defective." Taylor v. Maddox, 366
F.3d 992, 1000, 100 I (9th Cir.2004).
JCiJ Here, the state court's fact-finding process was
defective in two distinct ways. The first defect resulted
from the prosecution's suppression of a suspension report
contained in Saldate's personnel file. The report was
clearly available to the state and it unquestionably
constituted Brady and Giglio evidence of the most
egregious kind, yet the state suppressed it for more than a
decade. When it was finally disclosed in federal court in
2002, the report showed that Saldate had suffered a five-
fh,""-.
Jl'-../ ,, ):..::
day suspension for accepting sexual favors from a female
motorist and then lying about it. That Saldate was
disciplined for lying on the job obviously bears on his
credibility and qualifies as Giglio evidence. The report
also discloses that Saldate had no compunction about
abusing his authority with a member of the public, a
vulnerable woman who, like Milke, found herself alone
with him and under his control. The state offers no excuse
for failing to turn over the report before the trial, nor can
we imagine any legitimate reason for this failure. After
all, the state did finally produce it when forced to do so by
an order of the district court.
The prosecution's suppression of this report in state court
distorted the fact-finding process, forcing the state judge
to make her finding based on an unconstitutionally
incomplete record. This is not a situation where the record
was incomplete because of anything petitioner did or
failed to do. The prosecution had an "inescapable"
constitutional obligation under Brady and Giglio to
produce the evidence. Kyles, 514 U.S. at 438, 115 S.Ct.
1555. Its failure to comply with that requirement rendered
the fact-finding "process employed by the state court ...
defective." See Taylor, 366 F.3d at 999. "[I]n light of the
evidence presented in the State court proceeding," 28
U.S.C. 2254(d)(2}-evidence that was materially
incomplete due to the prosecution's misfeasance-the
state court's fact-finding was fatally undermined by the
absence of evidence that the state was required by Brady
and Giglio to produce.
By withholding key evidence that it had a duty to
produce, the prosecution induced a defect that causes us
to "more than merely doubt whether the process operated
properly." Taylor, 366 F.3d at 1000. We can be certain it
didn't. "[A]ny appellate court to whom the defect is
pointed out would be unreasonable in holding that the
state court's fact-finding process was adequate." /d. The
state court's finding thus amounted to an unreasonable
determination of the facts under section 2254(d)(2).'
*I 008
171
The second defect in the state court's fact-
finding process was its failure to consider all the evidence
that was presented to it. We have held that, "where the
state courts plainly misapprehend or misstate the record in
making their findings, and the misapprehension goes to a
material factual issue that is central to petitioner's claim,
that misapprehension can fatally undermine the fact-
finding process, rendering the resulting factual finding
unreasonable." !d. at 1001. In short, we can't accord
AEDP A deference when the state court "has before it, yet
apparently ignores," evidence that is "highly probative
and central to petitioner's claim." !d.
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal DAR. 3273
Milke presented the state court with hundreds of pages of
court records from cases where Saldate had committed
misconduct, either by lying under oath or by violating
suspects' Miranda and other constitutional rights during
interrogations. Had these cases been brought to the jury's
attention, they would certainly have cast doubt on
Saldate's credibility. In addition to serving as
impeachment evidence, they also buttressed Milke's
repeated claim that she'd been prejudiced by denial of
access to Saldate's personnel file, where more
impeachment evidence could be expected to reside. This
trove of court documents was critical to Milke's claim but
ignored by the post-conviction court.
In reviewing the exhibits attached to Milke's post-
conviction petition, Judge Cheryl K. Hendrix, who was
also the trial judge, was "unable to find a reference to the
type of evidence that is allowed under Rule 608 to
impeach the credibility of a witness." That is no doubt
because she grossly misapprehended the nature and
content of the documents that Milke presented. Even
though the judge claimed to have reviewed the exhibits,
she referred to the collection of court documents as
containing mere "motions and testimony from other cases
in which Det. Saldate was the interrogating officer. It
establishes nothing. The filing of a motion to suppress
does not mean the police officer engaged in
improprieties."
Had these been merely motions and testimony, that would
be true; anyone can make unsubstantiated allegations of
misconduct. But seven of the cases included court orders
finding that Saldate had lied under oath or violated the
Fifth or the Fourth Amendments during interrogations.
Multiple judicial determinations that Saldate lied in
performing his official functions and violated suspects'
constitutional rights would have been highly relevant
where the state's case rested on his testimony. That
Milke's evidence contained court orders, rather than just
"motions and testimony," is a significant, objective fact
that the state court either misapprehended or ignored.
Either way, the court's error resulted in an unreasonable
determination of the facts. These overlooked court orders
are "highly probative and central to petitioner's claim."
Taylor, 366 F.3d at I 00 I.
* 1009 Had the state post-conviction judge realized that
the documents contained judicial findings of Saldate's
mendacity and disregard for constitutional rights, she may
well have recognized their relevance as impeachment
evidence that had not been disclosed as required by
Giglio. After all, the judge acknowledged that Milke
could have used the court records to question Saldate
about "specific instances of prior conduct" if the
information was "probative of the detective's character
for truthfulness." And this evidence certainly was, though
the court seemed unaware of it.
While the court held that "defense counsel would have
been bound by the detective's answers" to the questions
about these instances of misconduct, the documents
would still have been valuable. With court orders in hand,
defense counsel would have had a good-faith basis for
questioning Saldate about prior instances where he had
lied on the witness stand. See Foulk v. Kotz. 138 Ariz.
159, 673 P.2d 799, 801-02 (Ariz.Ct.App.l983). If Saldate
admitted the lies, his credibility would have been
impaired. If he denied them, he would have exposed
himself to a perjury prosecution. If he claimed he couldn't
remember, defense counsel could have shown Saldate the
documents to refresh his memory. See Ariz. R. Evid. 612;
State v. Hall. 18 Ariz.App. 593, 504 P.2d 534, 537
(Ariz.Ct.App.l973). And if Saldate still couldn't recall,
the jury would have had reason to doubt, not only his
veracity, but his memory as well. These court orders
would have been a game-changer for Milke, but the state
court failed to grasp their significance because it was
apparently unaware that the documents contained judicial
findings rather than mere allegations.
The post-conviction court also erred in holding that court
orders documenting Saldate's Miranda and other
constitutional violations-which also weren't disclosed-
"would have been inadmissible extrinsic evidence on a
collateral matter" and "would have been inadmissible to
show that the detective engaged in the same 'misconduct'
in this case." This ruling violated Milke's due process
rights because the evidence would have been highly
relevant to the critical question of whether Saldate
violated Miranda in Milke's case.
The issue of Saldate's Miranda compliance was
strenuously disputed at trial. The judge instructed the jury
to discount any of Milke's statements to police "unless
you determine beyond a reasonable doubt that the
Defendant made the statements voluntarily." In
anticipation of this instruction, both sides staked out
positions as to whether Saldate violated Miranda. In
closing arguments, defense counsel reminded the jury that
Saldate would continue to speak to suspects even after
they'd invoked the right to counsei-"He told you
that."-and urged the jury to use Saldate's failure to
record the interrogation as "a further piece of the puzzle
for you to take into account when considering the
voluntariness of the statements and considering the
integrity of an asserted confession." The prosecutor also
thought this issue was important. On cross-examination,
he confronted Milke about her supposed invocation of the
,,; <,!
Milke v. Ryan, 711 F.3d 998 {2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
right to counsel: "You actually didn't ask for an attorney
in reality, did you?" Milke insisted that she did. The
prosecutor asked again before sarcastically driving home
his point: "I take it you said that out loud?" Later, in
closing, the prosecutor insisted that Saldate had followed
the law relating to interrogations and that, "if [Milke] had
requested an attorney [Saldate] would have noted it."
Clearly, both sides considered it highly relevant whether
Saldate had complied with Miranda in obtaining Milke's
supposed confession.
Given that the jury was being asked to determine whether
Saldate had complied *1010 with Miranda, judicial
determinations that Saldate had engaged in a pattern of
Miranda and other constitutional violations during
interrogations would have been highly probative. Their
exclusion would have violated due process by denying
Milke "a meaningful opportunity to present a complete
defense." Crane v. Kentucky, 476 U.S. 683, 690, 106
S.Ct. 2142, 90 L.Ed.2d 636 ( 1986) (internal citation
omitted). Saldate's documented history of such violations
could have shown the jury that he habitually
circumvented Miranda, as Milke argued in state and
federal court. Likewise, these repeated violations should
have been admitted to demonstrate that Saldate planned,
from the outset, to conduct an illegal interrogation by
confronting Milke alone, without a tape recorder.
Repeated judicial findings that Saldate had violated
constitutional rights in other interrogations would have
been highly relevant to the jury's deliberations about what
took place when he and Milke were alone behind closed
doors, after which he emerged claiming to have extracted
a confession. Exclusion of the evidence of Saldate's
pattern of Miranda violations, had this evidence been
offered by the defense at trial, would have violated
Milke's right to due process.
When the state court fails "to consider key aspects of the
record," it makes an "unreasonable determination of the
facts." Taylor, 366 F.3d at 1008 (internal quotation marks
omitted). "[W]e may no more uphold such a factual
determination than we may set aside reasonable state-
court fact-finding." !d. The state court's failure to
recognize that Milke had attached judicial findings of
misconduct to her petition for post-conviction relief was
an unreasonable determination of the facts and thus
presents a separate basis for refusing to accord AEDPA
deference to the state court's denial of Milke's
impeachment-evidence claim.
II. Brady Claim in Federal Court
A. District Court
.. :/:Next
In district court, Milke again pressed the issue of the
undisclosed impeachment evidence and finally succeeded
in prying information out of Saldate's personnel file. She
presented the court records documenting Sal date's lies
and Miranda and other constitutional violations, which
she had obtained in state post-conviction proceedings. She
argued that, "[b]y summarily dismissing Petitioner's
claims without hearing, the [post-conviction] trial court
effectively denied defense counsel the means to buttress
this evidence through further discovery of Detective
Saldate's entire personnel and disciplinary file." She
stressed that "the credibility and veracity" of Sal date were
"key issues" in the case.
Milke requested all documents (I) "concerning the
evaluation of Detective Armando Sal date's (# 1875)
performance of his duties," (2) concerning "investigations
or disciplinary actions taken or contemplated against
Detective Armando Saldate" and (3) assessing Saldate's
"credibility, strengths and/weaknesses as a witness and/or
possible effects on a judge or jury." The district court
ordered the state to produce for in camera review
"Saldate's personnel file and any Internal Affairs
investigation(s) of Saldate" as well as "any assessments of
Saldate's credibility maintained by [the Phoenix Police
Department]."
The state produced just two of Saldate's annual reviews
even though Saldate had held the job for twenty-one years
before Milke's trial. All of Saldate's annual reviews
should have been produced as they all apparently
contained assessments of Sal date's job performance that
bore on his credibility. The state has never offered an
explanation for its failure to produce the remaining
reports. In addition, the state *1011 produced a notice of
Saldate's five-day suspension for taking sexual liberties
with a motorist he stopped and then lying to his
supervisors about it. The state has not explained why this
highly relevant report was not produced before Milke's
trial.
The district judge was rightly concerned that so few
documents had been produced in response to his order. He
ordered the state attorney general's office to check with
the Phoenix Police Department whether all records had
been produced. Six days later, the Phoenix police chief
and one of his lieutenants wrote to the attorney general's
office saying "every document subject to [the] order has
in fact been produced." The police department's statement
was not under oath and offered no explanation for how
someone could work for the Phoenix Police Department
for two decades and have such a short paper trail. The
district court didn't pursue the matter.
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
B. Court of Appeals
Milke's opening brief in our court complained that she
had been denied access to Saldate's file:
After cross-examining Saldate,
defense counsel sought discovery
of his personnel records for
impeachment purposes. Judge
Hendrix ordered an in camera
inspection of Saldate's file only as
to any training he received over the
prior five years, and any Phoenix
Police Department policies,
procedures or guidelines for
interrogations in effect on
December 3, 1989[, the day of the
interrogation]. None of this
material was provided to defense
counsel.
(Internal citations omitted.) Milke also complained that
the state judge, who oversaw both trial and post-
convictiOn proceedings, "disallowed discovery of
Saldate's personnel file" at both stages of the case and
"would not allow defense counsel access to anything in
Saldate's personnel files." Milke's brief further noted that
it wasn't until federal habeas that Milke "finally obtained"
"portions of Saldate's personnel files."
Her opening brief didn't cite Brady or Giglio. but it did
cite their descendant, United States v. Kiszewski, 877 F.2d
21 0 (2d Cir. 1989):
[R ]eliable evidence of a law enforcement officer's
misconduct in unrelated cases is admissible to impeach
that officer's credibility, particularly "where credibility
is the central issue in the case and the evidence
presented at trial consists of opposing stories presented
by the defendant and government agents." United
States v. Kiszewski, 877 F.2d 210, 216 (2nd [sic]
Cir.l989).
(Emphasis omitted.)
The prosecution in Kiszewski didn't turn over any Brady
material, so, shortly before trial, the defense subpoenaed
the personnel files of two FBI agents. 877 F.2d at 215.
The government admitted that one ofthe agents had a few
complaints against him, including one for which he had
been reprimanded. !d. Still, the government turned over
nothing and the district court refused to compel in camera
review. !d. The Second Circuit found a Brady violation.
!d. at 216. Kiszewski has since been cited for the
.Next
,.. ,
propositiOn that, under circumstances like Milke's, the
trial court must do more than take the government's word
that Brady material doesn't exist-the court must review
the files in question.'
*1012 Milke further argued this claim in her reply brief
where she said that "Brady v. Maryland and its progeny
require the State to disclose material impeachment
evidence" and that "[t]he state court's ruling was clearly
contrary to Brady." (Internal citation omitted.)
Having established that Milke's claim is not barred by the
state court decision (which was both contrary to clearly
established federal law and based on an unreasonable
determination of the facts), that her claim was preserved
and that she raised it before us, we tum to the merits.
C. Brady Claim on the Merits
lSI 1
9
1 Due process imposes an "inescapable" duty on the
prosecutor "to disclose known, favorable evidence rising
to a material level of importance." Kyles. 514 U.S. at 438,
I 15 S.Ct. 1555. Favorable evidence includes both
exculpatory and impeachment material that is relevant
either to guilt or punishment. See Bagley, 473 U.S. at
674-76, 105 S.Ct. 3375; Giglio, 405 U.S. at 154,92 S.Ct.
763. The prosecutor is charged with knowledge of any
Brady material of which the prosecutor's office or the
investigating police agency is aware. See Youngblood v.
West Virginia, 547 U.S. 867,869-70, 126 S.Ct. 2188, 165
L.Ed.2d 269 (2006) (per curiam).
IIOI A Brady violation has three elements. Strickler, 527
U.S. at 281-82, 119 S.Ct. 1936. First, there must be
evidence that is favorable to the defense, either because it
is exculpatory or impeaching. !d. at 281-82, 119 S.Ct.
1936. Second, the government must have willfully or
inadvertently failed to produce the evidence. !d. at 282,
119 S.Ct. 1936. Third, the suppression must have
prejudiced the defendant. !d.
llll llll I. Favorable evidence. Any evidence that would
tend to call the government's case into doubt is favorable
for Brady purposes. See Strickler, 527 U.S. at 290, 119
S.Ct. 1936. Saldate's personnel file contained an internal
investigation report showing he had been suspended for
five days. The report explains that Saldate stopped a
female motorist who had a faulty taillight and possibly an
outstanding warrant. He let her go without checking her
warrant. Let her go isn't quite accurate. Sal date suggested
they move to a less conspicuous spot and then followed
her to it. Once there, he leaned into her car, "took
liberties" with her and acted in a manner "unbecoming an
officer." She offered to meet him later for an "act of
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal DAR. 3273
sexual intercourse." Saldate showed up for the
rendezvous, but the woman didn't. Instead, someone-
perhaps the woman, once she got free of Saldate-
reported Saldate's misconduct to the police.
Questioned by investigators, Saldate steadfastly lied about
the incident until he failed a polygraph test. "[Y]our
image of honesty, competency, and overall reliability
must be questioned," one of Saldate's supervisors wrote
in a report signed by the city manager and the chief of
police. The facts of Saldate's misconduct, his lies to the
investigators and this assessment by his supervisor would
certainly have been useful to a jury trying to decide
whether Saldate or Milke was telling the truth. Not only
does the report show that Saldate has no compunction
about lying during the course of his official duties, it
discloses a misogynistic attitude toward female civilians
and a willingness to abuse his authority to get what he
wants. All of this is highly consistent with Milke's
account of the interrogation.
The court orders Milke's lawyers uncovered are also
favorable evidence that was available to the state but the
prosecution did not disclose. As Milke argued to the
*1013 state post-conviction court, the orders show that
Saldate "has lied under oath in order to secure a
conviction or to further a prosecution." Those cases all
involved the Maricopa County Attorney's Office and the
Phoenix Police Department-the same agencies involved
in prosecuting Milke:
State v. King. On direct, Saldate told Maricopa County
prosecutor Paul Rood that the defendant hadn't been
unwilling to answer questions during the interrogation.
On cross, the defense counsel read back Saldate's own
report showing that the defendant had, in fact, said he
wasn't going to answer any more questions. The trial
judge threw out the portion of the confession that
followed the suspect's request to end the interview:
"[T]he statements made up to the time when the
defendant advised the detective he no longer wished to
answer his questions are admissible. Thereafter they're
not admissible." Transcript of Voluntariness Hearing at
35, State v. King, CR90-00050 (Ariz.Super.Ct. Jun. 22,
1990).
State v. Reynolds. The judge found that Saldate's false
statements to the grand jury "denied [the defendant] his
right to due process and a fair and impartial presentation
of the evidence." Order Granting Mot. for New Finding of
Probable Cause, State v. Reynolds, CR88-09605
(Ariz.Super.Ct. Feb. 27, 1989). Two false statements
particularly worried the judge: Sal date told the grand jury
that the victim's son couldn't remember at what time he
saw defendant enter the house, drag the victim upstairs
and then leave; the son could say only that it was late at
night, according to Saldate. That statement was false. In
fact, the son told detectives that the defendant left the
apartment about 8 p.m.; the son knew this because
defendant turned off the Garry Shandling Show on the
way out. Sal date's omission was critical because other
witnesses had seen the victim alive after midnight; if the
defendant left around 8 p.m., it proved he hadn't killed
the victim in their fight.
In the same case, the grand jury asked Sal date whether the
defendant was drunk at the time of the crime, which bore
on whether the defendant could form the specific intent
for first-degree murder. Saldate testified that defendant
had said he was drinking but not drunk. However,
defendant had told Saldate that he'd been drinking beer
and smoking marijuana, and was too drunk to remember
some of the events from that night. The judge found that
"a fair presentation was not made in connection with the
evidence concerning the identification of the defendant by
the victim's son," and that "the evidence was not fully
and fairly presented with regard to defendant's possible
intoxication." Order Granting Mot. for New Finding of
Probable Cause, supra. Based largely on Saldate's two
false statements, the judge threw out the finding of
probable cause.
State v. Rodriguez. Saldate told a grand jury that the
murder victim had been shot four times, even though it
was, as the judge wrote, "undisputed" that the victim was
shot only once. Order Granting Redetermination of
Probable Cause, State v. Rodriguez, CR 161282
(Ariz.Super.Ct. Nov. 20, 1986); Mot. for Redetermination
of Probable Cause at 4, State v. Rodriguez, No. CR
161282 (Ariz.Super.Ct. Oct. 20, 1986). The Maricopa
County Attorney's Office said it had never intended to
claim there was more than one shot. Resp. to Mot. for
Redetermination of Probable Cause at 4, State v.
Rodriguez, No. CR 161282 (Ariz.Super.Ct. Nov. 13,
1986). Instead of blaming Saldate for the false statement,
the prosecution "[took] issue with the transcription of the
grand jury proceeding, for surely the testifying detective,
Armando Saldate, of the Phoenix Police Department,
and/or this State's attorney *1014 would have caught and
corrected such an incorrect representation." !d.
The trial judge didn't buy it. He found that the "reporter's
notes and the transcript of the Grand Jury" were accurate
and that Saldate had, in fact, said there were four shots.
Order Granting Mot. for Redetermination of Probable
Cause, No. CR-161282 (Ariz.Super.Ct. Nov. 20, 1986).
As a result of this false statement, the judge ordered a
redetermination of probable cause.
Milke v. Ryan, 711 F.3d 998 {2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
State v. Rangel. A judge agreed with defendant's claim
that Saldate and a prosecutor (Lawrence Turoff) misled a
grand jury by selectively recounting defendant's
statements. Order Granting Mot. to Remand, State v.
Rangel, No. CR89-08086 (Ariz.Super.Ct. Oct. 16, 1989);
Mot. to Remand at 5-7, State v. Rangel, No. CR89-08086
(Ariz.Super.Ct. Sept. 15, 1989). The judge held that
Saldate's and the prosecutor's statements had materially
affected the grand jury's deliberation and remanded the
case for a new finding of probable cause.
The above orders make out a Giglio violation on their
own, but Milke also presented additional Giglio
evidence--documents from four cases where courts found
Saldate had violated the Fifth Amendment or the Fourth
Amendment in the course of his interrogations. Again,
those cases all involved the Maricopa County Attorney's
Office and the Phoenix Police Department:
State v. Yanes. Saldate admitted interrogating a suspect
who was strapped to a hospital bed, incoherent after
apparently suffering a skull fracture. Transcript of
Motions and Trial at 23-25, State v. Yanes, No. CR-
130403 (Ariz. Super. Ct. May 31, 1983). When
interviewed by doctors, the suspect didn't know his own
name, the current year or the name of the president, Pet.
for Post-Conviction Relief, Attachment A at 6, State v.
Yanes, No. CR-130403 (Ariz.Super.Ct. Nov. 14, 1983),
but the prosecutor nonetheless presented the suspect's
statement to Saldate at trial, Order Granting Mot. for New
Trial, State v. Yanes, No. CR-130403 (Ariz.Super.Ct. July
26, 1984). The court vacated the conviction and ordered a
new trial. !d. At the suppression hearing for the new trial,
the court suppressed "those statements made by the
defendant to Armando Saldate." Order Granting Mot. to
Suppress, State v. Yanes, No. CRI30403 (Ariz.Super.Ct.
Nov. 26, 1984).
State v. Conde. Saldate interrogated a suspect in
intensive care who was intubated and connected to
intravenous lines. Saldate testified that the suspect was
drifting "in and out" of consciousness; several times,
Saldate had to shake him "to get his attention." Transcript
of Pretrial Motions at 17-18, State v. Conde, Nos. CR 88-
05881 (B), CA 90-475 (Ariz.Super.Ct. Oct. 24, 1989).
Nonetheless, Saldate read him the Miranda warnings and
went on with the interrogation. "I really don't know
whether he wasn't responding because he didn't
understand his rights or wasn't responding because of the
medication he was on," Saldate testified. By Saldate's
own admission, "it was obvious that [the defendant] was
in pain." The nurse told the suspect that she couldn't give
him more pain medicine until after he finished talking to
Sal date. When the case came to trial in 1989, the court
held the statement from this interrogation "involuntary
and inadmissible," as the Arizona Court of Appeals noted
in a published opinion three years later. State v. Conde,
174 Ariz. 30, 846 P.2d 843, 845 (Ariz.Ct.App.l992).
State v. King. Saldate kept asking questions long after
the defendant indicated he no longer wanted to answer.
The court ruled that those statements were inadmissible.
Transcript of Voluntariness Hearing at 35, supra. This is
the same case discussed earlier in the context of Saldate's
false statements. Supra p. I 0 13.
*1015 State v. Jones. In the course of a murder
investigation, Saldate directed an officer to place a
juvenile by himself in an interrogation room, where the
juvenile was handcuffed to a table. Order Granting Mot.
to Suppress at 2, State v. Jones, No. CR 90-05217
(Ariz.Super.Ct. Nov. 29, 1990). This, despite the fact that,
in the trial court's view, "the police clearly had no
information linking the Defendant to the murder or
disappearance of [the victim]," and even the Maricopa
County Attorney's Office conceded that it had no
probable cause for the detention. !d. The court suppressed
the murder confession as "the fruit of the illegal arrest"
and condemned the juvenile's illegal detention and the
interrogation that followed as "a show of flagrant
misconduct." !d. at 3.
The court order suppressing the confession was dated
November 29, 1990, just after Milke's October 12, 1990,
conviction but before her January 18, 1991, sentencing.
Though too late to affect the jury's verdict, this order
should have been produced under Giglio because
Saldate's credibility remained a live issue. On the day of
sentencing, the court entertained Milke's motions for a
new trial and for judgment notwithstanding the verdict.
The judge denied both motions, explaining that there was
no error in allowing Saldate's statement about the
confession. The judge said she "does not believe that the
Defendant made a request for an attorney prior to or
during her questioning by Detective Saldate" and that,
while "a good deal of time and effort was expended by
the defense to discredit the reports made by Detective
Saldate as to other witnesses[, t]hose efforts to discredit
his note-taking and report-writing and accuracy were not
successful." Had the Maricopa County Attorney's Office
produced the suppression order in Jones, Milke could
have used it in support of her motions for a new trial and
for judgment notwithstanding the verdict, and the
outcome might well have been different.
The Jones order-and the other orders that the state failed
to produce-would likely also have affected the judge's
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738,2013 Daily Journal D.A.R. 3273
decision whether to sentence Milke to death. As the
Supreme Court made clear in Brady itself, evidence must
be disclosed if it is "material either to guilt or to
punishment." Brady, 373 U.S. at 87, 83 S.Ct. 1194
(emphasis added). Saldate's credibility certainly was
material to punishment. For example, Milke's sentencing
allocution went into detail about the legal errors that led
to her conviction. In pleading for her life, she was
particularly critical of Saldate. She said: "I'm
disappointed that the Court allowed the use of a purported
confession to be used against me when there wasn't any
evidence to prove this alleged confession." Milke
continued:
Although Mr. Saldate testified that
he follows laws and guidelines, he
does not. He didn't follow a direct
order from a sergeant to tape-
record an interview with me. An[ ]
officer with over 20 years of
experience should also know better
than to interview a female suspect
in a closed room without a
witness.... This crime was very
serious and I feel Mr. Saldate was
extremely irresponsible. It is true
my Miranda rights were read to me
and I was apprised of my Fifth
Amendment privilege to have
counsel present. However, when I
requested such a privilege, he
immediately ignored me as if I said
nothing.
Had Milke been able to present Saldate's menagerie of
lies and constitutional violations, her allocution may well
have resonated with the sentencing judge and persuaded
her to spare Milke's life. Indeed, the trial judge herself
acknowledged that she was considering "legitimate
questions concerning guilt" as a mitigating factor, *1 016
only to find she had no such questions about guilt. Had
the judge known about Saldate's documented misconduct,
she may well have developed such "legitimate questions
concerning guilt."
1131
2. Suppression. The second element of a Brady
violation is the willful or inadvertent failure of the
prosecutor to disclose evidence favorable to the
defendant. See Strickler, 527 U.S. at 281-82, 119 S.Ct.
1936; see, e.g., Giglio, 405 U.S. at 154, 92 S.Ct. 763
("[W]hether the nondisclosure was a result of negligence
or design, it is the responsibility of the prosecutor."). We
have long held that the government has a Brady
obligation "to produce any favorable evidence in the
; . '. ' ... ~ ,, >
personnel records" of an officer. United States v. Cadet.
727 F.2d 1453, 1467 (9th Cir.l984). A defendant doesn't
have to make a request for exculpatory or impeachment
evidence: "[T]he duty to disclose [exculpatory] evidence
is applicable even though there has been no request by the
accused, and . .. the duty encompasses impeachment
evidence as well as exculpatory evidence." Strickler, 527
U.S. at 280, 119 S.Ct. 1936 (internal citation omitted).
We've also held that "the government has a duty to
examine personnel files upon a defendant's request for
their production." United States v. Henthorn, 931 F.2d 29,
3 1 (9th Cir. 1991 ). If the prosecution isn't sure whether
material in a personnel file rises to the Brady threshold,
"it may submit the information to the trial court for an in
camera inspection." Cadet, 727 F.2d at 1467-68 (internal
quotation marks omitted) (quoting United States v.
Gardner. 611 F.2d 770, 775 (9th Cir.1980)). As the
Supreme Court held in Kyles v. Whitley, "a prosecutor
anxious about tacking too close to the wind will disclose a
favorable piece of evidence." 514 U.S. at 439, 115 S.Ct.
1555.
The state is charged with the knowledge that there was
impeachment material in Saldate's personnel file. After
all, the state eventually produced some ofthis evidence in
federal habeas proceedings and has never claimed that it
could not have disclosed it in time for Milke's trial. There
can be no doubt that the state failed in its constitutional
obligation of producing this material without any request
by the defense.
The state also had an obligation to produce the documents
showing Saldate's false and misleading statements in
court and before grand juries, as well as the documents
showing the Fifth Amendment and Fourth Amendment
violations he committed during interrogations. The
prosecutor's office no doubt knew of this misconduct
because it had harmed criminal prosecutions. The police
must have known, too.
Indeed, the timing of the suppression order in Jones
underscores the cavalier attitude of the Maricopa County
Attorney's Office toward its constitutional duty to
disclose impeachment evidence. See pp. I 015-16 supra.
The prosecution argued against the Jones suppression
motion on November 16, 1990, and lost, resulting in the
suppression of the murder confession. Order Granting
Mot. to Suppress at 2, State v. Jones, No. CR 90-05217
(Ariz.Super.Ct. Nov. 29, 1990). The prosecutor's office
then began preparing for a second hearing, which would
determine whether key physical evidence-"the body,
shell casings, and shovel''-would also be suppressed.
State v. Jones, Nos. 1 CA-CR 90-1922, I CA-CR 91-
0345 at 2, 7 (Ariz.Ct.App. Nov. 10, 1992).
5
All this was
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
happening *1017 between the time of Milke's conviction
on October 12, 1990, and her sentencing on January 18,
1991. That means even as Milke's attorney was working
hard to stave off a death sentence and win a new trial or
judgment notwithstanding the verdict, the prosecutor's
office and the police were actively dealing with Saldate's
misconduct in another murder case. /d. at 7.
When the Jones court suppressed the murder confession,
this must surely have reminded the Maricopa County
Attorney's Office and the Phoenix Police Department of
Saldate's propensity to commit misconduct. Indeed, Paul
Rood, the prosecutor in Jones, was also the prosecutor in
King, where in June 1990, Saldate had been caught in a
lie about violating Miranda. See pp. 1013, 1014-15
supra. And, at about the same time as King, Rood also
received a suppression motion in State v. Mahler, a
Saldate case in which the defendant made what the
Arizona Court of Appeals called "an unequivocal
invocation to remain silent." No. 1 CA-CR 90-1890, at 4
(Ariz.Ct.App. Oct. 2, 1992). In that case, Saldate kept
speaking with the defendant after the invocation, claiming
that "he [Saldate] did not want an admission but that he
just wanted Mahler's side of the story." !d. The Arizona
Court of Appeals held that "Officer Saldate's intent was
clear ... he wanted additional statements from Mahler.
This conduct violated Mahler's right to remain silent." /d.
The trial court didn't suppress the confession, and the
defendant was convicted. But the Court of Appeals held
that the confession should not have been admitted and
remanded the case. !d. at 2, 6.
Because the Court of Appeals in Mahler didn't hand
down its decision until 1992, after Milke's trial, we don't
count this case as Brady material. But Mahler is still
significant because the suppression motion, filed on May
30, 1990, came just about the time that Rood was
handling Saldate's misconduct in King. The fact that
Rood was litigating yet another instance of Saldate's
misconduct in the summer of 1990-albeit one where the
trial court went the state's way, before being reversed-is
all the more reason to conclude that Rood and his
colleagues in the Maricopa County Attorney's Office
were intimately familiar with Saldate's pattern of
misconduct.
And, as the state absorbed the loss of the Jones confession
in November 1990 and prepared arguments to save the
physical evidence in Jones from suppression, it must have
occurred to Rood or someone in the prosecutor's office or
the police department (or both) that Saldate was also the
key witness in the high-profile case against Debra
Milke-a case where the defendant was still at trial,
actively fighting for her life. Yet no one saw fit to
..... ; .. Next
disclose this or any of the other instances of Saldate's
misconduct to Milke's lawyer.
11
4
1 Even if there somehow weren't actual knowledge of
Saldate's misconduct, inadvertent failure to disclose is
enough for a Brady violation. See Strickler. 527 U.S. at
282, 119 S.Ct. I 936. That the court documents showing
Saldate's misconduct were available in the public record
doesn't diminish the state's obligation to produce them
under Brady. In determining whether evidence has been
suppressed for purposes of Brady, our court has asked
whether the defendant "has enough information to be able
to ascertain the supposed Brady material on his own." If
so, there's no Brady violation. United States v. Aichele,
941 F.2d 761, 764 (9th Cir.l991); see also United States
v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir.1995) (holding
criminal history wasn't suppressed because the
government "disclos[ ed] ... all the information * 1018
necessary for the defendants to discover the alleged Brady
material"); United States v. Dupuy, 760 F.2d 1492, 1501
n. 5 (9th Cir.1985). Where a defendant doesn't have
enough information to find the Brady material with
reasonable diligence, the state's failure to produce the
evidence is considered suppression."
Milke was able to discover the court documents detailing
Saldate's misconduct only after a team of approximately
ten researchers in post-conviction proceedings spent
nearly 7000 hours sifting through court records. Milke's
post-conviction attorney sent this team to the clerk of
court's offices to search for Saldate's name in every
criminal case file from 1982 to 1990.' The team worked
eight hours a day for three and a half months, turning up
100 cases involving Saldate. Another researcher then
spent a month reading motions and transcripts from those
cases to find examples of Saldate's misconduct. A
reasonably diligent lawyer couldn't possibly have found
these records in time to use them at Milke's trial. Thus,
the documents describing Saldate's lies and his Miranda
and other constitutional violations during the course of
interrogations were suppressed.
Indeed, suppression of the personnel file and suppression
of the court documents run together. Had Milke been
given the full run of evaluations in Sal date's personnel
file, she would have found cases Saldate worked on. For
example, the 1989 evaluation-one of just two
evaluations turned over-lists six high-profile cases
Saldate handled. In addition, the personnel file could have
disclosed cases so corrupted by Saldate's misconduct that
they were unfit for court. As Milke argued, the court
records she found in post-conviction proceedings were
just "the 'tip of the iceberg' of Detective Sal date's
interrogation/interview practices." But without the full
Milke v. Ryan, 711 F.3d 998 (2013)
. ' .. - ---
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
personnel file, we can't know, even now, the full extent of
the misconduct that could have been used to impeach
Saldate.
1151
3. Prejudice. To find prejudice under Brady and
Giglio. it isn't necessary to find that the jury would have
come out differently. Kyles. 514 U.S. at 434, 115 S.Ct.
1555. It suffices that there be "a reasonable probability of
a different result" as to either guilt or penalty. !d. (internal
quotation marks omitted). Prejudice exists "when the
government's evidentiary suppression undermines
confidence in the outcome of the trial." !d. (internal
quotation marks omitted).
Milke's alleged confession, as reported by Saldate, was
the only direct evidence linking Milke to the crime. But
the confession was only as good as Saldate's word, as
he's the only one who claims to have heard Milke confess
and there's no recording, written statement or any other
evidence that Milke confessed. Saldate's credibility was
crucial to the state's case against Milke. It's hard to
imagine anything more relevant to the jury's-or the
judge's-determination whether to believe *1019 Saldate
than evidence that Saldate lied under oath and trampled
the constitutional rights of suspects in discharging his
official duties. If even a single juror had found Saldate
untrustworthy based on the documentation that he
habitually lied under oath or that he took advantage of
women he had in his power, there would have been at
least a hung jury. Likewise, if this evidence had been
disclosed, it may well have led the judge to order a new
trial, enter judgment notwithstanding the verdict or, at
least, impose a sentence less than death. The prosecution
did its best to impugn Milke's credibility. It wasn't
entitled, at the same time, to hide the evidence that
undermined Saldate's credibility.
Also at issue was Saldate's claim-again, unsupported by
evidence-that Milke waived her Miranda rights and
didn't ask for a lawyer. Beyond its effect on Saldate's
credibility, evidence of Saldate's falsifications and his
disregard of Miranda, would have been highly relevant to
the determination of whether Milke's alleged confession
had been lawfully obtained. The suppression of evidence
of Said ate's lies and misconduct thus qualifies as
prejudicial for purposes of Brady and Giglio.
III. Conclusion
Milke is entitled to habeas relief. We therefore
REVERSE the decision of the district court and
REMAND with instructions to GRANT a conditional
writ of habeas corpus setting aside her convictions and
sentences. Prior to issuing the writ, the district court shall
order the state to provide Milke's counsel with Saldate's
police personnel records covering all of his years of
service, including records pertaining to any disciplinary or
Internal Affairs investigations and records pertaining to
performance evaluations. If the state believes that any of
the materials it is ordered to provide are not relevant to
Brady or Giglio, it may present them to the district court
in camera, and the district court shall review them to
determine whether they are relevant to Brady or Giglio, as
explicated in our opinion. Defense counsel shall be
allowed to see the documents and to argue why each
might be Brady or Giglio material. The district court may,
in its discretion, enter a protective order requiring all
contested documents to be filed under seal and to be
designated "For Attorneys' Eyes Only," and setting such
other conditions as the district court finds necessary and
proper, while the district court decides whether the
contested materials are relevant to Brady or Giglio.
After the state has turned over these records, it shall
provide a statement under oath from a relevant police
official certifying that all of the records have been
disclosed and none has been omitted, lost or destroyed. If
a relevant police official is unable or unwilling to provide
such a certification, the district court shall hold an
evidentiary hearing to determine whether any records
have not been produced, and, if so, why. Petitioner's
counsel shall be given a reasonable period of discovery
prior to the hearing. This panel retains jurisdiction over
any appeal arising from this remand.
Upon production of the certification described above or
the conclusion of the evidentiary hearing, the district
court shall order Milke released unless the state notifies
the court within 30 days that it intends to retry Milke, and
actually commences Milke's retrial within 90 days.
The clerk of our court shall send copies of this opinion to
the United States Attorney for the District of Arizona and
to the Assistant United States Attorney General of the
Civil Rights Division, for possible investigation into
whether Sal date's conduct, and that of his supervisors and
other state and local officials, amounts to a pattern * 1020
of violating the federally protected rights of Arizona
residents.
Appendix: Detective Armando Saldate, Jr.'s
Misconduct
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
Incident
Internal
Affairs
Investigation
(Aug. 31,
1973)
Case
State v. King,
CR90-00050
(Ariz. Super. Ct.
Jun. 22, 1990)
.. :: ... ,.,,Ne>:.t
Impeachment
Evid. Type
Lying to
Internal
Affairs
Investigators
Impeachment
Evid. Type
Misconduct Allegations
Saldate stopped a motorist
who had a faulty taillight and
possibly an outstanding
warrant. He let her go without
checking her warrant. She
offered him a kiss. The two
went to a "less conspicuous
place" where Saldate "leaned
inside her car, kissed her and
deliberately began making
advances and took liberties."
They agreed to meet later for
sex. Saldate lied about the
incident to his supervisors.
The lies were discovered,
however, when the
supervisors administered a
polygraph examination.
Saldate then confessed the
details.
Misconduct
Lying under oath Saldate testified on direct
Police Department
Action
In a disciplinary write-up,
signed by the police chief
and the city manager,
Saldate was told that
"because of this incident,
your image of honesty,
competency, and overall
reliability must be
questioned." Saldate
received a five-day
suspension.
Court Order
and Fifth examination that the defendant
The trial court held
inadmissible all
statements made
after the defendant
said he wanted to
Amendment never indicated he didn't want to
Violation answer questions. On cross-
examination, defense counsel
- .,._. --- -" __ .. ., ...... -- . ... - -
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
State v. Lying under oath
Reynolds,
CR88-09605
(Ariz. Super. Ct.
Feb. 27, 1989)
State v. Lying under oath
Rodriguez, CR
161282
(Ariz.Super.Ct.
Nov. 20, 1986)
,Next
impeached Saldate with the cut off questioning.
detective's own report. Saldate
admitted the false statement-and
that he had continued to interrogate
the defendant
despite defendant's demand to
cease questioning.
Saldate made false statements to a
grand jury that undercut the
defendant's alibi and made the
defendant look more culpable than
he otherwise would have.
Saldate told the grand jury that the
victim had been shot four times
even though it was "undisputed"
that the victim had been shot only
once. The state blamed the court
reporter; it claimed Saldate never
said there was more than one shot,
and if he did, he "surely ... would
have caught and corrected such an
incorrect
representation."
The trial court held
that "the defendant
was denied his right
to due process and
a fair and impartial
presentation of the
evidence by the
manner in which the
[Grand Jury]
proceeding was
conducted." The
court ordered a new
finding of probable
cause.
The court concluded
that Saldate had
made a false
statement, not that
the court reporter
had erred: "[T]he
reporter's notes and
the transcript of the
Grand Jury both
reflect that the
testimony of the
State's witness
[Saldate] was that
the deceased was
shot four times"
even though "the
facts in this case
are undisputed that
the deceased was
shot only one time."
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
State v.
Rangel,
CR89-08086
(Ariz.Super.Ct.
Oct. 16, 1989)
State v. Jones,
No. CR 90-
05217
(Ariz. Super. Ct.
Nov. 29, 1990)
State v.
Yanes, CR
130403
(Ariz.Super.Ct.
July 26, 1984)
Lying under oath
Fourth
Amendment
Violation
Fifth
Amendment
Violation
When Saldate testified before the
grand jury, he omitted some of
defendant's statements in such a
way as to make defendant look
more culpable.
Saldate ordered a juvenile to be
detained in an interrogation room,
where he was handcuffed to a table.
This, despite the fact that the trial
court found there was no probable
cause for the detention and "the
police clearly had no information
linking the Defendant to the murder
or disappearance of [the victim]."
Saldate admitted interrogating a
suspect who was strapped to a
hospital bed, incoherent and
disoriented, after apparently
suffering a skull fracture. When
interviewed by doctors, the suspect
did not know his own name, the
year or the name of the president,
but the state nonetheless presented
,. '(
The trial court
ordered a
redetermination of
probable cause.
The court held that
the actions of
Saldate and the
prosecutor "made
the presentation of
evidence to the
grand jury less than
fair and impartial
resulting in a denial
of a substantial
procedural right to
the defendant." The
trial court ordered a
new finding of
probable cause and
remanded the case.
The trial court called
the detention that
Saldate ordered "a
show of flagrant
misconduct" and
ruled that the
murder confession
must be suppressed
as "the fruit of the
illegal arrest."
The court vacated
defendant's
conviction and
ordered a new trial.
At the suppression
hearing for the new
trial, the court
granted defendant's
motion to suppress
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
State v.
Conde, 846
P.2d 843
(Ariz. Ct.App. 1
992)
State v.
Mahler, No. 1
CA-CR 90-
1890
(Ariz.Ct.App.
Oct. 2, 1992)
Fifth
Amendment
Violation
Fifth
Amendment
Violation
the suspect's statement at trial.
Saldate interrogated a defendant in
intensive care who was intubated
and connected to intravenous lines.
Saldate testified that the defendant
was drifting "in and out" of
consciousness. Nonetheless,
Saldate read the Miranda warnings
and went on with the interrogation.
"I really don't know whether he
wasn't responding because he
didn't understand his rights or
wasn't responding because of the
medication he was on," Saldate
testified. Several times, Saldate had
to shake defendant "to get his
attention." By Saldate's own
admission, "it was obvious that
[defendant] was in pain." The nurse
told defendant that she couldn't give
him more pain medicine until after
he
finished talking to Saldate.
Defendant made an "unequivocal
invocation" of his right to remain
silent. Instead of stopping the
interrogation, Saldate pushed on,
telling defendant that "he did not
want an admission but that he just
wanted [defendant's] side of the
story."
"those statements
made by the
defendant to
Armando Saldate."
The trial court ruled
in 1989 that
statements from this
interrogation-the
first of two in the
hospital-were
"involuntary and
inadmissible."
The Arizona Court
of Appeals held that
"Officer Saldate's
intent was clear ..
.he wanted
additional
statements from
[defendant]. This
conduct violated
[defendant's] right to
remain silent." The
court suppressed all
statements
defendant made
after he invoked his
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. DailyOp. Serv. 2i38,.2013 o"aily Journal D.A.R: 3273
*1022
Chief Judge KOZINSKI, concurring:
This is a disturbing case. There's no physical evidence
linking Debra Milke to the crime, and she has maintained
her innocence since the day she was arrested. Neither of
the men who actually did the killing testified against
Milke. Roger Scott refused to testify because his
"testimony would not be what he felt was the truth." After
spending many years on death row, James Styers
continued to insist that "Debbie had nothing to do with it
and thats [sic] the truth." The only evidence linking Milke
to the murder of her son is the word of Detective
Armando Saldate, Jr.-a police officer with a long history
of misconduct that includes lying under oath as well as
accepting sexual favors in exchange for leniency and
lying about it.
*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. I 0 14; Appendix. Sal date once
ordered a juvenile to be detained in an interrogation room,
where he was handcuffed to a table, even though the
police had "no information linking the Defendant" to a
crime. Order Granting Mot. to Suppress at 2, State v.
Jones, No. CR 90-05217 (Ariz.Super.Ct. Nov. 29, 1990).
The trial court suppressed the resultant murder confession
and called the illegal detention "a show of flagrant
misconduct." ld. at 3. It later suppressed the resultant
physical evidence, too, and the Arizona Court of Appeals
affirmed both suppression orders, condemning the
"purposeful arrest lacking in probable cause, for the
improper motive of investigation." State v. Jones, Nos. I
CA-CR 90-1922, I CA-CR 91-0345, at I, 6
(Ariz.Ct.App. Nov. 10, 1992). In another case, Saldate
admitted interrogating a suspect who was strapped to a
hospital bed, incoherent after apparently suffering a skull
fracture. See Transcript of Trial, State v. Yanes, No. CR
130403, at 23-25 (Ariz. Super. Ct. May 31, 1983).
Then there's Saldate's practice of disregarding the right to
remain silent when invoked by suspects he's questioning.
The Arizona Court of Appeals described one such
example where a defendant "made an unequivocal
in'Vocation remaiTI Sal date ..
.. Ne>:t
right to silence, and
remanded the case.
the interrogation, insisting that he only wanted the
defendant's "side of the story." State v. Mahler, No. I
CA-CR 90-1890, at 4 (Ariz. Ct.App. Oct. 2, 1992). The
trial court didn't suppress the confession, and the
defendant was convicted of murder. ld. at 1-2. But the
Arizona Court of Appeals held "[t]his conduct violated
Mahler's right to remain silent" and remanded his case
because of the illegally obtained confession. !d. at 2, 4, 6.
In Milke's case, Saldate testified that he doesn't have to
stop talking to suspects just "because they asked for an
attorney. That would be ridiculous .... " What I find
ridiculous is that this man-with his track record of
trampling basic constitutional rights-is sent to
interrogate a suspect without a tape recorder, a video
recorder, a witness or any other objective means of
documenting the interrogation.
Saldate's supervisor asked him to record Milke's
interrogation, yet Sal date didn't even take a tape recorder
with him. When he arrived in Florence, Arizona, where
Milke was waiting for him, he didn't obtain a recorder
there either, even though he knew they were readily
available. Saldate claims that Milke refused to have the
conversation recorded, but admits that he "basically didn't
want to record it anyway." And why not? Because "a tape
recorder is an obstacle for [him] to get to the truth" and so
"it's [his] practice never to use a tape recorder." Of
course, being left with no recording is an obstacle for us
to get to the truth, but Sal date tells us not to worry: "[The]
conversation was going to be noted by me in a truthful
manner, so there was really no need for tape recording."
Right.
No other officer was present for the interrogation; no one
watched through a two-way mirror; no hidden camera or
microphone captured what happened inside the
interrogation room. Saldate never asked Milke to put her
confession in writing or initial a single sentence
acknowledging she had confessed. Nor did Milke sign a
Miranda waiver. Saldate testified that "[t]here was no
document ... we had available to us" where "we could
have a suspect sign that they waive their rights." And
what of the practice of having a suspect sign the officer's
Miranda card? "I never knew that ever happened,"
Sal date testified. "Never happened with my case *1 024 or
any other case I was involved in." This, from an officer
with twenty-one years on the Phoenix Police force. Soon
Milke v. Ryan, 711 F.3d 998 (2013)
.......... - - -
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
after the interrogation, Saldate destroyed the notes he
supposedly took while questioning Milke, so we have
absolutely nothing contemporaneous with the supposed
confession.
In effect, Saldate turned the interrogation room into a
black box, leaving us no objectively verifiable proof as to
what happened inside. All we have are the conflicting
accounts of a defendant with an obvious reason to lie and
a detective whose disdain for lawful process is
documented by one instance after another of lying under
oath and other misconduct.
No civilized system of justice should have to depend on
such flimsy evidence, quite possibly tainted by dishonesty
or overzealousness, to decide whether to take someone's
life or liberty. The Phoenix Police Department and
Saldate's supervisors there should be ashamed of having
given free rein to a lawless cop to misbehave again and
again, undermining the integrity of the system of justice
they were sworn to uphold. As should the Maricopa
County Attorney's Office, which continued to prosecute
Saldate's cases without bothering to disclose his pattern
of misconduct.
Indeed, given Saldate's long history of trampling the
rights of suspects, one wonders how Saldate came to
interrogate a suspect in a high-profile murder case by
himself, without a tape recorder or a witness. And how
could an interrogation be concluded, and a confession
extracted, without a signed Miranda waiver? In a quarter
century on the Ninth Circuit, I can't remember another
case where the confession and Miranda waiver were
proven by nothing but the say-so of a single officer. Is this
par for the Phoenix Police Department or was Saldate
called in on his day off because his supervisors knew he
could be counted on to bend the rules, even lie
convincingly, if that's what it took to nail down a
conviction in a high-profile case?
It's not just fairness to the defendant that calls for an
objectively verifiable process for securing confessions
and other evidence in criminal cases. We all have a stake
in ensuring that our criminal justice system reliably
separates the guilty from the innocent. Letting police get
away with manufacturing confessions or planting
evidence not only risks convicting the innocent but helps
the guilty avoid detection and strike again.
Could the people of Arizona feel confident in taking
Milke's life when the only thread on which her conviction
hangs is the word of a policeman with a record of
dishonesty and disrespect for the law? Bad cops, and
those who tolerate them, put all of us in an untenable
position.
Milke may well be guilty, even if Saldate made up her
confession out of whole cloth. After all, it's hard to
understand what reason Styers and Scott would have had
for killing a four-year-old boy. Then again, what reason
would they have to protect her if they know she's guilty?
But I seriously doubt the jury would have convicted
Milke without the purported confession. Indeed, without
the confession, there's not enough evidence to support a
conviction. Which is why it's very important that the
confession be reliable and lawfully obtained.
Both the district judge and the state trial judge found that
Saldate was telling the truth when he testified that Milke
waived her Miranda rights and didn't ask for a lawyer. I
discount the state court's finding because it was made
with no knowledge of Saldate's repeated instances of
lying under oath and other professional misconduct. One
hopes the judge would have been more skeptical of
Saldate's account had she been aware that Saldate was
*I 025 disciplined for taking advantage of a female
motorist and lying about it to his supervisors, and that he
habitually lied in court, abused the interrogation process
and disregarded Miranda.
Nor am I impressed by the district court's finding. The
district judge was aware of Saldate's suspension and
noted it in passing, Findings and Order at *4, Milke v.
Ryan, No. CV 98-60-PHX-RCB, 2010 WL 383412
(D.Ariz. Jan. 29, 2010), but he didn't specify the nature of
the misconduct, nor did he acknowledge that Saldate's
supervisors had determined that his "image of honesty,
competency, and overall reliability must be questioned"
as a result of the misconduct. It's hard to say he gave it
due weight-or any weight at all.
The district judge did note Saldate's Miranda violations
but, somehow, construed them as supporting Sal date's
credibility. The judge reasoned that when Saldate had
violated Miranda in the past, he had admitted it in his
reports: "(Saldate] testified that [Milke] never asked for
an attorney. If she had, Saldate would have noted it and
included the information in his supplemental report. He
had done so in other cases, including cases where he
continued to converse with suspects even after they had
invoked their right to remain silent or their right to an
attorney. In some of these cases evidence was suppressed
as a result of Saldate's conduct during the interrogations."
!d. at *6 (internal citations omitted). The district court
also found that "it was Saldate's practice to note in his
reports if a suspect invoked his right to remain silent or
his right to an attorney. The fact that his report in this case
does not contain such a notation supports his testimony
Milke v. Ryan, 711 F.3d 998 (2013)
-c - _,_
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal D.A.R. 3273
that Petitioner did not ask for an attorney at the outset of
the interrogation." !d. at* II.
Had the district judge taken these incidents into account,
he might well have made a different finding.
I find this backward reasoning unpersuasive. This was a
high-visibility, high-pressure case, in which Saldate was
called in especially and given much responsibility. It is
highly doubtful he would have noted an invocation that
would have undermined the alleged confession. Far more
likely, Saldate had learned from earlier cases that
documenting a Miranda violation could result in the
exclusion of a confession and make him the object of
judicial ire. This may also explain why Saldate so hastily
destroyed the original notes from the interrogation. If they
contained his habitual documentation of Miranda and
other constitutional violations during the course of
interrogation, he may have thought it wise not to have
them available to impeach his official report.
I would reverse the district court's finding that Milke
knowingly waived her rights under Miranda and Edwards
v. Arizona. 45 I U.S. 477, I 0 I S.Ct. 1880, 68 L.Ed.2d 378
(1981). The "confession," if it was obtained at all, was
extracted illegally. There can be no serious claim that
admission of the confession was harmless. I would
therefore set aside Milke's conviction on the separate
ground that it relied on an illegally-obtained confession
that probably never occurred, and bar use of the so-called
confession during any retrial of M i Ike.
Parallel Citations
Finally, the district judge said nothing at all about
Saldate's numerous instances of lying under oath, which
tainted prior criminal cases. I find this omission
inexplicable and conclude he must have overlooked them.
13 Cal. Daily Op. Serv. 2738,2013 Daily Journal D.A.R.
3273
2
3
4
5
6
Footnotes
Charles L. Ryan is substituted for his predecessor, Dora B. Schriro, as Director of the Arizona Department of Corrections, pursuant
to Fed. R.App. P. 43(c)(2).
Scott's alleged statement was excluded as hearsay at Milke's trial. Neither Scott nor Styers would testify against Milke.
The subpoena duces tecum isn't in the record, but the record does contain the Phoenix Police Department's motion to quash the
subpoena. That motion reproduces three paragraphs from the subpoena. We quote from that reproduction, which is the state's
uncontested account of the subpoena.
We note an alternative theory under which a federal court could consider Saldate's suspension report, even though it wasn't first
presented in state court: It's an open question whether Cullen v. Pinholster. --U.S.---, 131 S.Ct. 1388. 1398, 179 L.Ed.2d 557
(2011 ), applies to evidence that is suppressed by the prosecution in state proceedings yet introduced on federal habeas in support of
a Brady claim already adjudicated by the state courts. See Gonzalez v. Wong. 667 F.3d 965. 999-100 I, I 013-17 (9th Cir.2011) (W.
Fletcher, J ., concurring); Pinholster, 13 I S.Ct. at 1417 n. 5 (Sotomayor, J., dissenting) ("! assume that the majority does not intend
to suggest that review is limited to the state-court record when a petitioner's inability to develop the facts supporting his claim was
the fault of the state court itself."); id. at 1417-18 ("Consider, for example, a petitioner who diligently attempted in state court to
develop the factual basis of a claim that prosecutors withheld exculpatory witness statements in violation of Brady .... "). Because
we conclude that the withholding of the report distorted the fact-finding process so as to render the state-court finding defective,
we need not consider whether the report could be considered on federal habeas under this alternative theory.
See, e.g .. United States v. Bland. 517 F.3d 930, 935 (7th Cir.2008) (citing Kiszewski 's holding that a "court should not rely on the
government's representations regarding Brady materiality of potential impeachment evidence where credibility is the central issue
in the case"); United Stares v. Brooks. 966 F.2d 1500, 1505 (D.C.Cir.!992) (summarizing Kiszewski as holding in camera review
appropriate "when, after prosecutor's denial that any Brady material existed, prosecutor revealed that FBI agent witness's file
contained complaints that he was 'on the take' ").
The second hearing would take place on January 23, 1991, just days after Milke's sentencing. The trial court decided to suppress
the physical evidence, and the court of appeals affirmed both suppression orders. State v. Jones, Nos. I CA-CR 90-1922, I CA-
CR 91-0345 at I, 2, 7 (Ariz.Ct.App. Nov. 10, 1992).
The Second Circuit came to the same conclusion about the suppression of public records. In United States v. Payne. 63 F.3d 1200
(2d Cir.l995), a witness testified that she had packaged drugs for the defendant. !d. at 1205. But in her own criminal case, she
Milke v. Ryan, 711 F.3d 998 (2013)
13 Cal. Daily Op. Serv. 2738, 2013 Daily Journal DAR. 3273
7
submitted an affidavit saying she'd had no involvement in the drug trade. !d. The defendant knew of the witness's criminal case
and could have found the affidavit in the public record. !d. at 1208-09. Still, the court rejected the claim that the prosecutor had
"no duty to disclose the affidavit ... because it was in public court records." !d. at 1208. The test was whether defense counsel "was
aware of facts that would have required him to discover the affidavit through his own diligent investigation." /d. at 1209.
Sal date resigned from the police force on July I 0, 1990.
End of Document 2013 l'tlG:nsOI\ Heuters No ci;mn to onginal U.S Government Works
Ne>:t
,J,:
EXHIBITC
History/Documents Query Page 1 of 1
Full docket text for document 89:
ORDER by Judge Robert C. Broomfield that Respondents shall provide a copy of the "Separation
Notice" dated 9/2173 submitted for in camera review to Petitioner by 3/18/02 (cc: all counsel) re: order
filed [89-1] (SAT)
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EXHIBITD
Case 2:98-cv-00060-RCB Document 205 Filed 06/18/13 Page 1 of 4
1 THOMAS C. HORNE
ATTORNEY GENERAL
2 (FIRM STATE BAR No. 14000)
3 JULIE A. DONE
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
4 1275 WEST WASHINGTON
PHOENIX, ARIZONA 85007-2997
5 TELEPHONE: (602) 542-4686
julie.done@azag.gov
6
CADocket@azag.gov
(STATE BAR NUMBER 024370)
7 ATTORNEYS FOR RESPONDENTS
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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Debra Jean Milke,
Petitioner,
-vs-
Charles Ryan, et al.,
Respondents.
CV 98-00060-PHX-RCB
NOTICE OF FILING
DETECTIVE SALDATE'S
PHOENIX POLICE
PERSONNEL RECORDS
PURSUANT TO THIS
COURT'S MAY 29, 2013
ORDER
On May 29, 2013 this Court ordered Respondents to "(1) provide to
19 Petitioner's counsel all police personnel records covering all years of service for
20 Phoenix Police Detective Armando Saldate, Jr., including but not limited to records
21 pertaining to any disciplinary or Internal Affairs investigations and records
22 pertaining to performance evaluations; (2) file under seal with a copy to
23 Petitioner's counsel any police personnel records for Detective Saldate that
24 Respondents believe are irrelevant under Brady or Giglio; and (3) file a statement
25 under oath from a relevant police official certifying that all of Detective Saldate's
26 police personnel records have been disclosed and none has been omitted, lost, or
27 destroyed." Pursuant to this Court's order, Respondents now submit the attached
28
Case 2:98-cv-00060-RCB Document 205 Filed 06/18/13 Page 2 of 4
1 records and certifications.
2 Attached as Exhibit A is a certification from Mark Bizik, a Senior Human
3 Resources Analyst for the City of Phoenix Human Resources Department, avowing
4 that he conducted a records check pursuant to this Court's May 29, 2013 order,
5 specifically searching the City of Phoenix Personnel File, and the only record he
6 was able to locate was the Employment Record for Armando Saldate, Jr., which is
7 included as part of Exhibit A. Respondents do not believe or concede that the
8 Employment Record, included as part of Exhibit A, constitutes Brady or Giglio
9 material, but do not find it is necessary to file it under seal. The date when
10 Armando Saldate, Jr.'s Personnel File was destroyed is unknown. (See Exhibit A.)
11 Attached as Exhibit B is a certification from Guadalupe Hernandez, a
12 Secretary II Office Automation for the City of Phoenix Police Department,
13 Training Bureau, avowing that she conducted a records check pursuant to this
14 Court's May 29, 2013 order, specifically searching the City of Phoenix Police
15 Department Training Record, and the only record she was able to locate was an
16 Officer Training Record for Armando Saldate, Jr., which is included as part of
17 Exhibit B. Respondents do not believe or concede that the Officer Training
18 Record, included as part of Exhibit B, constitutes Brady or Giglio material, but do
19 not find it is necessary to file it under seal. The date when Armando Sal date, Jr.'s
20 Recruit Record was destroyed is unknown. (See Exhibit B.)
21 Attached as Exhibit C is a certification from Tim Duffy, a Detective for the
22 City of Phoenix Police Department, Professional Standards Bureau, avowing that
23 he conducted a records check pursuant to this Court's May 29, 2013 order,
24 specifically searching for any Professional Standards Bureau/Internal Affairs Files,
25 and the Phoenix Police Department no longer has the Professional Standards
26 Bureau/Internal Affairs Files for Armando Saldate, Jr. The date when Armando
27 Sal date, Jr.'s Professional Standards Bureau/Internal Affairs files were destroyed is
28 unknown. (See Exhibit C.)
Case 2:98-cv-00060-RCB Document 205 Filed 06/18/13 Page 3 of 4
1 Attached as Exhibit D is a certification from Marit Mednick, a Senior
2 Human Resources Clerk for the City of Phoenix Police Department, Fiscal
3 Management Bureau, avowing that she conducted a records check pursuant to this
4 Court's May 29, 2013 order, specifically searching the Personnel File (fiscal
5 Management Bureau File), and the Phoenix Police Department no longer has the
6 Personnel File or Division File for Armando Sal date, Jr. Armando Sal date, Jr.'s
7 entire Personnel File was destroyed in March 1996. (See Exhibit D.)
8
9 DATED this 18th day of June, 2013.
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Respectfully submitted,
Thomas C. Home
Attorney General
Jeffrey A. Zick
Section Chief Counsel
s/Julie A. Done
Assistant Attorney General
Attorneys for Respondents
Case 2:98-cv-00060-RCB Document 205 Filed 06/18/13 Page 4 of 4
1 I hereby certify that on June, 18, 2013, I electronically transmitted the
attached document to the Clerk's Office using the ECF System for filing and
2 transmittal of a Notice of Electronic Filing to the following ECF registrant:
3
LORI L. VOEPEL
4
JONES, SKELTON & HOCHULI, P.L.C.
5 2901 North Central Avenue, Suite 800
6
Phoenix, Arizona 85012
7 MICHAEL D. KIMERER
KIMERER & DERRICK, P .C.
8 221 East Indianola Avenue
9 Phoenix, Arizona 85012
10 Attorney for Petitioner
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s/Liz Gallagher
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3445972
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 1 of 15
EXHIBIT A
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 2 of 15
CERTIFICATION
1. I, Mark Bizik, am currently a Senior Human Resources Analyst for the City of
Phoenix Human Resources Department.
2. On May 29, 2013, I received a request from the Arizona Attorney General's
Office for a copy of Armando Saldate Jr.'s Personnel File. The request include a
copy of the district court's May 29, 2013 order in Milke v. Ryan, CV-98-00060
PHX-RCB ordering the State (the Arizona Attorney General's Office) to "provi e
to Petitioner's counsel all police personnel records covering all years of service
for Phoenix Police Detective Armando Saldate, Jr., including but not limited to
records pertaining to any disciplinary or Internal Affairs investigations and
records pertaining to performance evaluations."
3. On ffil1 3 ~ ;lo)3, I conducted a records check pursuant to the above reque. t.
Specifically, I searched for the City of Phoenix Personnel File. I was only able o
locate the Employment Record for Armando Saldate Jr.
4. The City of Phoenix no longer has the Personnel File for Armando Saldate Jr.
Mr. Saldate retired from the City of Phoenix on July 10, 1990.
5. The City of Phoenix only retains Personnel Files for five years after an employe
ends their employment with the City, in accordance with the Arizona State
Library, Archives and Public Records Retention Schedule.
6. Armando Saldate Jr.'s Personnel File was destroyed on UfJkNOLJIJ VIJT
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 3 of 15
I declare under penalty of perjury that the foregoing is a true and correct
statement to the best of my information and belief.
Signed this J.i.. day of June, 2013, in Phoenix,
SUBSCRIBED AND SWORN to before me this J1 day 2013.
My Commission Expires:
@
TlffallYTOITeS
Notary Public
Marlccpa county, Arizona
My comm.
2
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m II 62218

j Police Officer II 6219
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 5 of 15
EXHIBITB
Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 6 of 15
1
CERTIFICATION
2
1. I, Guadalupe Hernandez, am currently a Secretary II Office Automation for the
3 City of Phoenix Police Department, Training Bureau.
4 2. On June 14, 2013, I received a request from the Police Department's Legal Unit
for a copy of Armando Saldate Jr.'s City of Phoenix, Police Department Training
5 Record. The request included a copy of the district court's May 29, 2013 order in
Milke v. Ryan, CV-98-00060-PHX-RCB ordering the State (the Arizona Attorney
6 General's Office) to "provide to Petitioner's counsel all police personnel records
covering all years of service for Phoenix Police Detective Armando Saldate, Jr.,
7 including but not limited to records pertaining to any disciplinary or Internal
Affairs investigations and records pertaining to performance evaluations."
8
9 3. On June 14, 2013, I conducted a records check pursuant to the above request.
Specifically, I searched for the City of Phoenix, Police Department Training
l 0 Record. I was able to locate the following Training record:
[1 a. Officer Training Record
l2 4. Mr. Saldate was hired with the City of Phoenix on June 2, 1969 and the Arizona
Law Enforcement Academy no longer has the Academy Recruit Record for
13 Armando Saldate Jr.
14 5. The Arizona Law Enforcement Academy only retains Academy Recruit Records
for twenty five years after a recruit graduates from the Arizona Law Enforcement
15 Academy, in accordance with the Arizona State Library, Archives and Public
Records Retention Schedule.
16
6. Armando Saldate Jr.'s Academy Recruit Record was destroyed on an unknown
17 date. The Arizona Law Enforcement Academy does not possess a list of what
record(s) Mr. Saldate Jr. had or when they were destroyed.
18
19 1 declare under penalty of perjury that the foregoing is a true and correct
statement to the best of my information and belief.
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 7 of 15
1
Signed this 1'1 day of June, 2013, in Phoenix, Arizona.
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SUBSCRIBED AND SWORN to before me this J]_ day of Jut'lt. , 2013.
5
6
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NOTARY PUBLIC
8 My Commission Expires:
SarahL. Kerr
Notaly Public
' ; Maricopa County, Arllona
' , ,. My Comm. Expires 09-10..16
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 8 of 15
City of Phoenix Police Department
Training Bureau
Academy Training Record
Selection: Serlai:=01875
Employee Name: SALDATE JR, ARMANDO #01875
- -- .. %------------]--- ..... --
6/16/1995 721 Use of Force 95PS1
. ei16t19951713" ------------ I Policing 95CE
- .. ---f- -----------r- - - -
and Seizure 95CE
Subtotal of classes for year: 3
seminar . 24r- NN A
'Subtotal of classes for year: 1
. - . - ...

.. ...... ---1-------- . +-- ....
5/19/1989) j Module 12
4/11/1989 i 453 j Module 13
Subtotal of classes for year: 5
..... - ----- .
10/19/1987 3881 Bomb Investigations
:_: ==-
Subtotal of classes for year: 3
. - -- .....

____ ... _. ..
3/28/1986 446 I Module 7
. . .................... - -- .... - --.!. ..... .
Subtotal of classes for year: 2
Created byITB
Advanced Training
. .. ...... --. - ... .. -:- ..................... , ........ - - r- - --
i 4! N/N I A
- -- -------- -------- -- - - - 4or--N,N------i----;---
I I
.. ------ :::::llr: .......... ---:----- --- .
............. !_.............. ,-- --+-
1 8' N/N ! A
------------ i 40 I N/N ,--A--
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. ..... - .... -- ............. - ----' ..................... J.. ...... -- - -- .. -- ..... .
Page 1 of2 Report run by PPSB\ghemand
Report executed on 6/14/2013 2:03:38 PM
Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 9 of 15
City of Phoenix Police Department
Training Bureau
Academy Training Record
'Subtotal of classes for year: 2
.. 000'00 -"''ROOOO .. 0 '0 "'' '0" '
9/12/1964!443 ! Module 4
e/1211984l5o3 - - .. -MODULE 4
. .......... , __ ... . ..!............ ... . . .
B N/N A
- "_., .... _____ _, .... - .....
2; NIY I A
.......... L ................... L ......................... l ................. ..
Subtotal of classes for year: 2
16/7/1-9831411. - ...... - . F
.
- ----
I B; N/N . A
' J
. . ---------------------- ,._..,. .. - - ------l--.. ----
:Subtotal of classes for year: 2
.......... ------------ ........... ..
12/9/1976 9409 \Search Warrants
. ............ ......... ....... .. ....................................... L ........ ..... . . .... .. .
. '4T''''"NN A
....... J .... __________ .l
'Subtotal of classes for year: 1
Created by ITB
Advanced Training
Page 2 of 2 Report run by PPSB\ghemand
Report executed on 6/14/2013 2:03:38 PM
Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 10 of 15
EXHIBITC
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 11 of 15
CERTIFICATION
1. I, Tim Duffy #6271, am currently a Detective for the City of Phoenix Police
Department, Professional Standards Bureau.
2. On May 29, 2013, I received a request from the Arizona Attorney General's
Office for a copy of Armando Saldate Jr.'s Professional Standards Bureau/
Internal Affairs files. The request included a copy of the district court's May 29,
2013 order in Milke v. Ryan, CV-98-00060-PHX-RCB ordering the State (the
Arizona Attorney General's Office) to "provide to Petitioner's counsel all police
personnel records covering all years of service for Phoenix Police Detective
Armando Saldate, Jr., including but not limited to records pertaining to any
disciplinary or Internal Affairs investigations and records pertaining to
performance evaluations.
3. On June 10, 2013, I conducted a records check pursuant to the above request.
Specifically, I searched for any Professional Standards Bureau/ Internal Affairs
Files.
4. Mr. Saldate retired from the City of Phoenix on July 10, 1990. The Phoenix
Police Department no longer has the Professional Standards Bureau/ Internal
Affairs files for Armando Saldate Jr.
5. The City of Phoenix only retains personnel files for five years after an employee
ends their employment with the City, in accordance with the Arizona State
Library, Archives and Public Records Retention Schedule.
6. Armando Saldate Jr.'s Professional Standards Bureau/ Internal Affairs files were
16 destroyed on an unknown date. PSB does not possess a list of what record(s) Mr.
17
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22
Saldate Jr. had or when they were destroyed.
I declare under penalty of perjury that the foregoing is a true and correct
statement to the best of my information and belief.
1
Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 12 of 15
1 Signed this l'i day of June, 2013, in Phoenix, Arizona.
2
3
imDuffy
4
SUBSCRIBED AND SWORN to before me this /.!i!aay of 2013.
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8 My Commission Expires: /lA A/ I y, 1 y
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Jeanette Plolum
NotaJy Public
Mtulcopa COunty. AriZona
My OcJmm..Elqllm 05-14-2014
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 13 of 15
EXHIBITD
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 14 of 15
CERTIFICATION
1. I, Marit Mednick, am currently a Senior Human Resources Clerk for the City of
Phoenix Police Department, Fiscal Management Bureau.
2. On May 29, 2013, I received a request from the Arizona Attorney General's
Office for a copy of Armando Saldate Jr.'s Personnel File. The request included a
copy of the district court's May 29, 2013 order in Milke v. Ryan, CV-98-00060-
PHX-RCB ordering the State (the Arizona Attorney General's Office) to "provide
to Petitioner's counsel all police personnel records covering all years of service
for Phoenix Police Detective Armando Saldate, Jr., including but not limited to
records pertaining to any disciplinary or Internal Affairs investigations and
records pertaining to performance evaluations."
3. The Phoenix Police Department merges the Division File into the Personnel File
once an employee leaves the Department.
4. On or about May 29, 2013, I conducted a records check pursuant to the above
request. Specifically, I searched for the Personnel File (Fiscal Management
Bureau File).
5. Mr. Saldate retired from the City of Phoenix on July 10, 1990 and the Phoenix
Police Department no longer has the Personnel File or Division File for Armando
Saldate Jr.
6. The City of Phoenix only retains personnel files for five years after an employee
ends their employment with the City, in accordance with the Arizona State
Library, Archives and Public Records Retention Schedule.
7. Armando Saldate Jr.'s entire Personnel File was destroyed in March 1996.
1
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Case 2:98-cv-00060-RCB Document 205-1 Filed 06/18/13 Page 15 of 15
I declare under penalty of perjury that the foregoing is a true and correct
statement to the best of my information and belief.
Signed this
1
'f"' day of June, 2013, in Phoenix, Arizona.
SUBSCRIBED AND SWORN to before me this of ju.,J-., 2013.
9 My Commission Expires: M. A..t..t 1 '1, d-1>
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Case 2:98-cv-00060-RCB Document 210 Filed 07/05/13 Page 1 of 3
1 THOMAS C. HORNE
ATTORNEY GENERAL
2 (FIRM STATE BAR No. 14000)
3 JULIE A. DONE
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
4 1275 WEST WASHINGTON
PHOENIX, ARIZONA 85007-2997
5 TELEPHONE: (602) 542-4686
julie.done@azag.gov
6
CADocket@azag.gov
(STATE BAR NUMBER 024370)
7 ATTORNEYS FOR RESPONDENTS
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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Debra Jean Milke,
Petitioner,
-vs-
Charles Ryan, et al.,
Respondents.
CV 98-00060-PHX-RCB
SUPPLEMENTAL NOTICE
OF FILING DETECTIVE
SALDATE'S PHOENIX
POLICE PERSONNEL
RECORDS PURSUANT TO
THIS COURT'S MAY 29, 2013
ORDER
On May 29, 2013 this Court ordered Respondents to "(1) provide to
19 Petitioner's counsel all police personnel records covering all years of service for
20 Phoenix Police Detective Armando Saldate, Jr., including but not limited to records
21 pertaining to any disciplinary or Internal Affairs investigations and records
22 pertaining to performance evaluations; (2) file under seal with a copy to
23 Petitioner's counsel any police personnel records for Detective Saldate that
24 Respondents believe are irrelevant under Brady or Giglio; and (3) file a statement
25 under oath from a relevant police official certifying that all of Detective Saldate's
26 police personnel records have been disclosed and none has been omitted, lost, or
27 destroyed."
28
Pursuant to this Court's order, Respondents submitted four
Case 2:98-cv-00060-RCB Document 210 Filed 07/05/13 Page 2 of 3
1 certifications, Exhibits A-D, on June 18, 2013. Since that time, the parties have
2 conducted interviews with the individuals who submitted the certifications in
3 Exhibits A-D, and with Phoenix Police Department Detective Tom Van Dam.
4 Based upon those interviews and pursuant to Petitioner's request, Respondents
5 now submit the following amended or supplemental certifications.
6 Attached as Exhibit E is an amended certification from Mark Bizik, a Senior
7 Human Resources Analyst for the City of Phoenix Human Resources Department,
8 amending his certification previously submitted as Exhibit A.
9 Attached as Exhibit F is an amended certification from Tim Duffy, a
10 Detective for the City of Phoenix Police Department, Professional Standards
11 Bureau, amending his certification previously submitted as Exhibit C.
12 Attached as Exhibit G is a certification from Marit Mednick, a Senior
13 Human Resources Clerk for the City of Phoenix Police Department, amending her
14 certification previously submitted as Exhibit D.
15 Attached as Exhibit H is a supplemental certification from Tom Van Dam, a
16 Detective at the City of Phoenix Police Department, who, in 2001, was assigned to
17 the legal unit at the Phoenix Police Department.
18 DATED this 5th day of July, 2013.
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Respectfully submitted,
Thomas C. Home
Attorney General
Jeffrey A. Zick
Section Chief Counsel
s/Julie A. Done
Assistant Attorney General
Attorneys for Respondents
Case 2:98-cv-00060-RCB Document 210 Filed 07/05/13 Page 3 of 3
1 I hereby certifY that on July 5, 2013, I electronically transmitted the attached
document to the Clerk's Office using the ECF System for filing and
2 transmittal of a Notice of Electronic Filing to the following ECF registrant:
3
LORI L. VOEPEL
4
JONES, SKELTON & HOCHULI, P.L.C.
5 2901 North Central Avenue, Suite 800
6
Phoenix, Arizona 85012
7 MICHAEL D. KIMERER
KIMERER & DERRICK, P.C.
8 221 East Indianola Avenue
9 Phoenix, Arizona 85012
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Attorneys for Petitioner
s!Liz Gallagher
3465410
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 1 of 12
EXHIBITE
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 2 of 12
Al\1ENDED CERTIFICATION
1. I, Mark Bizik, am currently a Senior Human Resources Analyst for the
City of Phoenix Human Resources Department.
2. On May 29, 2013, I received a request from the Arizona Attorney
General's Office for a copy of Armando Saldate Jr.'s Personnel File. The request
included a copy of the district court's May 29, 2013 order in Milke v. Ryan, CV-
98-00060-PHX-RCB ordering the State (the Arizona Attorney Genenil's Office) to
"provide to Petitioner's counsel all police personnel records covering all years of
service for Phoenix Police Detective Armando Saldate, Jr., including but not
limited to records pertaining to any disciplinary or Internal Affairs investigations
and records pertaining to performance evaluations."
3. On May 30, 2013., I conducted a records check pursuant to the above
request. Specifically, I searched for the City of Phoenix Personnel File. I was only
able to locate the Employment Record for Armando Saldate Jr.
4. The City of Phoenix no longer has the Personnel File for Armando
Saldate Jr. Mr. Saldate retired from the City of Phoenix on July 10, 1990.
5. The City of Phoenix only retains personnel files for five years after an
employee ends their employment with the City, in accordance with the Arizona
State Library, Archives and Public Records Retention Schedule.
6. Armando Saldate Jr.'s entire Personnel File was destroyed on an
unknown date.
7. When a City employee receives official discipline, typically a copy
stays with the employee's department. The original disciplinary record comes to us
for placement into the City's personnel file. It is then kept in the personnel file
with the rest of the regular employment records until it is destroyed/purged in
accordance with the records retention schedule.
3256729.1
Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 3 of 12
.1 8. There were no disciplinary. or any other records for Detective
2 Armando Sal date in the City's personnel file. The only records remaining in his
3
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file are the employment "cards."
9. All other records in Detective Saldate's personnel file were likely
destroyed in the 1990's in accordance with the City's five year records retention
schedule. I do not know how or why there were records turned over to the district
court in 2001 from Detective Saldate's file when all records should have been
destroyed by that point.
9 10. I also checked with the records center regarding whether they have a
10
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record of when Detective Saldate's records were destroyed, but they do not
maintain a record with that information.
I declare under penalty of perjury that the foregoing is a true and correct statement
to the best of my information and belie
Signed this .J!:. day of July, 2013.
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SUBSCRJBED AND SWORN to before me this rid.-day of July, 2013.
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My Commission Expires:
lr2-1.8-/0
3256729.1
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Ncrr=:.'I>IC
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 4 of 12
EXHIBITF
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Case 2:98-cv-00060-RCB _Document 210-1 Filed 07/05/13 Page 5 of 12
AMENDED CERTIFICATION
1. I, Tim Duffy #6271, am currently a Detective for the City of Phoenix
Police Department, Professional Standards Bureau.
2. On May 29, 2013, I received a request from the Arizona Attorney
General's Office for a copy of Armando Saldate Jr.'s Professional Standards
Bureau/Internal Affairs files. The request included a copy of the district court's
May 29, 2013 order in Milke v. Ryan, CV-98-00060-PHX-RCB ordering the State
(the Arizona Attorney General's Office) to "provide to Petitioner's counsel all
police personnel records covering all years of service for Phoenix Police Detective
Armando Saldate, Jr., including but not limited to records pertaining to any
disciplinary or Internal Affairs investigations and records pertainingto performance
evaluations."
3. On June 10, 2013, I conducted a records check pursuant to the above
request. Bpecifically, I searched for any Professional Standards Bureau/Internal
Affairs Files.
4. Mr. Saldate retired from the City of Phoenix on July 10, 1990. The
Phoenix and the Phoenix Police Department no longer has the Professional
Standards Bureau/Internal Affairs files for Armando Saldate Jr.
5. The City of Phoenix only retains personnel files for five years after an
employee ends their employment with the City, in accordance with the Arizona
State Library, Archives and Public Records Retention Schedule.
6. Armando Saldate Jr.'s Professional Standards Bureau/Internal Affairs
files were destroyed on an unknown date. PSB does not possess a list of what
records(s) Mr. Saldate Jr. had or when they were destroyed.
7. I have reviewed the document disclosed by the Phoenix Police
Department in 2001 entitled "Separation Notice." Although that type of
disciplinary notice would normally be generated in the professional standards
3256730.1
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 6 of 12
bureau/internal affairs division, we have no record of that document contained in
our files or database.
8. All records are destroyed/purged in accordance with the City's record
retention schedule five years after the internal investigation has concluded. The
only exception is where the legal department has issued a lega!" (litigation) "hold"
6 . on a particular file. Absent a litigation "hold," the files are destroyed in accordance
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with the retention schedule.
I declare under penalty of perjury that the foregoing is a true and correct statement
to the best of my information and belief.
Signed this.:!!._ day of July, 2013.
.:::>-- . . ? 7 I
TIM FY
SUBSCRIBED AND SWORN to before me this ~ r A day of July, 2013.
NOTARY PUBLIC
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3256730.1
Krlsune Leon
Notary Public
Mallcopa County, Arizona
MyComm. Expires 1o.2D-18
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 7 of 12
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 8 of 12
AMENDED CERTIFICATION
1. I, Marit Mednick, am currently a Senior Human Resources Clerk for
the City of Phoenix Police Department, Fiscal Management Bureau.
2. On May 29, 2013, I received a request from the Arizona Attorney
General's Office for a copy of Armando Saldate Jr.'s Personnel File. The request
included a copy of the district court's May 29, 2013 order in Milke v. Ryan, CV-
98-00060-PHX-RCB ordering the State (the Arizona Attorney General's Office) to
"provide to Petitioner's counsel all police personnel records covering all years of
service for Phoenix Police Detective Armando Saldate, Jr .. , including but not
limited to records pertaining to any disciplinary or Internal Affairs investigations
and records pertaining to performance evaluations."
3. The Phoenix Police Department merges the Division File into the
Personnel File once an employee leaves the department.
4. On or about May 29, 2013, I conducted a records check pursuant to the
above request. Specifically, I searched for the Personnel File (Fiscal Management
Bureau File).
5. Mr. Saldate retired from the City of Phoenix on July 10, 1990 and the
Phoenix Police Department no longer has the Personnel File or Division File for
Armando Saldate Jr.
6. The City of Phoenix only retains personnel files for five years after an
employee ends their employment with the City, in accordance with the Arizona
State Library, Archives and Public Records Retention Schedule.
7. I am assuming that Armando Sal date Jr.'s entire Personnel File was
destroyed in accordance with the records retention schedule in March 1996.
8. There is a City of Phoenix procedure through which a legal (litigation)
"hold" can be placed on an employee's files to prevent it from being destroyed in
accordance with the records retention schedule. I do not know if that was ever done
3256728.1
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 9 of .12
with Detective Saldate's files, but the fact that the records are no longer in existence
indicates that there .apparently was no such "hold" on his files. For a ''hold" to be
placed on a file, the City of Phoenix legal department would have to send us a
written notice that they have a "hold" on that particular file, and that file would not
be. destroyed pursuant to the 5 year retention policy until and unless they send us
another written notice that there is no longer a "hold" on that file.
9. I don't have an explanation as to why or how employee records from
Detective Saldate's personnel files were located and produced by the City in 2001
where all of his files should have been destroyed within five years of his retirement
in 1990 pursuant to the City's record retention schedule. I was not employed by the
City until 2005 and do not have personal knowledge of when Detective Saldate's
records were actually destroyed.
I declare under penalty of perjury that the foregoing is a true and correct statement
to the best of my information and belief.
Signed tbis'l..L day of July, 2013-y ,f;jj
MNRIT MEDNICK
SUBSCRIBED AND SWORN to before me this Z ;..A day of July, 2013.
~ 1 - C - - - - - - - - - -
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3256728.1
JeanllltePiolum
Notary Public
"'-''copa COunty, Arizona
MyComm. Elcpirw0&-14-2014
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 10 of 12
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 11 of 12
SUPPLEMENTAL CERTIFICATION
1. I, Tom Van Dom, am currently a Lieutenant and Attorney at the City
of Phoenix Police Department.
2. In 2001, I was assigned to the legal unit at the Phoenix Police
Department, and was responsible for gathering documents for discovery requests,
court orders and public records requests pertaining to police department personnel.
3. Depending on the breadth of the order of request, I would always
check with the custodian of records for the following files as part of the document
gathering process: the division file, the fiscal management bureau personnel file,
the City of Phoenix personnel file, and, where necessary, the professional standards
bureau file.
4. I have reviewed documents relating to the 2001 district court order for
disclosure of Detective Armando Saldate's personnel and disciplinary records and
confirm that in 2001, I located several documents after following the above search
procedure. One of those documents was the 1973 "Separation Notice," which must
have come from Saldate's personnel/division file, as there was nothing in the
internal affairs professional standards bureau file.
5. I am not sure why records were available during my search in 2001,
when, according to the custodians of record who conducted searches in June 2013,
all records from the above files were destroyed pursuant to the City's record
retention schedule within five years of Detective Saldate' s retirement from the
police department.
6. When I conducted my search in 2001, I do not recall anyone indicating
to me that records had been destroyed/purged from Detective Saldate's file. Had
the custodians indicated that to me in 2001, I would have noted that fact in my
April16, 2001letter to the Attorney General's Office with the records I was able to
locate.
3256732.1
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Case 2:98-cv-00060-RCB Document 210-1 Filed 07/05/13 Page 12 of 12
7. The City of Phoenix legal department will sometimes place a litigation
"hold" on an employee's personnel file to prevent it from being destroyed in
accordance with the records retention schedule. I do not know if any such "hold"
was ever placed on Detective Saldate's file, but there was none in place to my
knowledge at the time I conducted my 2001 search.
I declare under penalty of perjury that the foregoing is a true and correct statement
to the best of my information and belief.
Signed this s<l' day of July, 2013. :s;t-
c:;::: c:::::::J "' . ..., /s/1.s
TOMVANDO
SUBSCRIBED AND SWORN to before me this_s-h- day of July, 2013.
My Commission Expires:
;v< o. '1 I % .;--ra y
3256732.1

YPUBLIC
2
Jlllntlle Plolum
NolaryPubllc
Mllfcopa COunty, Arizona
My Comm. Expires IJ5.14-2014
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STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL
SPECIAL INVESTIGATIONS SECTION
REPORT
DATE WRITTEN BY AGENT: August 3, 2010 AGI/LF NUMBER: P002-2010-001298
Doc#915035
CASE NAME: Saldate
REPORT TYPE: Records review from Encanto Justice Court
AGENT: Mike Edwards }.//;SUPERVISOR: Andy Rubalcavaf{V PAGE 1 OF 1 PAGE(S)
On 7/22/10 I picked up a certified copy of the eviction file from the Encanto Justice
Court, Case #cc2009-234139. The record shows the following:
1. Belinda Reynolds was served the summons for eviction on 4/17/2009 by a
process server.
2. The trial was set for 4/23/2010. Belinda Reynolds did not appear and a
judgment was entered for the plaintiff, Consolidated Asset Management Inc.
3. On 4/30/2010 a writ of restitution was ordered by the justice of the peace.
4. The certificate of service for the writ of restitution is filled out by Armando
Saldate on 5/1/2009, showing he served the defendant on 5/1/2009 at 9:45AM.
There is a handwritten note "vacate by 8 am Monday."
The certified records were placed into evidence, item#Z-352. Copy attached to report.
End of report .
... -.. ~ - - - - - - - - - - - - - - ------------------- ...
-----------
STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL
SPECIAL INVESTIGATIONS SECTION
REPORT
DATE WRITTEN BY AGENT: August 3, 2010 AGI/LF NUMBER: P002-2010-001298
Doc#914924
CASE NAME: Saldate
REPORT 1YPE: Reynolds Belinda contact
j\/
AGENT: Mike Edwards /'1'5 SUPERVISOR: Andy RubalcavaJ PAGE 1 OF 1 PAGE{S)
Name:
On 7/22/2010 about 1630 hours Belinda Reynolds called the Arizona Attorney General's
Office to get an update on her case. I spoke to her and notified her that I would be the
investigator on the case. She put me on the phone with Aurelio Cooper, a friend who
she said was her advocate in this matter. Mr. Cooper provided updated contact
information, and I gave him my phone number. r explained I was the investigator in the
case, but could provide no information beyond that. We then concluded the
conversation.
End of report.
../ ...
STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL
SPECIAL INVESTIGATIONS SECTION
REPORT
DATE WRITTEN BY AGENT: August 3, 2010 AGI/LF NUMBER: P002-2010-001298
Doc#914892
CASE NAME: Saldate
REPORT TYPE: Bracke Jim Sergeant Phoenix PD interview
AGENT: Mike Edwards )v SUPERVISOR: Andy Rubalcavak\f PAGE 1 OF 2 PAGE(S)
Name:
Name:
Bracke, James Sergeant
Phoenix Police Department
620 W Washington St 2"cJ Floor
Phoenix, AZ 85003 602 262 6591
Saldate, Armando
Encanto Justice Court Constable
620 W Jackson
Phoenix, AZ 85001 602 372 6300
On about 7/19/2010 I was assigned this investigation. The initial report carne into
Phoenix PD, which took a report, DR#2010-00916444. I was provided a copy of the
report.
On 7/20/10 I met with Sergeant James Bracke at the Phoenix Police Department. Sgt.
Bracke had spoken to victim Belinda Reynolds on several occasions. She became upset
because she did not believe action was being taken quickly enough on her report.
Belinda Reynolds filed a complaint against Sgt. Bracke with Professional Standards
Bureau of the Phoenix Police Department.
Detective Randy Farris from the robbery unit has also spoken to Belinda Reynolds.
Jeffrey Webbe from professional standards took the complaint. Sgt. Bracke said he
would make sure himself and the others completed reports on their contacts.
The original report was taken on 6/28/2010. The report came to investigations on
7/6/2010. Sgt. Bracke contacted Sgt. Overton of the Maricopa County Sheriffs Office
on 7/6/2010, to see if they would handle the investigation. On 7/14/2010 Captain
Kenneth Holmes [Tom MCSO called back and declined to handle the investigation.
---------
Repon to Saldate File
AGI P002-2010-001298
Bracke Jim Sergeant Phoenix PD interview
August 3, 2010
Page 2 of2
Sgt. Bracke said that since filing the original report, Belinda Reynolds has been in
contact with somebody from victim services, who advised Belinda Reynolds that if it was
a sex crime, she might be able to get money for rent and a free cell phone. Belinda
Reynolds was now interested in getting these, though she did not have that intent when
first reporting the incident. Sgt. Bracke stated that in his discussions with Belinda
Reynolds, she told him that she just wanted to notify the police so it did not happen to
anybody else, she did not desire prosecution.
In the initial report by Phoenix PD the victim's last name is misspelled. The correct
spelling is Reynolds. In the initial report by Phoenix PO the suspect's last name is
misspelled. The correct spelling is Saldate.
I asked if Sgt. Bracke could get the police report listed as restricted access, and Sgt.
Bracke said he would do that.
Sgt. Bracke said he had called Armando Saldate and said that a woman had filed a
complaint against him. Sgt. Bracke said he would call back to set up an interview, and
Armando Saldate said that was fine.
David Alster is an employee of the Justice Court. His phone number is 602 506 1843.
End of report.
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PHX-#914892-vl-10-1298_Bracke_Jim_Sergeant_Phoenix_PD_interview.DOC
STATE OF ARIZONA
OFFICE OF THE ATTORNEY GENERAL
SPECIAL INVESTIGATIONS SECTION
REPORT
DATE WRITTEN BY AGENT: August 3, 2010 AGI/LF NUMBER: P002-2010-001298
Doc#914906
CASE NAME: Saldate
REPORT TYPE: Alster David interview
)J;L-'
AGENT: Mike Edwardsf SUPERVISOR: Andy Rubalcava PAGE 1 OF 2 PAGE(S)
Name: Alster, David
Executive Assistant
Maricopa County Constable Department
301 W JefferesonSuite 6079
Phoenix, AZ 85003 602 506 1843 office
I phoned David Alster, who is the executive assistant for Mmicopa county Constables,
and then went to meet with him on 7/21/10 about 1100 hours. We spoke privately in
his office. He explained that the constables work independently because they are each
elected. The constables operate as part of the executive branch of Maricopa County
Government and are independent of the justice courts. David Alster's job is to take care
of administrative needs of the constables. There is a Constable Ethics Board that can
recommend action against constables, but that board has no investigative authority or
personnel. The Constable Ethics Board functions after a police agency has conducted an
investigation, similar to AZPOST functions for police officers. There is no central place
for people to file complaints against constables.
About 6/20/2010 Belinda Reynolds had contacted David Alster with her complaint. He
had trouble understanding her on the phone so he had her come down to his office to
put her complaint in writing. Upon arriving at his office, she had already filed out a
handwritten complaint. He gave me the original complaint. David Alster decided to
forward the complaint on to the Phoenix Police Department. He heard that Phoenix PD
had attempted to have the Sheriffs Office conduct the investigation, but they declined.
He said that when she made her complaint, she did not have proper pronunciation of the
name of the constable who came to her apartment, but it was close to Saldate. David
Alster went to the Encanto Justice Court at 620 W Jefferson St., and found the of
Armando Saldate. It shows that on 5/1/2009 he served 'Reynolds at
He provided me a copy of the log. The original remains with tl1e court .
.. -- -- - ------ ---- .
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Report to Saldate File
AGI P002-2010001298
Alster David interview
August 3, 2010
Page 2 of2
David Alster said that about 1 week ago Armando Saldate was involved in a serious auto
accident while off duty. His leg was crushed, and will be remain bedridden for the next
3 months. David Alster has heard that Constable Saldate will not run again and will
retire at the end of the year.
We then concluded our conversation and I left.
The handwritten complaint has been placed into evidence, item #1-352. A copy is
attached to this report.
End of report.
--------------------------------
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PHX-#914906-vl-10-1298_ Alster_David_interview.DOC
PHOENIX POLICE DEPARTMENT REPORT
ORIGINAL PAGE NUMBER: l DR NUMBER: 2010 00916444
REPORT DATE: 20100628 TIME: 2300
TYPE OF REPORT: THEFT BY EXTORTION OFFENSE: 211E
PROSECUTION DESIRED: YES
BOOKING VICTIM NOTIFIED: NO
LOCATION: BEAT: 0734 GRID: BI23A
DATE/TIME OF OCCURRENCE: THU 043009 1700
REPORTING OFFICER[S]: JOANNA COLLIER 7864 UNIT: 73G
PREMISES: APARTMENT OCCUPIED: YES
OFFENSE INVOLVED: BIAS - NONE{NO BIAS)
**** SUSPECT INFORMATION ****
SUSPECT-01:
NAME: SALAMTOS, ARMONDO
SPEAKING: ENGLISH
SUSPECTED OF USING: NOT APPLICABLE
RACE: H SEX: M AGE: 55-60 DOE:
HAIR: BRO EYES: BRO SSN:
WORK: 000620 W JACKSON STREET
PHOENIX AZ
HT: 508-510
APT/SUITE:
ZIP CODE:
WT: 180-200
BUS.NAME: ENCANTO JUSTICE OF PEACE
OCCUPATION: CONSTABLE
PHONE: (602)372-6300 EXT.
EMPLOYED:
LEVEL OF FORCE : NO CONTACT WITH PERSON
**** VICTIM INFORMATION ****
VICTIM -01:
NAME: REYNPOLD.S, BELINDA
SPEAKING: ENGLISH
RACE: B SEX: F AGE: 45 DOB:
HAIR: BRO EYES: BRO SSN:
VICTIM OF:
BRIBERY - COMPLETED
EXTORTION/BLACKMAIL - COMPLETED
EMOTIONAL CONDITIONS:COOPERATIVE
2010 00916444
- - - - - - - ~ - ..
----------------. ---- ----
T: 503 WT: 130
Continued.
PHOENIX POLICE DEPARTMENT REPORT
ORIGINAL PAGE NUMBER: 2 DR NUMBER: 2010 00916444
DR. L
HOME:
MORE PHONE:CELLULAR:
CAN ID SUSPECT(S): YE
WILL TESTIFY: YES
PRE INCIDENT CONTACT WITH SP-01: NONE
RELATIONSHIP TO SP-01: STRANGER
VICTIM REQUESTS NOTIFICATION
APT/SUITE:
ZIP CODE:
SUSPECT(S): SPl
MISC.
**** CRIME AGAINST PERSON M.O. ****
VICTIM: V-Ol M.O. FOR SUSPECT: SP-01
ACTIONS/CONDITION: ALONE
SUSPECT:
SOLICITED: SEX
INFLICTED/ACTIONS:
VAGINAL INTERCOURSE
**** NARRATIVE ****
SERIAL NUMBER: 7864
**********SYNOPSIS**********
ON OR AROUND 04-30-09 AT APPROXIMATELY 1700 HOURS
COMMITTED BRIBERY AND THEFT BY EXTORTION, WHEN HE
S P 1 ARfvlANDO SALAMTOS
SUGGESTED Vl BELINDA
REYNOLDS HAVE SEXUAL INTERCOURSE WITH HIM TO
OF HER APARTMENT AFTER SHE WAS EVICTED FROM
HI LOC HER OUT
**********NARRATIVE**********
ON 06-28-10 AT APPROX
CALL OF A SEXUAL ABUSE AT
UPON MY ARRIVAL I CONTACT
FOLLOWING.
*****INTERVIEW WITH BELINDA REYNOLDS*****
BELINDA WAS RENTING AN APARTMENT AT
SHE rmD BEEN PLANNING ON MOVING TO
GRANDCHILDREN WHILE HER SON AND DAUGHTER WERE ACTIVATED TO IRAQ. THEY
WERE IN THE MILITARY. BELINDA DECIDED TO STOP PAYING HER RENT BECAUSE SHE
THOUGHT SHE t">IAS GOING TO BE LEAVING THE STATE.
AFTER THE EVICTION PROCESS WAS COMPLETED, THE ACTIVATION FELL THROUGH AND
SHE WAS NO LONGER GOING TO MOVE TO NORTH CAROLINA. SHE WAS WAITING TO BE
2010 00916444 Continued.
____ , ____________ _
PHOENIX POLICE DEPARTMENT REPORT
ORIGINAL PAGE NUMBER: 3 DR NUMBER: 2010 00916444
LOCKED OUT BY THE CONSTABLE. BELINDA WAS FROM CALIFORNIA, WHERE IF YOU
ARE EVICTED YOU CAN MAKE A DEAL WITH THE CONSTABLE AND PAY TO STAY LONGER
IN THE APARTMENT.
WHEN THE CONSTABLE, LATER IDENTIFIED AS SPl ARMANDO SALAMTOS, ARRIVED AT
HER APARTMENT, SHE ASKED HIM IF THERE WAS A WAY TO GET MORE TIME AT HER
APARTMENT. SHE HAD TOLD ARMANDO HER ELDERLY AUNT WAS IN THE OTHER BEDROOM
AND HER SON WAS AT THE STORE. ARMANDO SAID TO BELINDA "THERE ARE OTHER
THINGS YOU CAN DO BESIDES GIVE MONEY." WHILE ARMANDO WAS SAYING THIS TO
BELINDA HE WAS STARING AT HER PRIVATE PARTS. I ASKED BELINDA WHAT SHE
MEANT BY PRIVATE PARTS AND SHE REPLIED "MY VAGINA."
BELINDA WAS CONFUSED BY ARMANDO'S COMMENT. SHE LOOKED AT HH1 FOR A MOMENT
AND SAID WITH A SOUND OF CONFUSION IN HER VOICE "DO YOU MEAN SOME PUSSY?"
ARMANDO GESTURED TO HER WITH A LOOK OF "YES OF COURSE." BELINDA LOOKED AT
ARMANDO FOR A MOMENT AS SHE THOUGHT ABOUT HIS OFFER.
BELINDA WALKED TO THE BEDROOM, SHE CLAIMED HER AUNT WAS IN, AND TOLD HER
SHE WAS GOING TO THE STORE AND WOULD BE BACK IN ABOUT 20 MINUTES. BELINDA
THEN SHUT THE BEDROOM DOOR. SHE WALKED TO HER BEDROOM, WHERE ARMANDO WAS
LYING ON HER BED WITH HIS PANTS AND UNDERvJEAR PULLED DOWN TO HIS ANKLES.
SHE HAD MADE THE DECISION SHE WOULD DO WHAT WAS NECESSARY TO STAY LONGER
IN HER APARTMENT, SO SHE HAD SEXUAL INTERCOURSE WITH ARMANDO. ARMANDO
KEPT HIS WORD AND DIDN'T LOCK HER OUT OF THE APARTMENT.
BELINDA STAYED IN THE APARTMENT FOR ANOTHER 1 MONTH AND 15 DAYS, B E F ~
HER OUT. SHE MOVED TO IIIII
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ l i ~ ~ ~ ~ ~ ~ ~ ~ ~ AFTER ABOUT A YEAR, BELINDA BEGAN
HAD DONE THAT FOR HER HE MAY HAVE DONE IT FOR OTHER
GOT WORRIED, ARMANDO MAY BE TAKING ADVANTAGE OF YOUNG GIRLS
WHO MAY NOT KNOW ANY BETTER. THIS MADE BELINDA CALL THE COURT AND SPEAK
TO ARMANDO'S SUPERVISOR.
BELINDA SPOKE WITH DAVID ALLISTER AT THE ENCANTO JUSTICE OF THE PEACE.
SHE TOLD HIM THE STORY. DAVID ATTEMPTED TO LOCATE THE EVICTION PAPERWORK
BUT WAS 'UNABLE TO FIND ANYTHING. BELINDA CALLED HE.R OLD APARTMENT COMPLEX
AND WAS ABLE TO GET THE COURT NUMBER FOR THE PAPERWORK vJHI CH WAS SERVED ON
HER. SHE WAS GIVEN COURT PAPERWORK CC-2009-234139.
SHE GAVE DAVID THE NUMBER AND HE WAS ABLE TO FIND THE PAPERWORK. HOWEVER,
IT HAD NEVER BEEN PROPERLY SERVED BY ARMANDO. DAVID TOLD BELINDA SHE
SHOULD CONTACT THE POLICE DEPARTMENT TO START AN INVESTIGATION.
BELINDA STATED SHE DID DESIRE PROSECUTION AND WOULD BE AVAILABLE TO
TEST!FY. SHE WAS PROVIDED A VICTIM RIGHTS PAMPHLET.
THERE IS NO FURTHER INFORMATION AT THIS TIME.
VICTIM RECEIVED RIGHTS INFORMATION: YES MAIL-IN SUPPLEMENT:
2010 00916444 Continued.
ORIGINAL
INVOICES:
DR ENTERED BY 7864
PHOENIX POLICE DEPARTMENT REPORT
PAGE NUMBER: 4
DR NUMBER: 2010 00916444
DR FINALIZED BY : 7864
END OF REPORT
DR NO: 2010 00916444
----------------------- --------------------
I
i Constable Armando Sal date
!
Encanto Justice Court Precinct
I :
'
lDate
5h
Vehicle Number- 51902 Daili Mileage
I
Type Court Case No. Plaintiff I Person Served Address of Service Return
1.
(2_
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14.
I
15.
I
16
17
I
18
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20
'
!
Law Offi.;es of Scott M. Clarl<, f>.C.
Scott Clark, Esq.(Bar No. 6759)
Paul Henderson, Esq.(Bar No. 22891)
Allyssa Bimley, Esq.(Bar No. 26201)
300!! N. 44th Street
Phoenix. Al 85018
Phone: (602) 957-7877
IN THE JUSTICE COURTS OF THE STATE OF ARIZONA
IN AND FOR THE ENCANTO PRECINCT
Fax: (602) 9577876 620 W. Jackson Street, Ste. 1045, Phoenix, Arizona 85003- (602) 3 72-6300
A llomeys lor Plaintiff
Consolidated Asset Mgmt, Inc.
727 E. Bethany Home Rd Suite C100
PhOeniX. 1\l. 85014
Phone: 602957 -4999 Fax: 602957 -5239
v.
Belinda Reynolds
Plaintiff,
Defendant(s)
Case No. cc2009234139
JUDGMENT
(FORCIBLE/SPECIAL DETAINER)
0 BY STIPULATION
THIS MATTER having come regulary tor !rial and the parties having presented their evidence, the Court, having considered the same
and being fully advised In the premises, finds as follows:
1. Plaintiff was represented by counsel.
2. Plaintiff served Defendant(s) with the Complaint, the Summons, the Notice. and the Residential Eviction Procedures
Information Sheet at least two (2) days prior to trial.
3. Oefendant(s) 0 appear In person and pled 0 guilty 0 not guilty to forcible/special detainer.
0 a pear through counsel and pled 0 guilty 0 not guilty to forcible/special detainer.
4. The Court find uilty of forcible/special detainer.
IT IS THEREFORE ORDERED, ADJUDGE:D, AND DECREED that judgment shall be entered in favor or Plaintiff and against
Defendant, <IS for.
A. Immediate possession of the above-described premises, with a Writ of Reslitulion to issued on 04/29/2009;
B. Rent in the sum of $602.00
C. Late Fees in the sum of
D. Concession Repayment in the sulll of
E. Utilities In the sum of
F. Transaction Fees in the sum of
G. Other in the sum of
H. Taxable (Court) Costs In the sum or
I. and Attorney Fees in the sum of
TOTAL JUDGMENT:
$9300
$0.00
s 0.00
$0.00
$0.00

$ 90.00 Jl
488St<IO o:f-D. 0 0
J. Plus interest at the rate of ten percent (1 0%) per annum until paid.
WARNING! Pursuant to A.R.S. 12-1178(0), a defendant who Is
laWfully served With a writ of restitution aml who remains In or
returns to the dwelling unit ( 331310). mobile home space (
33-1409), or recreatlon<JI vehicle space( 332102) without the
express permission of the owner of the property or the person with
lawful control of the property Is subject to arrest for criminal
..... _______________________________ _
SIGNED THIS DATE: 04/2312009
. OECLARA TION OF MAILING/DELIVERY:
STIPULATION TO JUDGMENT: Read carefully! By signing below. you
are consenting to tile terms of a judgment against you. You may be
evicted as a result of this judgment, the judgment may appear on your
credit report, and you may NOT stay at the rental property, even i! the
amount of the judgment is paid in full, without your landlord's express
consent. Additionally, you hereby and hereinafter waive all right to
demand trial, submit "motion for reconsideration, and/or lo file notice of
appeal.
Copy Jo Pla1nliff'
C O:Jy to Defendan\
0 Mailed 0 Delivered in Open Court
0 Maii!Xl 0 Delivered in Open Court
I AGREE: ____________________________________ __
I hereby certify that this document Is a true a d
correct copy of the original, entered and
the Encanto Justfce Court.
E
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4'9- Justice of the Peace
------ ----
Clerk q
Law Offices of Scott M. Clarl<, P.C.
Scott Clark, .Esq. (Bar No. 6759)
Paul Hentferson, Esq.(Bar No. 22891)
Allyssa Birnfey, Esq.(Bar No. 26201)
3008 N. 44 lh Street
Phoenix, flZ 85018
Phone: (602) 9fi7-7877
Fax: (602) 9577876
Attorneys for Plaintiff
IN THE JUSTICE COURTS OF THE STATE OF ARIZONA
IN AND FOR THE ENCANTO PRECINCT
620 W. Jackson Street. Ste. 1045, Phoenix, Arizona 85003- (602) 372-6300
,_.:)
Consondated Asset Mgmt., Inc.
727 E. Bethany Home Rd Suite C100
Phoenix, AZ 85014
cr ?-OOCf ?- V f f 3!1
Case No. v -u
:;:.?
Phone: 602-957-4999 Fax: 602-957-5239
v.
Plaintiff,
Belinda Reynolds
... a'"' a I .. I s
Defendant(s).
COMPLAINT
(EVICTION ACTIONS)
Trial Date!Time: 4/23/2009 9:00:00AM
-
r;?
YOU ARE HEREBY NOTIFIED THAT YOUR LANDLORD IS sytNG TO HAVE YOU EVICTED. READ THIS LEGAL PLEADING CARf!FULLY.
COMES NOW PLAINTIFF, by and through undersigned counsel, and for its Complaint against Defendant(s), alleges as follows:
1. This Court has jurisdiction to hear this matter and is the appropriate venue for the hearing of this matter.
2. A lease contract exists between the parties for the premises of
a. Pursuant to the contract, monthly rent of $612.00 is due and payable no later than the first day of the calendar month.
3. On 0410912009, Plaintiff made written demand upon Defendant(s)for return of possession of the above-described
that was served in the following manner: Personally Served .. A copy of this written demand is attached to this
Complaint and is hereby incorporated.
4. Plaintiff is authorized and entitled to file this action, and has done so, for the following rationale:
a. Non-payment of rent, a violation of A:R.S. 33-1368(8).
I. Defendant failed to pay rent as agreed in the contract. Rent has been unpaid since 04/01/2009. A prior balance of
$0.00 is also due and unpaid. Pursuant to the contract, an administrative charge of $0.00 is also assessed, for the
preparation and service of the above-referenced notice.
li. The contract contains provisions for the assesment of late payment penalties. These fees are calculated as a flat fee of
$25.00'plus a daily late fee, beginning on the 7 day of the month, of $4.00.
iii. In an action based solely upon non-paymenl of rent, reinstatement of lease and dismissal of this action is possible if,
prior to entry of judgment, payment is made of all rent, late fees, court costs, and attorneys' fees.
5. A:;, of the filing of this action, Defendant(s) owe the following sums to Plaintiff: Rent (including past-due balances and/or Credits)
of $602.00; Late Fees of $93.00; Rental Concessions of $0.00; Utilities of $0.00; Transaction Fees (Notice, NSF, etc.) of $0.00;
Other Damages of $0.00; Taxable Costs (filing fee plus estimated service costs) or $200.00: and Attorneys' Fees of $90.00. The
total amount sought as of the dale is $985.00.
WHEREFORE. Plaintiff demands {1] judgment for possession of the above-described premises; [2] a monetary award for the
amounts described above plus continuing late fees,continuing costs, continuing attorneys' fees, and continuing damages as of
5/1/2009 (as applicable); {3] a Writ of Restitution 5 days (s) frorn \he date of the judgment; and (4} such other and further relief as this
Court deems just and appropriate.
Pursuant to Rule 5(b)(B), R.P.E.A.. I verify that this complaint is true on the basis of a reasonably diligent inquiry.
Law Offices of Scott M. Clark, P.C.
Attorney far Plalnlilf
Reference # [537 B 09}
04/16/2009
Date
- -----" ... --- -------
... ....
4/9/2009
Consolidated Asset Management
727 E. Bethany Home Road, Suite ClOO
Phoenix, Arizona 85014
Phone 602-957-4999 Fax 602-957w5239
RE: Notice of Intent lo Tennlna!e (NonwPnymenr of Rent)
Dear Belinda,
PuniUant to Section 33-1368(8) Arizonn Revised StatuteS, we hereby written notice that you are delinquent in the
pnyment ofyour rent, late and othQr (if applicable) in the amount of$602.00, which wns due on the first day ofthe
month. When your rent is not paid by midnight of the fifth day of the motlth, there is a $25 late cbarge. An additional four
dollars day laic fee shallbe added for each day thereafter until paid in fulJ along with all accrued late charges. In the event
that the amount is not paid in full within five (5) days of receipt of this notice, you are rcquirc:d to vacate the premlses
.imniediately. .
In !he event that you fail to \"acate the premises r.fter termination of your and if this to vacatt;"J [s wil!ful and not
in good fulth, then, pursunnno Arizon11 Revised Statutes Section 331 362(C) and 1375(C), in addition to other re.Qledies,
may recover ITom you an amount equal to not more than two month's periodic rent or twice the actual
damages sustained by the management/owner, whichever is greater.
!fyou fail to comply with this notice. we shall pursue all availi!blc 1egal remedies to remove you from the premises nnd, as
provided by your rental agrcmncnt., we will look LO you for payment of all legal costs llJld attorney's fees theruby incum:d, if
any; tOgether with all accrued and accruing rent. and other charges.
Sincerely, .
CONSOLIDATED ASSET MANACEr.1E.NT
\


---------------------------------
... ''"'Ill""'\ C: ... 1 I,... I I .._ ... ,- ..- f' .., .... -, f'"\ ..... '9 ., ..... ,-I In-.
...., r- ' .. 1 I,., 11 1 " f' n n., fi 1 \1 .Ill
Law Offices of scctt M. Clarfl, P.c.
Paul Henderson, Esq.(Bar No. 22691)
Allys5ll 8fmley, Esq.(Sar No. 26201)
Scott Clarll. Esq.(Bar No. 6759)
3008 N. 44th Street
Phoenix, p.z 6501 B
Phone: (602) 957-7877
IN THE JUSTICE COURTS OF THE STATE OF ARIZONA
IN AND FOR THE ENCANTO PRECINCT
Fax: (602)957-7876
620 W. Jacl<son Street. Sie. 1045, Phoenix. Arizona 85003 (602) 372-6300
Attorneys for Plaintiff
Consolldated Asset Mgmt, Inc.
727 E. Bethany HoiT)e Rd Suite C100
Phoenix, p;z 65014 Case No.
Phone: 602-9574999 Fax: 602957-5239
v.
Plaintiff, SUMMONS
(EVICTION ACTIONS)
Belinda Reynolds
Defendant(s).
YOU ARE HEREBY NOTIFIED THAT YOUR LANDLORD IS SUING FOR EVICTION. READ THIS LEGAL PLEADING CAREFULLY.
THE STATE OF ARIZONA TO THE DEFENDANT(S) NAMED ABOVE.
1. YOU ARE COMMANDED ANO SUMMONED TO APPF:AR and answer the attached complaint In the above-captioned action in the
court named above. It is recommended that you appear no later than fifteen (15} minutes before the time and date scheduled
2.
3.
4.
5.
a. TRIAL DATE:
b. TRIAL TIME:
c. COURTROOM:
04/23/2009
9:00:00AM
400
You must appear at the date and lime shown above if you wish lo contest the allegations in the attached complaint. For additional
information. please review the Residential Eviction Procedures Information Sheet, a copy of which is being served with the
Summons and the Complaint.
IF YOU FAIL TO APPEAR, a judgment will most likely be entered against you, granting the relief specifically requested in the
complaint, including removing you from the rental premises.
If you do not agree with the allegations in the complaint. you should file a written answer admitting or denying some or all of the
allegations and pay the required answer tee. In cases of hardship, you may apply for a deferral or waiver of the filing fee, but be
aware that the court does not automatically grant deferraVwalver applications.
A trial may be held on the date set forth above or, upon a showing of good cause. it may be continued for up lo but no longer than
three days.
6
. Request for reasonable accommodation for per.sons with disabilities must be made to the Court at least three (3) Court days in
advance of a scheduled Court hearing.
7. [EN] The Court does not provide interpreters in dvil matters. If you require the assistance of an interpreter, you musl obtain his/her
services yourself. {ES) La Corte no proporciona a los interpretes en materias civiles. Si usted requiere Ia ayuda de un interprete,
usted debe obtener su servicios usted mismo. [FR] La Cour ne foumit pas des interpretes dan.s les sujets civil.s. Si vous avez
besoin de !'aide d'un lnterprete, vous devez obtenir son des services vous-meme.
8. The attorney for the Plaintiff must be provided a copy of your Answer. er pleadings you file in thi.s lawsuit. TIJ.e addres.s
for Plaintiffs attorney is set for1h in the top left corner of this Sum ons and the C plaint.
GIVEN UNO Seal of this Court
JUStiCe of th
' " ' ~ f. ~ -rt. I r> ~ . !
Date I
By
Clerk
Date _____ _
Time ____ _
Served By--------
Served To _____________ ___
Reference# {5378 09)
-
-----------
--------..
------
Law Offices of Scott M.Ciark. P.C.
Scott Clark (Bar No. 6759)
Paul Henderson {Bar No. 22891)
Allyssa Bimley {Bar No. 26201)
3008 N. 44th Street
Phoenix, AZ 85018
Phone: (602) 957-7877
Fax: (602)
Attorney for Plaintiff
Encanto
620 W. Jackson Street, S
Phoenix, AZ 85003
Phone : (602) 372-6300
Plaintiff:
CASE NO : cc2009234139
DEFENDANT:
Consolidated Asset Mgmt., Inc.
727 E. Bethany Home Rd Suite C 100
Phoenix, AZ 85014
Phone : 602-957-4999
Fax :602-957-5239
Writ of Restitution
Belinda Reynolds
THE STATE OF ARIZONA TO THE SHERIFF OR ANY CONSTABLE IN MARICOPA COUNTY:
On V't'''"''"vu'" Plaintiff obtained judgement against the Defendant(s} for restitution of t11e following premises:
THEREFORE, YOU ARE COMMANDED to remove the Defendant(s) any and aU occupants
_,)
-:::::;


from the premises listed above and to return possession of the premises to iaJntiff
::: SER1p
6
r;qRN OF THIS WRIT .... ...:
2
;..,---z-}:..... ----
CERTIFlCA TE OF SERVICE
Date Received: --'0""'_......4}....:1..____ Date Served:_<-5..;..-_,/'---'<r ____ _
Person Served: \ {J
Location Where Served: \:-) l (-:;) 1
e-..J"'.) Precinct, Maricopa County
I Certify that I personally-served this document as stated above.
Constable/Process Server
STATEMENT OF COSTS
Service Fee: -------
Milage Fee:
Other: -------
Total:
-------
WARNING: Pursuant to A.R.S. 12-1178(0). a defendant who is lawfully served with a writ of restitution and who
remains in or returns to the dwelling unit ( 33-1310), mobile home space ( 33-1409). or recreational vehicle space
( 33-2102) without the express permission of the owner of the property or the person with lawful control of the
property is subject to arrest for criminal trespass in the third degree ( 13-1502).
2
3
4
5
6
7
8
9
10
11
12
25
26
27
28
29
30
31
32
33
34
35
36
' .
CONSOLIDATED ASSET MANAGEMENT
Plainttf!{s), Represented Bv SCOTT CLARK
vs.
BELINDA REYNOLDS
Defendant(s), In Propria Persona
5378-09
CC2009234139
4/23/2009
t
&attJand
Thu. April 23
1
2009 at 9:00AM
I. Mark Ptaszynski, being qualified under ARCP, 4(d) and 4(e), to serve legal process within the State of
Arizona and having been so appointed by Maricopa County Superior Court, did receive on Apri/17, 2009 from
SCOTT CLARK, Attorney For The Plaintiff. the following Court issued documents:
Summons and Complaint, Evict/Qn Action; 5 Day Notice, attachment; Residential
Evlctlo, /nfonnatlon Sheet
On Friday. April 17, 2009 at 5:05PM. I personallY. served true copies o(these documents as follows:
After attempting service and finding no one home I posted a copy for each defendant of the above
document on the door and mailed one certified with a return receipt requested ta all of the
defendants listed ablave at the address of service shown below.
Certified receipt# is 70081830000156256734.
Documents Were Served At The
Place Of Residence Located at:
4- 144 - 101424
Fee For 1 serve(s): $16.00
Fee For. 7 miles: $14.00
Advanced Fees: $0.00
Other Fees: $0.00
Miscellaneous Fees: $2.00
Certified I Mail Fees: $0.00
Docwnent Prep Fees: $8.00
Total of Fees: $40R00
Acquisition Process Serving


fXI:Je(J(t/ea 0* tAM dat<fJ.
April 20, 2009
Mark Ptaszynsk/
1
Declarant
An Officer Of Maricopa County Superior Court
------------
Law Offices of Scott M. Clark, P.C.
Paul ESQ.( Bar No. 22891}
Allyssa Blmley, Esq.(Bar No. 26201)
Scott Clark, EsQ.(Bar No. 6759)
3008 N. 44th Street
Phoenix, AZ 85018
IN THE JUSTICE COURTS OF THE STATE: OF ARIZONA
IN AND FOR THE ENCANTO PRECINCT
Phone: {602) 957-7677
Fax: (602) 9577876
620 W. JaCkSon Street Ste. 1045, Phoenix, Arizona 85003 (502} 372-6300
Artomeys for Plaintiff
Consolidated Asset Mgmt, Inc.
727 E. Bethany Kame Rd Suite CtOO
Phoenix. 85014 Case No.
c C:LDO q d- 3L!-I3cr
Phone: 602-957-4999 Fax: 602957 5239
v.
Plaintiff, SUMMONS
(EVICTION ACTIONS)
Belinda Reynolds
.. A a"" .. A a
s
Defendant(s).
YOU ARE HEREBY NOTIFIED THAT YOUR !fi SUING FOR EVICTION. READ THIS LEGAL PLEADING CAREFULLY.
THE STATE OF ARIZONA TO THE DEFENDANT(S) NAMED ABOVE.
1. YOU ARE COMMANDED AND SUMMONED TO APPEAR and answer the attached complaint in the above-captioned action in the
court named above. It is recommended that you appear no later than fifteen (15) minutes before the time and date scheduled
2.
3.
4.
5.
6.
7.
8.
a. TRIAL DATE:
b. TRIAL TIME:
c. COURTROOM:
04/23/2009
9:00:00AM
400
You must appear at the date and time shown above if you wish to contest the allegations in the attached complaint. For additional
infonnaUon, please review the Residential Eviction Procedures Information Sheet, a copy of which is being served with the
Summons and the Complaint.
IF YOU FAIL TO APPEAR, a judgment 'Will most liKely be entered against you, granting the relief specifically requested in the
complaint, including removing you from the rental premises.
If you do not agree with the allegations in the complaint, you should file a written answer admitting or denying some or all of the
allegations and pay the required answer fee. In cases of hardship, you may apply for a deferral or waiver of the filing fee, but be
aware that the court does not automatically grant deferral/waiver applications.
A trial may be held on the date set for1h above or, upon a showing of good cause, it may be continued for up to but no longer than
three days.
Request for reasonable accommodation for persons with disabilities must be made to the Court at least three (3) Court days in
advance of a scheduled Court hearing.
[EN] The Court. does not provide interpreters In clvil matters. If you require the assistance of an interpreter, you must obtain his/her
services yourself. [ES] La Corte no proporciona a los interpretes en materias civiles. Si us led requlere Ia ayuda de un interprete,
usted debe obtener su servicios us led mismo. [FR] La Cour ne fournit pas des interpretes dans les sujets civlls. Si vous avez
besoin de !'aide d'un interprete, vous devez obtenir son des services vous-meme.
The attomey for the Plaintiff must be provided a copy of your Answer and all other pleadings you file in this lawsuit. The address
for Plainliff's attorney is set forth in the top left comer of this 'n.d the Complaint.
GIVEN :, . . n rtw;sjill of this Court
c.:. .. .
. . . . ' /.
Justice of the Peace T
y ,,.,,ocz
Date
By
Clerk
Date

I}
ServedBy __ __
4
] ____ __
ServedTo _____ ____________ __
Reference # (5378 09J
PROPERTY AND EVIDENCE CONTROL
ATTORNEY GENERAL
STATI:
L.F./CASE NO. P002-2010-001298
Doc#915046
SPECIAL INVESTIGATIONS SECTION
EVIDENCE RECEIVED FROM:
OWNERSHIP OF EVIDENCE:
LOCATION EVIDENCE RECEIVED:
Encanto Justice Court
State of Arizona
620 W Jackson
TIME: DATE: 7/22/2010
PROPERTY OBTAINED AS: EVIDENCE 0 OTHER 0
SPECIAL AGENT Mike Edwards
IF OBTAINED AS EVIDENCE, VOLUNTARY 0 or by COMPULSORY PROCESS 0
ITEM
1-352
2-352
1. SEARCH WARRANT 0 (Warrant No. Judge )
2. GRAND JURY SUBPOENA D (Copy Attached)
3. OTHER 0 (Copy Attached)
ITEMIZE AND DESCRIBE PROPERTY
DESCRIPTION
handwritten statement of Belinda Reynolds
certified court records of Reynolds eviction
IF PROPERTY IS STORED ANYWHEREO'f-HER THAN THE MAIN PROPERTY RO.OM, INDICATE BELOW:
FOR EVIDENCE CUSTODIAN USE ONLY
ID#352
RECEIVED FROM: _______ BADGE: __ DATE: ____ TIME: __ RECEIVED BY: _____ _
LOCATION OF EVIDENCE: SECTION __ SHELF __ BOX
___ = = ..
PAGE 10F
DRAWER __ WAREHOUSE _______ _
NUMBER:-----
----- --------------
EXHIBIT F
_.,............... .. - , .............. _,...,,_ ..... .. ..,......_... -- - -
IN THE. SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
Plaintiff,
vs.
DEBRA JEAN MILKE,
Defendant.
)
)
)
)
) CR 89-12631
)
)
)
)
_____________________________ )
APPEARANCES:
Phoenix, Arizona
June 30, 1990
TRANSCRIPT OF PROCEEDINGS
Interview Sandra Pickinpaugh
Mr. C. Kenneth Ray II
Attorney for the Defendant
Mr. Noel. Lgvy,
Deputy County Attorney
Mr. Armando Sal.date,
Examiner
COPPERSTATE REPORTING SERVICE, INC.
1836 E&at Thomas Road
Phoenix, Arizona 85016
(602) 266-2601
Naiar - Tran.scribQr

: ~ . ~
1
2
3
INTERVIEW OF SANDRA PICKINPAUGH
MR. SALDATE: The data is 6-30-90. The time is
4 12:07 about your time, right? And I'm Armando Saldate and
5 I'm a detective with the Phoenix Police Department. I met
6 you once.
7 MS. PICKINPAUGH: Right. (Inaudible)
2
8 MR. SALDATE: I mat you later on. Didn't you come
9 in with your mother (inaudible) .
10 MS. PICKINPAUGH: Right.
11 MR. &ALDATE: You met me and wanted to talk to me.
12 MS. PICKINPAUGH: (Inaudible) right after the
13 funeral.
14 MR. SALDATE: Yeah. How do you spell your last
15 nama, Sandra?
16 A P-i-c-k-i-n-p-a-u-g-h.
17
18
19
20
21
22
23
24
25
Q
A
Q
A
Q
A
Q
A
Q
P-a-u-g-h?
Uh-huh.
What is your data of birth?
8-9-66.
Your address is 755 --
Riverview Drive, Number 4.
And tha phone number hare is?
Area coda 307-075-9164.
Thank you. Ia there whare your husband works?
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I told her, Debby, I'm not going to tolerate that.
going to tolerai:e t-hat. I' m hera-- to get the truth.
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I'm not
That's
usually what I -- in my interviews that I do I'm just
there to gat tha truth. I'm not --
(Both talking at once.)
You know with Debby how I went in there and I
usually do this because I've been working homicide for a
long time.
between us.
I try not to even think of Chris. Chris is not
If you ware Debby, Chris is not between us. A
10 caae is between us (inaudible) and I went and found him.
11 So, I mean, I'm not -- I don't try to get amotional1y
12 involved in that point. So me and her talking and I'm
13 telling her I'm not going to tolerate that. She's not going
14 to do it. She -- draaa looked vary nice. Sha wraps the
15 of her blouse and aha it up to her eyes, she
16 didn't have :no to wipe her tears away but she didn't
17 have any.
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A (Inaudible)
Q Yeah. Which quickly exposed her (noise on tape,
couldn't gat what was said.) I dido' t really pay that much
attention to -- I knew, you see, my job, in my position I
knew what she was doinq to me. I knew what she --
-23 (inaudible). But sea, I'm there !or information, okay. And
24 she's like trying to see i! I--
25 A It's working.
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Q It's working. If he's looking at my breasts then
I may ba able to t-aTk myself out:- of this, Okay. so that's
what I'm telling you.
does. Sha loves that.
That's the type of manipulation sha
And I understand that. When you
tall me that I totally understand you.
A Tha thing is it's so natural with her. You know
you can pretty much tall (inaudible) baing honest with you.
Debby is vary hard to really judge b a c a u ~ a she's so good at
it and it comas to naturally for her. I don't know if it's
10 the blonde hair that people when they, you know, they look
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and say I'm coming up on a blonde, I got to make these kind
o! exceptions. You know, I don't know if it's that way or
she's just so natural about it that it's vary, very hard to
14 tall and I mean, I like to sit and observe people and
15 Debby's always just fascinated with me.
16 I used to just -- during high school I used to sit
17 back and admire this girl and think boy I'm so glad she's my
18 sister, you know, (inaudible) ,misunderstand.
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Q Guess she was doing it to you too?
A And than it kind of shakes me because -- I've
known her -- I've known the truth all my life about what
Debby did when I was a kid I was awed by it. When I got to
be a teenager I was jealous of it because I didn't possess
the same qualities. I wasn't on the wrestling teams
(inaudible). I wasn't real popular. I was a very
EXHIBITG
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Michael D. Kimerer, #002492
Lori L. Voepel, #015342
Kimerer & Derrick, P.C.
221 East Indianola Avenue
Phoenix, Arizona 85012
Telephone: . 602/229::-5900
Facsimile: 602/264-5566
Attorneys for Petitioner
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
10 DEBRA JEAN MILKE, No. CV-98-0060-PHX-RCB
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Petitioner,
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v.
13 AFFIDAVIT
TERRY STEWART, et al.,
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Respondent.
My name is Anders Rosenquist. I am over the age of
eighteen years and have personal knowledge, which forms the
>bs$iS for this affidavit. I have never been convicted of a
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felony and am competent to make this affidavit. If I were
22 called to testify, under the penalty of perjury, I would
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- ~ - - - - - - - - - - - - 1
testify to the following:
1. I formerly represented the Petitioner, Debra Milke,
in post-conviction proceedings, both before Maricopa
County Superior Court and this Court.
2. In the course of my representation, I spoke with
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Debra's sister, Sandra Pickenpaugh, by telephone on
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----- -----1
3.
4.
5.
6.
October 19, 1995, after her mother, Renate, informed
me that Sandra had no objection to me calling her.
During our conversation, Sandra revealed that
Detective Saldate had made numerous misleading
corrunents to her in an apparent attempt to persuade
her to testify unfavorably against her sister, Debra.
She stated that she was in her seventh month of
pregnancy with her second child, when Armando Saldate
and another investigator telephoned her repeatedly.
They were upset because Sandra kept postponing the
interview. She said that in her condition, she did
not want to really bother with the ordeal. She said
that Detective Saldate was frustrated and kept
hounding her for a due date for the birth of her
baby.
Sandra stated that in her final phone conversation
with Detective Saldate, he informed her that he had
reservations and would be coming up the next day.
When she told him it would not be convenient, he
said, "Well, either you do it now or you get
subpoenaed and you just have to deliver your baby
early."
She said that Detective Saldate told her that he
needed her to provide character evidence against
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7.
Debra, because she knew Debra better than their
parents did. She said that she and Debra were never
close, but did know what was going on with each
other.
Sandra stated that Detective Saldate told her that
Debra worried him because Debra had (what Saldate
told her in Spanish meant) a split personality_
8. Sandra also told me that before she was interviewed
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by Saldate, she believes he misled her regarding the
evidence the State had against
that Debra had confessed. He
Debra. He told her
told her that Debra
began confessing to him when she was in the car on
her way to the Pinal County Sheriff's Office from her
father's house. He then said Debra told hi_m that she
felt much better because she had been hiding the
secret for a long time.
Sandra also said that Saldate told her that Debra had
tried to kill Chris twice before, once when their
mother and Alex were there. She said that Saldate
claimed that once, Debra had put cyanide in Chris'
cereal. Another time, he said, they actually went
out to the site to do it, but there was too much
traffic.
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10. Sandra said that Saldate also told her that, en route
from Florence to Phoenix, Debra wanted to exchange a
sexual favor in return for her freedom. He told
Sandra that Debra offered to be sterilized as a form
of punishment. Detective Saldate also claimed that
when Debra was in county jail, the other inmates were
harassing her and she told them, "Yes, I did it, and
I'd do it again."
11. Sandra said that in the course of their interview,
Detective Saldate seemed to be more interested in
Debra's sexual practices with men than in her
abilities as a mother. Many of the questions he
asked her at her home had, in her opinion, nothing to
do with Debra's case. She said he was like some guy
interested in her sister asking her what Debra likes
to do on dates. She said that struck her as very
odd.
12. Sandra said that when she received the subpoena to
testify, she took it to her obstetrician who arranged
to induce her labor at least one week before she had
to testify so her child would have a week before
having to travel. They scheduled the delivery for
August 14, 1990, specifically because of the trial.
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13. Sandra said that her son was very colicky during the
trip to Phoenix, and that she got little sleep. She
had to be in court early. She was extremely tired
and anxious to get back to Wyoming.
14. Sandra said that the victim witness advocates who
w o ~ k e d for the prosecutor, Noel Levy, told her how to
testify. She said that in the back room before trial
started everyday, they told her new things to do.
They told her not to hesitate for one minute, just
answer the questions and try to elaborate as much as
she could. They told her how to sit, how to look,
where to look, when to put her emphasis on sympathy
and when to emphasize her anger.
felt like a "puppet."
She to.ld me she
15. Sandra said that Saldate told her that the questions
he asked her prior to trial would be the ones asked
of her at trial. She said Noel Levy also told her
she would be asked the same questions as Saldate had
asked her. She said that the questions Mr. Levy
asked her at trial were not, in fact, the same. She
said there were some similarities, but she was not
allowed to elaborate on her answers.
16. At the end of my conversation with Sandra, I said
that I would send her an affidavit containing the
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17.
18.
19.
information discussed in our conversation for her
review and signature. She had no objection to my
request. I immediately drafted and mailed an
affidavit to her the next day, on October 20, 1995.
Rather than receiving Sandra's signed, notarized
affidavit, I received a letter from Assistant
Attorney General, Randall Howe, saying that Sandra
had written to their office informing them of my
contact with her and claiming that my contact with
her was "unwelcome harassment." (See Attachment 1).
Mr. Howe's letter shocked me because Sandra was very
cooperative and pleasant during our telephone
conversation the previous week. She never indicated
that she considered my contact to be harassment, and
her conversation with me indicated just the contrary.
Additionally, Sandra had cooperated previously by
flying to Las Vegas in 1993 (at her mother's expense)
to ask Dorothy Markwell if she would be willing to
speak with me regarding Debra's case.
Nevertheless, after receiving Sandra's letter, Mr.
Howe strongly requested that we refrain from further
contact with Sandra. He claimed that Sandra had been
designated a victim in this case, just like
Christopher's father, Mark Milke, and that all
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victim's rights applied to her, pursuant to Article
2, Section 2.1 of the Arizona Constitution.
20. Mr. Howe's warning struck me as very odd, as Sandra
was not a member of Christopher's immediate family.
21.
She was his Aunt and my client's sister. I also
thought it was unusual for the State to claim that
Sandra is a designated victim despite the fact that
she apparently did not have a right to refuse a
pretrial interview by defense counsel, and the fact
that Sandra and Debra have corresponded by mail
without any victim's rights issues being raised.
was also surprised, as no other members
Christopher's extended family (including
grandparents) were listed as victims_
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of
his
I felt that the State was trying to use the victim's
rights provisions to block our access to a mere
witness, despite the fact that Sandra had willingly
spoken to me at length the preceding week by
telephone. However, due to Sandra's apparent change
of heart since I had spoken with her by phone,
together with the Assistant Attorney General's stern
warning, we did not attempt to re-contact Sandra to
obtain a signed, notarized affidavit.
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22. Several years later, in 1998, we again received
indications that Sandra might be willing to cooperate
with our defense team. My investigator, Kirk fowler,
contacted and met with Sandra for an extensive
interview, in which he said she was very helpful and
willing to cooperate. Shortly thereafter, however, I
received a second letter from Mr. Howe, demanding
that our defense team refrain from all further
communication with Sandra. {See Attachment 2) . Mr.
Howe again cited victim's rights provisions, claiming
that Sandra is a designated victim in Debra's case.
He threatened to seek a protective order against me
if we attempted any further contact with Sandra.
{Id.).
23. I still felt that the State's designation of Sandra
as a victim was improper, and I was concerned about
how Sandra had once again shifted her position back
and forth regarding her experiences with Debra and
with Debra's case. Nevertheless, I was hesitant to
re-contact Sandra in light of the threats by the
Assistant Attorney General.
AFFIANT FURTHER SAYETH NAUGHT.
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00371
1 STATE OF HAWAII
2 County of .\-WnOIUIU
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ss.
4 SUBSCRIBED AND SWORN to before this I I ~ day o f ~
' 2002.
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---
Notary Public
My Commission Expires:
Cl[o!?{oG
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9 00372