Debra Jean Milke is free after spending 22 years on death row

Friday, December 12, 2014

Good evening:

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the 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 his partner, Detective Bob Mills, worked on Scott. Shortly before 1 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….”

Saldate 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 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 Saldate’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.”

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

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. 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.

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

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

Comments on Torture

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

– right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.

David McCallum is free at last after serving 29 years for a murder he did not commit

Wednesday, October 15, 2014

Good afternoon:

David McCallum is free at last after serving 29 years for a murder he did not commit. He and Willie Stuckey were wrongfully convicted in 1984 for the kidnapping and murder of 20-year-old Nathan Blenner and sentenced to 25 years to life. Unfortunately, Stuckey will not taste freedom. He died in 2001.

Their wrongful convictions resulted from false confessions. They were 16-years-old when they were arrested and interrogated by police.

The New York Daily News has the story.

Brooklyn’s top lawman announced Wednesday he will throw out the 1985 convictions against two men, slamming his predecessor for leaving a mess of injustice.

“I inherited a legacy of disgrace with respect to wrongful convictions,” District Attorney Kenneth Thompson said when making it official that David McCallum, 45, will be freed after 29 years and the name of codefendant Willie Stuckey, who died in 2001, will be cleared.

As the Daily News first reported, McCallum’s release came after an advocacy drive, including an open letter by famed boxer Rubin (Hurricane) Carter that was published weeks before he died last April.

Carter, who served 19 years in a New Jersey prison for a triple murder he didn’t commit, became involved with innocence advocacy after his release.

Thompson said there “is not a single piece of evidence” that connected the two 16-year-old suspects to the crime — except for their brief confessions, which prosecutors have now concluded were false.

During their interrogations, police provided information to McCallum and Stuckey about the kidnapping and murder eventually ‘persuading’ them to agree that they committed the crime.

When the crimes were reinvestigated by Thompson’s office, they discovered that DNA evidence in the victim’s vehicle matched other men and “a witness who claimed he supplied Stuckey the gun through his aunt was lying, with the aunt contradicting his account.”

NYC settles wrongful conviction claim for $6.4 million

Friday, February 21, 2014

Good morning:

Frances Robles of The New York Times reported yesterday that New York City has settled a wrongful conviction claim for $6.4 million by David Ranta, an innocent man who was framed for a murder by a rogue Brooklyn detective named Louis Scarcella. Ranta served 23 years in prison and suffered a heart attack the day after he was released from prison. Fortunately, he survived the heart attack.

The crime occurred in 1990. The victim was Chaskell Werzberger, a Hassidic rabbi and Holocaust survivor who was shot in the head as he got into his car by a person who had robbed a jewelry store across the street. The robber stole his car and used it as a getaway vehicle.

The unsolved murder upset the Orthodox Jewish community that had overwhelmingly voted for the newly elected District Attorney, Charles J. Hynes. He felt pressured to solve the crime and convict the perpetrator.

Ranta was convicted by eyewitness testimony and a confession that he denied making.

Many years after the conviction, one eyewitness admitted that Detective Scarcella told him which photograph to select in a photo spread. Two other witnesses subsequently admitted they had lied in exchange for leniency in matters pending against them.

A reinvestigation of the case by the Conviction Integrity Unit of the D.A.’s office resulted in the discovery that Detective Scarcella had investigated a suspect named Joseph Astin, who was identified as the killer by an anonymous caller. However, he stopped investigating Astin after Astin died in a traffic accident and he did not submit any paperwork documenting his efforts.

Astin’s widow later claimed that Astin had committed the murder, but efforts to free Ranta were unsuccessful.

Ranta’s wrongful conviction is not the only case in which now retired Detective Scarcella used false confessions and coached witnesses to lie in order to obtain a conviction.

Kenneth P. Thompson, the new Brooklyn District Attorney who defeated Charles J. Hines last November in a landslide election due in no small part to citizen outrage about the way he mishandled wrongful-conviction complaints about Scarcella, has convened a three-person panel to review dozens of his cases.

Ranta is still planning to sue the State of New York.

Over Easy: Do you know anything about Morgellons?

Wednesday, November 13, 2013

Good afternoon:

Ryan Ferguson is a free man today. He walked out of a Missouri penitentiary this morning after the Missouri Attorney General’s Office decided not to retry him for the murder of Ken Heitholt. He served 10 years of a 40-year sentence. The only evidence that linked him to the murder was the testimony of an eyewitness who said he saw Ferguson around 2 am standing in a parking lot near the location where the victim’s body was found and the testimony of his codefendant who pled guilty to the murder after providing police with a false confession to the murder. Both witnesses recanted their testimony after Ferguson was convicted and sentenced to prison.

I wrote about the circumstances of this wrongful conviction of an innocent man and the decision by the Missouri Court of Appeals reversing his conviction and sentence on the ground that the prosecution withheld material exculpatory evidence from the defense, which is a violation of the Brady rule.

I write today to encourage discussion and to solicit ideas regarding a vexing problem that Crane and I have been dealing with for the past week. During a routine house cleaning session, she discovered several fungus-like growths on kitchen counters and cabinets. When she first saw them, she thought they were bread crumbs or spilled food. However, they seemed to be attached to the surface and had to be pried loose. She got a closer look, saw black and white hair-like fibers and whitish larvae and thought she was dealing with some type of insect. I disagreed and told her that I thought it was a fungus.

After that discovery, we began noticing similar clumps all over the apartment, as if they had spontaneously sprouted into existence in the blink of an eye.

Then they began to appear as lesions on her hands, arms and face. During the past 48 hours, they have spread into her mouth and nose. This alarming development is the reason why you have not seen an article from either of us for the past several days.

We have not been able to determine what caused the lesions and we are asking for your assistance in identifying it.

Anti-fungal ointment keeps the outbreak from spreading and reduces the size of each infected site, but the stuff spreads quickly and appears to tunnel into the skin.

No, this is not a joke.

We’ve never heard of this thing, so we’ve spent a lot of time on the internet attempting to identify it. With the exception of it spreading to object, the symptoms are similar to Morgellons.

However, the CDC published a paper last year reporting the results of an extensive multi-year study of Morgellons and they concluded that it’s a delusional parasitosis. In other words, it’s an imagined condition.

That’s not helpful and it isn’t going to heal the open sores on her skin.

Have any of you heard about the raging controversy regarding Morgellons or have any experience with it?

We are searching for clues.

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This worrisome development is not helping our financial situation. We really do need your assistance.

Fred

Missouri Court of Appeals reverses murder conviction for withholding exculpatory evidence from the defense

Tuesday, November 5, 2013

Good afternoon:

Big news out of Missouri this morning: The Missouri Court of Appeals reversed Ryan Ferguson’s conviction for the 2001 murder of sports editor Kent Heitholt of the Columbia Daily Tribune in Columbia, MO.

Basis for the ruling: Prosecutorial misconduct for withholding material exculpatory evidence from the defense.

48 Hours covered this case.

Kent Heitholt, the sports editor for the Columbia Daily Tribune, was beaten and strangled to death with his belt in a parking lot outside the building where he worked. Two janitors discovered his body and called the police. They told the police that they first noticed two men in their twenties standing next to Heitholt’s car and then saw Heitholt’s body on the ground nearby. Neither of them were able to provide police with a detailed description of either of the two men.

One witness worked with a sketch artist, however, who eventually produced some sketches of the two suspects.

Ryan Ferguson and his friend Chuck Erickson were drinking in a nearby bar. Ferguson was the driver and late that night he dropped Erickson off at Erickson’s house and then he drove home and went to bed

When Erickson got up the next day, he could not remember much about the events of the previous evening. After reading about Heitholt’s murder, he began to wonder if maybe he might have been one of the two young men reportedly seen by the two janitors.

Several years later after looking at the sketches in the news, he really began to worry about whether he might have been involved and he expressed his concern to several friends, including Ferguson.

Ferguson laughed at him and assured him that he had an intact memory of that evening and they had nothing to do with Heitholt’s death.

One of Erickson’s friends called the police and they decided to subject him to a custodial interrogation. Unfortunately, nothing he said matched any of the evidence at the crime scene, but instead of letting him go, they began to provide him with snippets of information that only the killers would know. In this way, they eventually succeeded in getting him to sign a confession. He named his friend Ryan Ferguson as his accomplice.

Ferguson denied committing the crime and police did not find any evidence at the crime scene implicating either of them.

Erickson ended up pleading guilty and testified against Ferguson in exchange for a reduced sentence.

The other janitor, who did not participate in the sketch effort because he told police that he could not recall anything about the two young men in the parking lot, suddenly contacted the prosecutor just before trial and announced that he had recovered his memory and could positively identify Erickson and Ferguson as the two young men he saw.

When asked to explain the miraculous recovery, which happened when he was in prison serving a sentence on an unrelated matter, he said his wife sent him a package wrapped in newspaper. As luck would have it, a photograph of Erickson just happened to be the first thing he saw when he glanced at the newspaper. Voila! He instantly recognized Erickson and then Ferguson.

The jury found Ferguson guilty.

The janitor and Erickson subsequently recanted their trial testimony.

The newspaper-jogged-my-memory was a false story and, not surprisingly, the wife had no recollection of sending it to him.

The defense subsequently discovered that the prosecutor who tried the case had interviewed the janitor in prison just before the janitor contacted police and told them about the miraculous recovery of his memory.

The prosecutor did not take any notes and did not inform the defense about that meeting. He also did not disclose to the defense that the janitor’s wife did not recall sending a newspaper to her husband.

The prosecution did not and that the prosecutor had met with the janitor just before he recovered his memory.

The Court of Appeals was not the least bit amused, noting that the only evidence implicating Ferguson was two in-court identifications of extremely suspicious provenance that had subsequently been recanted.

The Court of Appeals held:

We conclude that Ferguson has established the gateway of cause and prejudice,
permitting review of his procedurally defaulted claim that the State violated Brady v.
Maryland, 373 U.S. 83 (1963) by withholding material, favorable evidence of an
interview with Barbara Trump, the wife of Jerry Trump, one of the State’s key witnesses
at trial. The undisclosed evidence was favorable because it impeached Jerry Trump’s
explanation for his ability to identify Ferguson. The undisclosed evidence was material
because of the importance of Jerry Trump’s eyewitness identification to the State’s ability
to convict Ferguson, because the evidence would have permitted Ferguson to discover
other evidence that could have impacted the admissibility or the credibility of Jerry
Trump’s testimony, and because of the cumulative effect of the nondisclosure when
considered with other information the State did not disclose. The undisclosed evidence
renders Ferguson’s verdict not worthy of confidence.

The prosecutor who manufactured the case against Ferguson and withheld material exculpatory evidence from his attorney is now a Boone County Circuit Court judge.

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We have reached that time of the month when we ask our readers to consider making a donation. We cannot maintain this blog without your assistance.

Thank you,

Fred

False Confessions II: The Phoenix Buddhist Temple Massacre (UPDATED)

On August 10, 1991, nine bodies were discovered at the Wat Promkunaram Buddhist Temple in the West Valley near Tucson Phoenix, AZ. The nine victims were six Buddhist monks, a nun and two acolytes.

William Hermann of The Arizona Republic described the scene.

Investigators found nine victims lying face down and grouped together, their heads pointing inward like spokes in a wheel. Some had their hands clasped in prayer. The carpet was bloody from head wounds made by .22-caliber bullets and shotgun blasts to torsos, arms and legs.

Maricopa County Sheriff’s detectives spent six days processing the crime scene. They made numerous diagrams, collected all of the shell casings, tore down walls, and removed all of the carpeting. However, despite all of their efforts they did not identify any promising suspects until a month later when they received a phone call from a patient in a mental hospital named Mike McGraw. He told them that some of his friends had committed the murders.

After the phone call, the police picked up McGraw and four of his friends: Mark Nunez (age 19), Dante Parker (age 20), Leo Bruce (age 28), and Victor Zarate (age 28). Over the course of three days of grueling nonstop interrogations from 9 pm to dawn, they eventually obtained confessions from four of the five suspects by refusing to take “no” for an answer and, after breaking them down, they committed the additional sin of providing them with some details of the crime that only the killers would know so that their confessions would be self-authenticating. Only Mark Nunez Victor Zarate failed to succumb to their tactics, so they released him and then they held a big press conference where they triumphantly announced that they had solved the murders.

Six weeks later their case against the Tucson Four, who had subsequently recanted their confessions, fell apart when the crime lab announced that it had identified the murder weapon.

How did that happen, you ask?

On August 21st police had confiscated a .22 caliber rifle from two West Valley boys, Rolando Caratachea and Johnathan Doody, after stopping them at Luke Air Force Base. When the crime lab finally got around to testing the rifle, the analyst discovered that that it was the murder weapon.

The next day, detectives picked up Caratachea (the owner of the gun), Doody and a third boy, Alessandro Garcia, and subjected them to the same non-stop interrogation tactics. Two days later, Garcia confessed that he and Doody did the shootings. Doody admitted that he was present but denied shooting anyone. Caratachea denied being involved.

Three weeks later, Garcia confessed to another murder. Katharine Ramsland reports he told the police that two months after the temple massacre,

he and his 14-year-old girlfriend, Michelle Hoover, had murdered Alice Cameron, 50, in a campground. Garcia had goaded Michelle to do it, so she had pulled the trigger. They waited an hour to be sure the woman was dead and then stole her money, which amounted to $20. Michelle pleaded guilty and got 15 years.

As in the case of the Tucson Four, police had coerced an innocent man into falsely confessing to killing Hoover. He was released after serving more than a year in prison.

One month later the prosecution dismissed the charges against the Tucson Four and released them from jail.

Garcia and Doody, who were juveniles, were charged with the murders. Their cases were transferred to adult court due to the seriousness of the charges and the prosecution announced that it would seek the death penalty against both defendants.

Garcia eventually entered into a plea agreement in which he agreed to plead guilty to first degree murder and testify against Doody in exchange for the prosecution agreeing not to seek the death penalty against him.

Doody was convicted. The judge declined to impose the death penalty because he was not certain whether Doody was more culpable than Garcia. He sentenced him to 281 years in prison. Garcia was sentenced to 271 years in prison.

In May, 2011, the Ninth Circuit Court of Appeals reversed Doody’s conviction on the ground that his confession was coerced. The Court remanded the case to the trial court for a new trial. The SCOTUS denied review.

His case has not been resolved.

The Tucson Four sued Maricopa County and the case settled for $2.8 million.

The man who falsely confessed to the Hoover murder also received a settlement.

Those of you who are interested in reading more about false confessions, please google the name Dr. Richard Ofshe or go to falseconfessions.org

UPDATE: I have edited the article to make the following corrections: The temple is located in the West Valley, near Phoenix. Victor Zarate, rather than Mark Nunez, refused to confess and was released.