Milke v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEBRA JEAN MILKE , No. 07-99001

Petitioner-Appellant,

D.C. No.

v. CV-98-00060-

PHX-RCB

CHARLES L. RYAN ,*

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Robert C. Broomfield, Senior District Judge, Presiding

Argued and Submitted

November 3, 2010—San Francisco, California

Filed March 14, 2013

Before: Alex Kozinski, Chief Judge, Jerome Farris

and Carlos T. Bea, Circuit Judges.

Opinion by Chief Judge Kozinski;

Concurrence by Chief Judge Kozinski

*

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).

2 MILKE V . RYAN

SUMMARY**

Habeas Corpus/Death Penalty

The panel reversed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a

conviction and capital sentence for murder, conspiracy to

commit murder, child abuse and the kidnapping of her young

son.

Petitioner Milke’s conviction was based largely on the

testimony of Police Detective Saldate, who allegedly obtained

her confession. The panel held that the state remained

unconstitutionally silent instead of disclosing information

about Det. Saldate’s history of misconduct and accompanying

court orders and disciplinary action. The panel held that the

state court’s failure to comply with Brady v. Maryland,

373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972), resulted in a decision by the state post-conviction

court that was contrary to clearly established Supreme Court

law, and that the state post-conviction court so misread the

evidence documenting the state’s Brady violations that its

decision was based on an unreasonable determination of the

facts. As a result of these two failings, the panel could not

accord deference to the state court’s decision under the Anti-

Terrorism and Effective Death Penalty Act.

Reviewing the Brady claim on the merits, the panel first

held that evidence in Det. Saldate’s personnel file,

documenting the detective’s lack of compunction about lying

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MILKE V . RYAN 3

during the course of his official activities, was favorable to

Milke’s defense and likely would have affected the sentence.

The panel next held that state knew of the evidence in the

personnel file and had an obligation to produce the

documents, and that there is a reasonable probability that

disclosure of the evidence would have led to a different

result.

The panel remanded with instructions that the district

court grant a conditional writ of habeas corpus setting aside

the conviction and sentence. The panel also ordered the

district court to order the state to provide Milke’s counsel

with Det. Saldate’s police personnel records covering all of

his years of service. The panel further ordered that, after the

state has turned over the records, it shall provide a statement

under oath certifying that all records have been disclosed and

none have been omitted, lost or destroyed, otherwise the

district court shall hold an evidentiary hearing to determine

whether and why any records have not been produced.

Afterwards, the district court shall order Milke released

unless the state decides to retry her. The panel retained

jurisdiction over any appeal arising from this remand.

Finally, the panel ordered the clerk of this court to send

copies of this opinion to the U.S. Attorney for the District of

Arizona and to the Assistant U.S. Attorney General of the

Civil Rights Division, for possible investigation into whether

Det. Saldate’s conduct, and that of his supervisors and other

state and local officials, amounts to a pattern of violating the

federally protected rights of Arizona residents.

Chief Judge Kozinski concurred to comment on this

“troubling case.” He would reverse the district court’s

finding that Milke knowingly waived her Miranda rights

4 MILKE V . RYAN

because any confession was extracted illegally. He would set

aside the 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.

COUNSEL

Lori L. Voepel (argued), Jones, Skelton & Hochuli, P.L.C.,

Phoenix, Arizona; Michael D. Kimerer, Kimerer & Derrick,

P.C., Phoenix, Arizona, 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, Arizona, for Respondents-Appellees.

OPINION

KOZINSKI, Chief Judge:

In 1990, a jury convicted Debra Milke of murdering her

four-year-old son, Christopher. The judge sentenced her to

death. The trial was, essentially, a swearing contest between

Milke and Phoenix Police Detective Armando Saldate, Jr.

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 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.

MILKE V . RYAN 5

Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United

States, 405 U.S. 150, 153–55 (1972). Some of the

misconduct wasn’t disclosed until the case came to federal

court and, even today, some evidence relevant to Saldate’s

credibility hasn’t been produced, perhaps because it’s been

destroyed. In the balance hangs the life of Milke, who 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 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

6 MILKE V . RYAN

“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.1 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 . . . .”

1

Scott’s alleged statement was excluded as hearsay at Milke’s trial.

Neither Scott nor Styers would testify against Milke.

MILKE V . RYAN 7

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.”

8 MILKE V . RYAN

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. Saldate 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

Saldate’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.

MILKE V . RYAN 9

* * *

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 v. Bagley,

473 U.S. 667, 674–75 (1985); Giglio, 405 U.S. at 153–55;

Brady, 373 U.S. at 87. 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. 24–25 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

10 MILKE V . RYAN

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.

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 law, as determined by the Supreme Court

of the United States,” 28 U.S.C. § 2254(d)(1); 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, 131

S. Ct. 770, 784 (2011), 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, Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.

2002) (internal quotation marks omitted); Shackleford v.

Hubbard, 234 F.3d 1072, 1077 (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 law as announced by the Supreme

Court. 28 U.S.C. § 2254(d)(1). Further, the state post-

conviction court so misread the evidence before it

documenting the state’s Brady violations that its decision was

MILKE V . RYAN 11

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. The law requires the prosecution to produce Brady and

Giglio material whether or not the defendant requests any

such evidence. Strickler v. Greene, 527 U.S. 263, 280

(1999); United States v. Agurs, 427 U.S. 97, 107 (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 law, “the right of confrontation and cross-

2

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.

12 MILKE V . RYAN

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 denied her

constitutional right to cross-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

MILKE V . RYAN 13

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, 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 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 (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

(referring to the “sort of egregious misconduct held in . . .

Brady to amount to a denial of constitutional due process”).

14 MILKE V . RYAN

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] ability to fully and fairly assess the

credibility of both [Milke] and Saldate.” The Arizona

Supreme Court summarily denied the petition.

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 (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 turn over exculpatory evidence to the

defense. See Brady, 373 U.S. at 87; see also Bagley, 473 U.S.

at 674–78. This doctrine applies to impeachment evidence as

well. Giglio, 405 U.S. at 154–55; see also Bagley, 473 U.S.

at 676. In Giglio, the prosecution’s case “depended almost

entirely” on the testimony of an unindicted co-conspirator.

Giglio, 405 U.S. at 151, 154. Without his testimony, “there

could have been no indictment and no evidence to carry the

MILKE V . RYAN 15

case to the jury.” Id. at 154. 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. Id. at

151–52. According to the Supreme Court, “the jury was

entitled to know” about the offer in considering the

testimony. Id. at 155. The prosecution’s failure to disclose

its offer of immunity violated the defendant’s due process

right to a fair trial. Id. The Court reversed the conviction and

remanded for a new trial. Id.

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 turn 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 Saldate’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 pp. 28–29 infra. The state

didn’t turn 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,

16 MILKE V . RYAN

437–38 (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’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

MILKE V . RYAN 17

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—the state court focused on

the discoverability of the evidence 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 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, 1001 (9th

Cir. 2004).

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

18 MILKE V . RYAN

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-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. 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

MILKE V . RYAN 19

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.” Id. The state court’s

finding thus amounted to an unreasonable determination of

the facts under section 2254(d)(2).3

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.” Id. at 1001. In short,

we can’t accord AEDPA deference when the state court “has

3

W e 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, 131

S. Ct. 1388, 1398 (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, 999–1001, 1013–17 (9th Cir. 2011) (W .

Fletcher, J., concurring); Pinholster, 1388 S. Ct. at 1417 n.5 (Sotomayor,

J., dissenting) (“I 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.

20 MILKE V . RYAN

before it, yet apparently ignores,” evidence that is “highly

probative and central to petitioner’s claim.” Id.

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

MILKE V . RYAN 21

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 1001.

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, 673 P.2d 799, 801–02 (Ariz. Ct. App.

1983). 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

22 MILKE V . RYAN

documents to refresh his memory. See Ariz. R. Evid. 612;

State v. Hall, 504 P.2d 534, 537 (Ariz. Ct. App. 1973). 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

counsel—“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

MILKE V . RYAN 23

thought this issue was important. On cross-examination, he

confronted Milke about her supposed invocation of the 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 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 (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

24 MILKE V . RYAN

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.” Id. 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

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 Saldate’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 Saldate were “key issues” in the case.

Milke requested all documents (1) “concerning the

evaluation of Detective Armando Saldate’s (#1875)

MILKE V . RYAN 25

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 Saldate’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

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.

26 MILKE V . RYAN

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

210 (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

MILKE V . RYAN 27

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. 1989).

(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 of the agents had a few

complaints against him, including one for which he had been

reprimanded. Id. Still, the government turned over nothing

and the district court refused to compel in camera review. Id.

The Second Circuit found a Brady violation. Id. at 216.

Kiszewski has since been cited for the 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.4

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

4

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 States v. Brooks, 966 F.2d 1500, 1505 (D.C. Cir. 1992)

(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’”).

28 MILKE V . RYAN

“[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 turn to the merits.

C. Brady Claim on the Merits

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.

Favorable evidence includes both exculpatory and

impeachment material that is relevant either to guilt or

punishment. See Bagley, 473 U.S. at 674–76; Giglio,

405 U.S. at 154. 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 (2006) (per curiam).

A Brady violation has three elements. Strickler, 527 U.S.

at 281–82. First, there must be evidence that is favorable to

the defense, either because it is exculpatory or impeaching.

Id. at 281–82. Second, the government must have willfully

or inadvertently failed to produce the evidence. Id. at 282.

Third, the suppression must have prejudiced the defendant.

Id.

1. 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. Saldate’s personnel

file contained an internal investigation report showing he had

MILKE V . RYAN 29

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. Saldate

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 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 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

30 MILKE V . RYAN

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: Saldate 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. Saldate’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.

MILKE V . RYAN 31

In the same case, the grand jury asked Saldate 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 would have caught and corrected such an incorrect

representation.” Id.

32 MILKE V . RYAN

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.

! 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,

MILKE V . RYAN 33

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. Id. 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. CR-

130403 (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 Saldate. 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, 846 P.2d 843, 845 (Ariz. Ct. App. 1992).

! 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.

34 MILKE V . RYAN

Transcript of Voluntariness Hearing at 35, supra. This is the

same case discussed earlier in the context of Saldate’s false

statements. Supra p. 30.

! 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. Id. 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.” Id. 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

MILKE V . RYAN 35

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

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 (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

36 MILKE V . RYAN

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, 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.”

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; see, e.g., Giglio, 405 U.S. at 154

(“[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. 1984). 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 (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, 31 (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.”

MILKE V . RYAN 37

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.

The state is charged with the knowledge that there was

impeachment material in Saldate’s personnel file. After all,

the state eventually produced some of this 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. 34–36 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

38 MILKE V . RYAN

also be suppressed. State v. Jones, Nos. 1 CA-CR 90-1922,

1 CA-CR 91-0345 at 2, 7 (Ariz. Ct. App. Nov. 10, 1992).5

All this was happening 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. Id. 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. 30, 33–34 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.”

Id. 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

5

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. 1 CA-CR 90-1922, 1 CA-CR 91-0345 at 1, 2, 7 (Ariz. Ct.

App. Nov. 10, 1992).

MILKE V . RYAN 39

silent.” Id. 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. Id. 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 disclose this or any of the other

instances of Saldate’s misconduct to Milke’s lawyer.

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.

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

40 MILKE V . RYAN

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. 1991);

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

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.6

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

1990.7 The team worked eight hours a day for three and a

6

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. 1995),

a witness testified that she had packaged drugs for the defendant. Id. at

1205. But in her own criminal case, she submitted an affidavit saying

she’d had no involvement in the drug trade. Id. The defendant knew of

the witness’s criminal case and could have found the affidavit in the

public record. Id. 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.” Id. 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.” Id. at 1209.

7

Saldate resigned from the police force on July 10, 1990.

MILKE V . RYAN 41

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 Saldate’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 Saldate’s interrogation/interview practices.” But

without the full personnel file, we can’t know, even now, the

full extent of the misconduct that could have been used to

impeach Saldate.

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. It suffices that there be

“a reasonable probability of a different result” as to either

guilt or penalty. Id. (internal quotation marks omitted).

Prejudice exists “when the government’s evidentiary

suppression undermines confidence in the outcome of the

trial.” Id. (internal quotation marks omitted).

42 MILKE V . RYAN

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 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

Saldate’s lies and misconduct thus qualifies as prejudicial for

purposes of Brady and Giglio.

MILKE V . RYAN 43

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

44 MILKE V . RYAN

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

Saldate’s conduct, and that of his supervisors and other state

and local officials, amounts to a pattern of violating the

federally protected rights of Arizona residents.

MILKE V. RYAN 45

Appendix: Detective Armando Saldate, Jr.’s Misconduct

Incident Impeachment Misconduct Allegations Police Department

Evid. Type Action

Internal Affairs Lying to Saldate stopped a motorist who had a In a disciplinary

Investigation Internal Affairs faulty taillight and possibly an write-up, signed by

(Aug. 31, 1973) Investigators outstanding warrant. He let her go the police chief and

without checking her warrant. She the city manager,

offered him a kiss. The two went to a Saldate was told that

“less conspicuous place” where Saldate “because of this

“leaned inside her car, kissed her and incident, your image

deliberately began making advances and of honesty,

took liberties.” They agreed to meet competency, and

later for sex. Saldate lied about the overall reliability

incident to his supervisors. The lies must be questioned.”

were discovered, however, when the Saldate received a

supervisors administered a polygraph five-day suspension.

examination. Saldate then confessed

the details.

46 MILKE V. RYAN

Case Impeachment Misconduct Court Order

Evid. Type

State v. King, Lying under Saldate testified on direct examination The trial court held

CR90-00050 oath that the defendant never indicated he inadmissible all

(Ariz. Super. didn’t want to answer questions. On statements made after

Ct. Jun. 22, and cross-examination, defense counsel the defendant said he

1990) impeached Saldate with the wanted to cut off

Fifth detective’s own report. Saldate questioning.

Amendment admitted the false statement—and that

Violation he had continued to interrogate the

defendant despite defendant’s demand

to cease questioning.

MILKE V. RYAN 47

Case Impeachment Misconduct Court Order

Evid. Type

State v. Lying under Saldate made false statements to a The trial court held that

Reynolds, oath grand jury that undercut the “the defendant was

CR88-09605 defendant’s alibi and made the denied his right to due

(Ariz. Super. defendant look more culpable than he process and a fair and

Ct. Feb. 27, otherwise would have. impartial presentation

1989) of the evidence by the

manner in which the

[Grand Jury]

proceeding was

conducted.” The court

ordered a new finding

of probable cause.

48 MILKE V. RYAN

Case Impeachment Misconduct Court Order

Evid. Type

State v. Lying under Saldate told the grand jury that The court concluded that

Rodriguez, CR oath the victim had been shot four Saldate had made a false

161282 (Ariz. times even though it was statement, not that the court

Super. Ct. “undisputed” that the victim reporter had erred: “[T]he

Nov. 20, 1986) had been shot only once. The reporter’s notes and the

state blamed the court transcript of the Grand Jury

reporter; it claimed Saldate both reflect that the testimony

never said there was more than of the State’s witness [Saldate]

one shot, and if he did, he was that the deceased was shot

“surely . . . would have caught four times” even though “the

and corrected such an facts in this case are

incorrect representation.” undisputed that the deceased

was shot only one time.” The

trial court ordered a

redetermination of probable

cause.

MILKE V. RYAN 49

Case Impeachment Misconduct Court Order

Evid. Type

State v. Lying under When Saldate testified before the The court held that the

Rangel, CR89- oath grand jury, he omitted some of actions of Saldate and

08086 (Ariz. defendant’s statements in such a way the prosecutor “made

Super. Ct. Oct. as to make defendant look more the presentation of

16, 1989) culpable. 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.

50 MILKE V. RYAN

Case Impeachment Misconduct Court Order

Evid. Type

State v. Jones, Fourth Saldate ordered a juvenile to be The trial court called

No. CR 90- Amendment detained in an interrogation room, the detention that

05217 (Ariz. Violation where he was handcuffed to a table. Saldate ordered “a

Super. Ct. This, despite the fact that the trial show of flagrant

Nov. 29, 1990) court found there was no probable misconduct” and ruled

cause for the detention and “the police that the murder

clearly had no information linking the confession must be

Defendant to the murder or suppressed as “the fruit

disappearance of [the victim].” of the illegal arrest.”

MILKE V. RYAN 51

Case Impeachment Misconduct Court Order

Evid. Type

State v. Yanes, Fifth Saldate admitted interrogating a The court vacated

CR 130403 Amendment suspect who was strapped to a defendant’s conviction

(Ariz. Super. Violation hospital bed, incoherent and and ordered a new trial.

Ct. July 26, disoriented, after apparently suffering At the suppression

1984) a skull fracture. When interviewed by hearing for the new

doctors, the suspect did not know his trial, the court granted

own name, the year or the name of the defendant’s motion to

president, but the state nonetheless suppress “those

presented the suspect’s statement at statements made by the

trial. defendant to Armando

Saldate.”

52 MILKE V. RYAN

Case Impeachment Misconduct Court Order

Evid. Type

State v. Conde, Fifth Saldate interrogated a defendant in intensive The trial court

846 P.2d 843 Amendment care who was intubated and connected to ruled in 1989 that

(Ariz. Ct. App. Violation intravenous lines. Saldate testified that the statements from

1992) defendant was drifting “in and out” of this interrogation

consciousness. Nonetheless, Saldate read the — the first of two

Miranda warnings and went on with the in the hospital —

interrogation. “I really don’t know whether were “involuntary

he wasn’t responding because he didn’t and inadmissible.”

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.

MILKE V. RYAN 53

Case Impeachment Misconduct Court Order

Evid. Type

State v. Fifth Defendant made an “unequivocal The Arizona Court of

Mahler, No. 1 Amendment invocation” of his right to remain silent. Appeals held that

CA-CR 90- Violation Instead of stopping the interrogation, “Officer Saldate’s

1890 (Ariz. Ct. Saldate pushed on, telling defendant intent was clear . . . he

App. Oct. 2, that “he did not want an admission but wanted additional

1992) that he just wanted [defendant’s] side of statements from

the story.” [defendant]. This

conduct violated

[defendant’s] right to

remain silent.” The

court suppressed all

statements defendant

made after he invoked

his right to silence, and

remanded the case.

54 MILKE V . RYAN

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.

Equally troubling are Saldate’s unorthodox interrogation

methods. Saldate has obtained confessions from people who

were intoxicated, hospitalized and on pain medication. See

Op. 32–33; Appendix. Saldate once ordered a juvenile to be

detained in an interrogation room, where he was handcuffed

to a table, even though the police had “no information linking

the Defendant” to a crime. Order Granting Mot. to Suppress

at 2, State v. Jones, No. CR 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.” Id. 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. 1 CA-CR 90-

1922, 1 CA-CR 91-0345, at 1, 6 (Ariz. Ct. App. Nov. 10,

1992). In another case, Saldate admitted interrogating a

suspect who was strapped to a hospital bed, incoherent after

MILKE V . RYAN 55

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 invocation to

remain silent,” yet Saldate pushed on with the interrogation,

insisting that he only wanted the defendant’s “side of the

story.” State v. Mahler, No. 1 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. Id.

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. Id. 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 Saldate 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]

56 MILKE V . RYAN

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

Saldate 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,” Saldate testified. “Never happened with my case

or any other case I was involved in.” This, from an officer

with twenty-one years on the Phoenix Police force. Soon

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

MILKE V . RYAN 57

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

58 MILKE V . RYAN

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 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

MILKE V . RYAN 59

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 Saldate’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.” Id. 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 that Petitioner did not ask for an

attorney at the outset of the interrogation.” Id. at *11.

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

60 MILKE V . RYAN

may have thought it wise not to have them available to

impeach his official report.

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. Had the district

judge taken these incidents into account, he might well have

made a different finding.

I would reverse the district court’s finding that Milke

knowingly waived her rights under Miranda and Edwards v.

Arizona, 451 U.S. 477 (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 Milke.