You are on page 1of 39

EXHIBIT A

CR 1989-012631
HON. ROSA MROZ
STATE OF ARIZONA
v.
DEBRA JEAN MILKE (A)
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
Michael K. Jeanes, Clerk of Court
*** Electronically Filed***
12/19/2013 8:00AM
12/18/2013
CLERK OF THE COURT
J. Matlack
Deputy
VINCE H IMBORDINO
MICHAEL D KIMERER
LORI L VOEPEL
LARRY L DEBUS
CAPITAL CASE MANAGER
UNDER ADVISEMENT RULING
The Court has considered the following: (1) State's Memorandum Regarding Witness
Invocation of Fifth Amendment Privilege and Request for Hearing; (2) Defendant's Preliminary
Response to State's Memo to Correct Record re: Saldate's Expressed Intent to Invoke 5th
Amendment Privilege and Consult with Counsel; (3) State's Reply to the Defendant's
Preliminary Response; ( 4) Defendant's Responsive Memo re: Witness Invocation of 5th
Amendment Privilege and Request for Hearing; (5) Saldate's Response to State's Motion re:
Saldate's Right to Invoke His 5th Amendment Privilege; (6) State's (Second) Memorandum re:
Witness Invocation of 5th Amendment; (7) Defendant's Response to State's (Second)
Memorandum regarding Witness Invocation of Fifth Amendment Privilege; (8) Saldate's
Supplemental Response to State's Motion re: Saldate's Right to Invoke his 5th Amendment
Privilege; (9) Supplement to Defendant's Response to State's (Second) Memorandum regarding
Witness Invocation of Fifth Amendment Privilege; (10) the Ninth Circuit opinion in Milke v.
Ryan
1
; (1 0) State's Notice of United States Department of Justice Decision; (11) Notice of Letter
from United States Attorney's Office, and (12) oral arguments made.
1 711 F.3d 998 (9th Cir. 2013)
Docket Code 926
Form ROOOA
Page 1
CR 1989-012631
Preliminary Matters
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
12/18/2013
First, the Court wants to address the State's contention that this Court should not have
asked whether Detective Saldate ("Saldate") needed a lawyer before he testifies in this case. The
Court agrees with the State that courts do not generally inquire if witnesses need lawyers to
protect their rights when a conviction is overturned and a new trial is ordered. However, this is
not a normal case. The Ninth Circuit specifically referred Saldate "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, ... , amounts to a
pattern of violating the federally protected rights of Arizona residents."
2
This Court would be
remiss in its duties were it to ignore such an obvious issue.
Second, the parties have asked this Court to address whether the Ninth Circuit's
interpretation of the eight cases cited in the Opinion can be challenged, or are subject to "law of
the case" or "collateral estoppel" determinations. This issue is the subject of a separate motion
filed by the defense and will be decided at a later date. The Court reviewed the information
about these eight cases at this time only for the purposes of determining the legitimacy of
Saldate's invocation of his Fifth Amendment rights. While this Court does not fully agree with
the conclusions reached by the Ninth Circuit in every case, the Court finds that Saldate does have
a legitimate reason to fear prosecution arising out of his conduct in these cases.
Invocation of Fifth Amendment Privilege
At the December 13,2013 hearing, Saldate confirmed that he is asserting his privilege
against self-incrimination. He further stated that if ordered to testify, he will testify consistent
with his previous testimony.
The court must assess the legitimacy of any claim of privilege.
3
In assessing the claim of
privilege, the court considers whether the witness has provided a factual predicate sufficient for
the court to evaluate the claim of privilege,
4
and whether the witness has demonstrated a
reasonable apprehension of danger.
5
2Jd. at 1019-20.
3 See State v. McDaniel, 136 Ariz. 188, 193-195,665 P.2d 70 (1983); State v. Cornejo, 139 Ariz. 204,677 P. 2d
1312 (App. 1983); State v. Maldonado, 181 Ariz. 208, 211, 889 P.2d I, 4 (App. I 1994).
4 State v. Rosas-Hernandez, 202 Ariz. 212, ~ 1 7 42 P.3d 1177 (App. Div.l 2002)).
5 Flagler v. Derickson, 134 Ariz. 229, 231, 655 P. 2d 349, 352 ( 1982)("witness must apprehend a real and
appreciable danger of prosecution"); United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir. 1998)(privilege
justified on showing of"substantial and real, and not merely trifling or imaginary, hazards of incrimination").
Docket Code 926 Form ROOOA Page 2
CR 1989-012631
Factual Predicate:
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
12/18/2013
Saldate was the main witness at the Defendant's 1990 trial, at the Rule 32 hearing, and at
the federal habeas proceeding in 20 I 0. The Court has reviewed the trial, the Rule 32/post-
conviction and the habeas proceedings and is familiar with the questions asked of Saldate. The
State confirmed that the relevant questions to be asked of Sal date by the State in any future court
hearings would be substantially similar to those previously asked. Additionally, the Court
anticipates questions from the Defendant related to the impeachment materials described in the
Ninth Circuit opinion.
THE COURT FINDS that Saldate has provided a factual predicate sufficient for the
court to evaluate the claim of privilege.
Reasonable Apprehension of Danger:
The Ninth Circuit opinion makes it clear that the court believed that Saldate lied under
oath or disregarded suspects' constitutional rights and the court referred Saldate "to the 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, ... , amounts
to a pattern of violating the federally protected rights of Arizona residents."
6
As stated supra,
while this Court does not fully agree with the conclusions reached by the Ninth Circuit in every
case, the Court does find that Sal date has a legitimate reason to fear prosecution arising out of his
conduct in the cases cited by the Ninth Circuit. Furthermore, the Ninth Circuit concluded, in
advance, that if Sal date testifies consistently with his previous testimonies, he would expose
himselfto a perjury prosecution.
7
The State argues that Saldate does not have a reasonable apprehension of danger because
federal authorities declined to prosecute Saldate and the Maricopa County Attorney's Office
does not intend to prosecute Sal date for any past testimony.
A. U.S. Attorney's Letter
On August 30, 2013, the U.S. Attorney for the District of Arizona wrote a letter
indicating that it received an Order from the Ninth Circuit for a possible investigation of whether
6Mifke, 711 F.3dat 1019-20.
7 The Court is aware that a witness may not invoke the Fifth Amendment privilege in connection with the potential
for perjury charges related to future truthful testimony. United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir.
1998) (fear of perjury prosecution as result of future truthful testimony insufficient to support claim of privilege;
"shield against self-incrimination ... is to testify truthfully, not to refuse to testify on basis witness may face
prosecution for lie not yet told.").
Docket Code 926 Form ROOOA Page 3
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
12/18/2013
Saldate's conduct as identified in the Milke opinion constituted viable civil rights violations. It
concluded that "any criminal prosecution would be barred by the applicable federal statute of
limitations period. As a result, this office declines to pursue charges for the referred conduct."
8
Although the U.S. Attorney appears to have declined criminal charges, the declination is
very limited:
1. The U.S. Attorney only addressed "viable civil rights violations" and did not address
any possible federal perjury charges arising from any of Saldate's testimony.
2. The U.S. Attorney declined prosecution on the basis of"applicable federal statute of
limitations period." The applicable federal statute of limitations period is 5 years.
9
While the statute of limitations may have run in reference to Saldate's 1990
testimony, the statute of limitations has not expired for Saldate's 2010 testimony.
3. If Saldate testifies consistently with his prior testimonies in future court proceedings,
he may be subject to prosecution under a theory of continuing conspiracy to violation
of civil rights because some of the defendants in the eight cases mentioned in the
Milke opinion are still serving sentences, and some are still in the process of
appealing their conviction.
10
The statute of limitations does not begin to run until the
last overt act leading to accomplishment of the conspiracy was committed.
11
Furthermore, as to the Defendant specifically, each time Saldate testifies against her
could be deemed are-violation of her civil rights which would allow the statute of
limitations to begin anew.
4. This U.S. Attorney did not grant immunity for past acts or future testimony to
Sal date.
5. The U.S. Attorney specified that he "cannot speak for any other prosecution agency
that may have, or have had, jurisdiction over Mr. Saldate's conduct."
8 August 30,2013 letter from Monica Klapper, Assistant United States Attorney, to Vince lmbordino, Deputy
County Attorney, attached to the Notice of Letter from United States Attorney's Office.
9 18 U.S.C., Chapter 213.
10 Exhibit A of the Supplement to Defendant's Response to State's (Second) Memorandum Regarding Witness
Invocation of Fifth Amendment Privilege.
11 Culp v. United States, 131 F.2d 93, I 00 (8th Cir. 1942).
Docket Code 926 Form ROOOA Page 4
CR 1989-012631
B. DOJ Letter
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
12/18/2013
On December 6, 2013, the Civil Rights Division ofthe U.S. Department of Justice wrote
a letter stating:
"The Criminal Section of the Civil Rights Division ... specifically reviewed whether the
facts and circumstances surrounding Saldate's conduct in the State v. Milke prosecution
and subsequent habeas proceedings supported a prosecutable violation of the federal
criminal civil rights statutes .... we have reviewed the available evidence in this
matter ... and concluded that the evidence does not support a prosecutable violation of the
applicable federal criminal civil rights statutes. Accordingly, the Criminal Section
declines prosecution in this matter."
12
Similar to the U.S. Attorney's letter, DOJ's letter declining to prosecute Saldate is
limited:
I. The Ninth Circuit specifically asked DOJ to investigate whether "Saldate's conduct,
and that of his supervisors and other state and local officials, amounts to a pattern of
violating the federally protected rights of Arizona residents." (Emphasis added).
Instead, the DOJ only declined prosecution related to "the facts and circumstances
surrounding Saldate's conduct in the State v. Milke prosecution and subsequent
habeas proceedings". (Emphasis added). The DOJ's letter did not make any
references to Saldate's conduct in the eight other cases that the Ninth Circuit found
problematic nor did it make any references to the 2009 allegations involving Belinda
Reynolds. It is important to note that Saldate was not cross-examined about these
cases at the previous trial. The defense has already indicated that Saldate will be
cross-examined about them in any future proceedings in this case. Depending on how
Saldate answers those questions, his testimony could be used against him to support
any potential federal criminal civil rights charges from these eight cases and the
Reynolds case.
2. DOJ did not decline to prosecute any perjury charges arising from any of Saldate's
testimony.
3. DOJ did not grant immunity for past acts or future testimony to Saldate.
12 December 6, 2013letter from Robert Moossy, Jr., Chiefofthe Criminal Section ofthe Civil Rights Division, to
Bill Montgomery, Maricopa County Attorney, attached to the Notice of United States Department of Justice
Decision.
Docket Code 926 Form ROOOA Page 5
CR 1989-0 12631
C. Perjury Charge
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
12/18/2013
Mr. Imbordino, the representative of the current Maricopa County Attorney, Bill
Montgomery, orally confirmed that his office does not intend to prosecute Sal date for any past
testimony. The Court notes, however, that MCAO did not provide Saldate with a written letter
guaranteeing him that he is free from prosecution now and in the future.
13
The Court simply
notes that under Arizona law, perjury is a class 4 felony.
14
The statute of limitations on a class 4
felony is seven years.
15
Furthermore, MCAO has no jurisdiction over any federal perjury charges arising from
Sal date's 20 I 0 testimony, and cannot assure Sal date that he will not be prosecuted in federal
court.
Based on the foregoing,
THE COURT FINDS that Saldate has demonstrated a reasonable apprehension of
danger that, if compelled to answer, he would face criminal charges based on his past testimony
and/or present disclosures, and that the Fifth Amendment affords protection.
Blanket Assertion of Privilege:
Generally, a blanket privilege cannot be asserted. The claim of privilege may be raised
as to specific relevant questions; each question must clearly seek testimony incriminating to the
witness.
16
However, if a judge determines that a witness could legitimately refuse to answer
essentially all relevant questions, then that witness may be totally excused without violating the
witness's Sixth Amendment right to compulsory process.
17
" ... [T]his exception is a narrow one.
It is only applicable when the trial judge has extensive knowledge of the case and rules that the
Fifth Amendment would be properly invoked in response to all relevant questions that the party
calling the witness plans on asking."
18
The Court has extensive knowledge about this case because it has reviewed most of the
transcripts from the trial, transcripts and exhibits from the 20 I 0 federal court hearing, the Ninth
13 The Court does not know if an oral confirmation would suffice to bind future Maricopa County attorneys from
prosecuting Saldate.
14 A.R.S. I3-2702(B).
15 A.R.S. 13-I07(B)(I).
16 State v. McDaniel, I36 Ariz. I88, 665 P.2d 70 (I983), abrogated on other grounds by State v. Walton, I 59 Ariz.
57 I, 769 P.2d IOI7 (I989); see State v. Maldonado, I8I Ariz. 208, 2II, 889 P.2d I, 4 (App. I I994).
1
7 McDaniel, I36 Ariz. at I94, 665 P.2d at 76.
18Jd.
Docket Code 926 Form ROOOA Page 6
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
12/18/2013
Circuit Opinion and records from the eight cases cited in the Ninth Circuit Opinion, as well as a
number of exhibits submitted by the State and the defense. The State has confirmed that the
relevant questions to be asked to Saldate in future proceedings will be substantially similar to
those asked of Sal date previously. The defense has confirmed that it will impeach Sal date with
the information from the cases mentioned in the Ninth Circuit opinion.
THE COURT FINDS that Saldate may make a blanket assertion of privilege.
Conclusion
A judge may deny the claim of privilege only where it is '"perfectly clear' from a careful
consideration of all the circumstances in the case, that the witness is mistaken and that the
answer cannot possibly have such tendency to incriminate."
19
This places a heavy burden on the
judge who decides to compel testimony over a Fifth Amendment claim.
After careful consideration of the totality of the circumstances, the Court finds that it is
not "perfectly clear" that Saldate is mistaken and that his testimony could not possibly have the
tendency to incriminate him. Accordingly,
IT IS ORDERED denying the State's request to compel Saldate to testify over Saldate's
Fifth Amendment claim.
IT IS FURTHER ORDERED setting a Status Conference on January 17,2014 at 2:00
p.m. to discuss what issues remain given the Court's decision.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
19 Malloy v. Hogan, 378 U.S. I, 12 (1964), citing Hoffman v. United States, 341 U.S. 479,488 (1951).
Docket Code 926 Form ROOOA Page 7
EXHIBITB .
CR 1989-012631
HON. ROSA MROZ
STATE OF ARIZONA
v.
DEBRA JEAN MILKE (A)
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
Michael K. Jeanes, Clerk of Court
***Filed***
09/05/2013
CLERK OF THE COURT
J. Matlack
Deputy
VINCE H IMBORDINO
MICHAEL D KIMERER
LORI L VOEPEL
CAPITAL CASE MANAGER
D & C MATERIALS-CSC
PSA- RELEASE & REPORTS
UNDER ADVISEMENT RULING
The Court has considered the Defendant's Motion to Set Bond, the State's Response, the
Defendant's Reply, the exhibits submitted, and the arguments of counsel.
The Defendant's son was murdered on December 2, 1989. In 1990, a jury convicted the
Defendant ofthat murder. On March 14, 2013, the Ninth Circuit Court of Appeals overturned
the Defendant's conviction based on the prosecution's Brady violation in failing to disclose
impeachment evidence related to (now retired) Phoenix Police Detective Saldate. The Ninth
Circuit opinion detailed Detective Saldate's various instances of misconduct, ranging from lying
to internal affairs investigators and lying under oath, to violations of various defendants' Fourth
and Fifth Amendment rights, and ruled that the information regarding these instances of
misconduct were Brady material that should have been disclosed to the defense. See Milke v.
Ryan, 711 F.3d. 998 (9
1
h Cir. 2013).
After reviewing the exhibits submitted for the Simpson hearing, the Court agrees with the
Ninth Circuit court's opinion that the only direct evidence linking the Defendant to the crimes is
the Defendant's alleged confession to Saldate. Although the State would like the Court to focus
Docket Code 926 Form ROOOA Page 1
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/05/2013
on the fact that the Defendant has already been convicted once by a jury and urged the Court to
ignore the allegations against Sal date for the purposes of the Simpson hearing, the Court cannot
do that. Much has transpired since the original trial. Back then, the jury did not have the benefit
of the information against Sal date that the Ninth Circuit court ruled was Brady material. This
Court also cannot simply ignore the Ninth Circuit court's opinion and all the information that
this Court now has in its possession.
The Brady material casts serious doubts on the validity of the Defendant's alleged
confession. The Court has not yet been able to weigh Saldate's credibility against the credibility
of the Defendant in deciding whether the alleged confession is valid and admissible. That will be
done at the suppression hearing set for September 23, 2013. In the meantime, this Court must
decide the bond issue based on the totality of the existing information. The existing information
does not make it "plain and clear to the understanding, and satisfaction, and apparent to the well-
guarded, dispassionate judgment" of this Court that the Defendant committed the crimes. See
Simpson v. Owens, 207 Ariz. 261,272, 40 (App. 2004).
THE COURT FINDS that the proof is not evident or presumption great that the
Defendant committed the crimes charged in the Indictment.
Accordingly,
IT IS ORDERED setting a secured bond in the amount of $250,000.
IT IS FURTHER ORDERED that the Defendant shall comply with the following
additional terms:
1. Once bond is posted, the Defendant is also subject to the supervision restrictions and
conditions of the Pretrial Services Agency, including electronic monitoring program,
which includes a curfew between the hours of 9 p.m. and 6 a.m.
2. The Defendant is not to initiate contact of any nature with Arizona Milke.
3. The Defendant is not to possess any weapons and is not to possess any drugs without
a valid prescription.
4. The Defendant is not to drink alcoholic beverages and drive, or drive without a valid
driver's license.
Docket Code 926
Form ROOOA
Page 2
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/05/2013
5. The Defendant shall reside at the address listed on the Release Order form, unless
written approval to change residence is obtained from Pretrial Services before
moving.
6. The Defendant shall submit to DNA testing within 5 days of release from custody at
the arresting agency. Failure to comply with this order will result in the Defendant's
release being revoked.
7. The Defendant shall remain in Maricopa County, unless prior written approval is
obtained from the Court.
IT IS FURTHER ORDERED that the Defendant's attorneys shall obtain the Release
Order form from this division's judicial assistant and have the Defendant sign the Release Order
before the Defendant may be released from custody. Once the Release Order is signed by the
Defendant, the Release Order shall be returned to this division's judicial assistant within five (5)
days.
IT IS FURTHER ORDERED that the signed Release Order shall be filed under seal to
protect the Defendant's safety while in the community as the Release Order contains the
Defendant's address.
LET THE RECORD REFLECT that State's supplemental exhibit received was marked
and admitted as Exhibit 15; and the Defense's supplement exhibits received were marked and
admitted as Exhibits 16 through 24.
FILED: Exhibit Worksheet.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
Docket Code 926
Form ROOOA
Page 3
EXHIBIT C
MDK Kimerer, Michael
From:
Sent:
To:
Larry Debus <lld@dkwlawyers.com>
Tuesday, September 10, 2013 2:10PM
nageottes@superiorcourt.maricopa.gov
Cc: Desiree Ellis; Larry Debus; MDK KimerE!f, Michael; 'Imbordino Vince
(IMBORDIN@mcao.maricopa.gov)'
Subject: FW: Saldate
Neither have an objection to sharing this with the court.
Larry Debus
From: Larry Debus
Sent: Tuesday, September 10, 2013 10:19 AM
To: 'Imbordino Vince (IMBORDIN@mcao.maricopa.gov)'; 'MDK Kimerer, Michael'
Cc: Desiree Ellis; Tracey Westerhausen; 'Larry Debus (!ld@dkwlawyers.com)'
Subject: Saldate
Vince and Mike, The following are the decisions Mr. Said ate has arrived at with my advice and counseling. Since I was
court appointed for a witness I believe I need to share this with the court. Do either of you have an objection.
Larry
1} Mr. Saldate will assert his Fifth Amendment privilege and refuse: to testify. This refusal is based on several
factors.
a. First, and foremost, is the language of the Ninth Circuit court or page 21 of the Milke opinion. The court has
concluded, in advance, that should he testify consistent with his previous testimony that "he would expose himself to a
perjury prosecution."
b. While you may be able to seek immunity for past testimony, I q'..testion your ability, or success, to get immunity
for any and all future testimony in this case. I do not think it is possible.
c. If, as the Ninth Circuit states, testimony consistent with his previous trial testimony, subjects him to a perjury
prosecution so too would it subject him to a Civil Rights prosecution on the very same basis.
d. A federal grant of immunity would have to include any federal Civil Rights or other crimes arising out of any
previous or future testimony including the suppression hearing in 2010. I do not believe such an immunity is possible.
However, should you get such an agreement from the United States Department of Justice it would have to be signed by
the Assistant United States Attorney for the Civil Rights Division of the United States Department of Justice and the
United States Attorney for the District of Arizona.
2) Mr. Saldate will not voluntarily cooperate with the Maricopa County Attorney's office in the preparation of their
case. Assertion of the privilege prevents him from doing so. In addition, he is not inclined to assist in light of the
treatment he has previously experienced from the Phoenix Police Department and the Arizona Attorney General's
Office. Neither is Mr. Saldate able or willing to cover attorney fees that would be necessary to provide him legal
assistance during this time. I have accepted an appointment limited to representation of Mr. Saldate at the September
23, 2013 hearing.
3) I have anticipated that you may claim waiver. State vs. Harrod, 218 Az. 268. Waiver requires a knowing and
voluntary act. There are a number of factors that can lead to but one conclusion. There was no waiver by Mr. Sal date in
1990 or 2010. '
a. Mr. Saldate did not make the required knowing or voluntary waiver of his Fifth Amendments rights. There is no
record of so much as a discussion of waiver in 1990 or 2010.
1
b. Mr. Saldate was unrepresented in 1990. Without the advice of counsel there can never be a knowing or
voluntary waiver of one's Fifth Amendment rights.
c. Mr. Saldate's testimony in 2010 was in a hearing limited in purpose to determining conformity with Miranda.
Mr. Saldate was unrepresented in 2010 as well.
d. The allegations of significance to Mr. Saldates assertion of privilege here did not arise until subsequent to the
testimony of Mr. Saldate and therefore cannot be the predicate for a knowing waiver.
e. The first knowledge that would have given rise to a consideraticn of assertion of his Fifth Amendment privilege
by Mr. Saldate came on March 13, 2013 with the publishing of the opinion of the Unites States Court of Appeals in Milke
v. Ryan. Any consideration by Mr. Saldate of assertion of a knowing waiver of his Fifth Amendment privilege could not
have come before this date.
f. Harrod is a knowing waiver case and involves the marital privilege. This is neither.
The arguments of Harrod are trumped by the Unites States Constitutional privilege against self-incrimination.
larry Debus
Larry L. Debus
Debus, Kazan & Westerhausen, Ltd.
335 East Palm lane
Phoenix, AZ 85004
Telephone- (602) 257-8900
Facsimile- (602) 257-0723
Email-lld@dkwlawyers.com
The information contained in this electronic message is confidential and intended solely for the use of the individual or
entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution, copying or unauthorized use of the communication is strictly prohibited. If you have
received this email in error, please notify the sender immediately by Thank you.
2
EXHIBITD
CR 1989-012631
HON. ROSA MROZ
STATE OF ARIZONA
v.
DEBRA JEAN MILKE (A)
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/16/2013 8:00AM
09/12/2013
CLERK OF THE COURT
J. Matlack
Deputy
VINCE H IMBORDINO
MICHAEL D KIMERER
LORI L VOEPEL
LARRY L DEBUS
CAPITAL CASE MANAGER
JUDGE WELTY
CAPITAL/COMPLEX CASE MANAGEMENT CONFERENCE
3:28p.m.
Courtroom 7D - SCT
State's Attorney:
Defendant's Attorney:
Defendant:
Attorney:
Vince lmbordino
Michael Kimerer & Lori Voepel
Not Present- Presence Waived
Larry Debus (Representing Det. Sal date)
Court Reporter, Monica Hill-Morrisette, is present.
A record of the proceeding is also made by audio and/or videotape.
Discussion held regarding (former) Detective Saldate's invocation of his right against
self-incrimination (hereinafter "5
1
h Amendment privilege").
Docket Code 081
Form R027
Page 1
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/12/2013
Mr. Debus, Saldate's attorney, confirms that Saldate will be invoking his 5th Amendment
privilege at the suppression hearing scheduled for September 23, 2013.
The State anticipates filing a motion to appoint counsel for Saldate who is willing to
advise Saldate for the County contract rate so that Saldate can be more fully advised as to his
options. The State anticipates attaching voluminous material to the motion that will allegedly
rebut the 9th Circuit Court's findings that Saldate lied and was found to have violated defendants'
constitutional rights. The State contends that the Court cannot make a decision on whether
Saldate has the right to invoke his 5th Amendment privilege without reviewing those materials.
Debus states that although the Court has appointed him for the hearing set on September
23, 20 13, he wi II be Saldate' s attorney outside of that hearing. The Court expresses concern as
to whether it has the legal authority to interfere in Saldate's attorney-client relationship.
After discussion,
IT IS ORDERED that Saldate shall appear on September 23, 2013, to invoke his 5th
Amendment privilege in open court. At that time, Saldate shall also tell the Court whether he is
willing to work with an attorney who is not Debus if the Court grants the State's motion to
appoint counsel.
IT IS FURTHER ORDERED that the suppression hearing of September 23, 2013 is
vacated and reset as a status conference. The Court will set another suppression hearing, if
necessary, after deciding whether Saldate has the right to invoke his 5th Amendment privilege.
Discussion held regarding the trial date of September 30,2013. Mr. Kimerer states that
now that the Defendant is out of custody, the urgency to try the case has subsided and that he
needs more time to prepare the case for trial. Kimerer further states that his client is willing to
waive time. Mr. Imbordino is in agreement.
IT IS ORDERED vacating the trial set for September 30, 2013. The Court will reset the
trial date once issues regarding Saldate's 5th Amendment privilege and the Defendant's alleged
confession has been resolved.
Discussion held regarding the last day for this case. It is currently set for October 7,
2013. The Court believes that the State has a 2 year time limit to try the Defendant from the date
of the case is returned back to superior court for a new trial, pursuant to Criminal Rule 8.2(a)(4).
Accordingly,
Docket Code 081
Form R027
Page 2
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/12/2013
IT IS ORDERED setting the last day as July 8, 2015. If there is any dispute about this
last day, the parties shall notify the Court within 3 judicial days, otherwise it is deemed waived.
State orally moves the Court for an Order to prevent Debra Milke from contacting
witnesses in the case, such as her family members, as part of her release condition. After
discussion,
IT IS ORDERED that the State shall file a written motion, citing legal authority, that
allows the Court to prevent a defendant from contacting witnesses, such as her own family
members. The defense will have an opportunity to respond.
IT IS FURTHER ORDERED affirming prior release conditions/orders.
3:53p.m. Matter concludes.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
LATER:
The Court has reviewed Criminal Rule 8.2(c) which states that "[a] trial ordered upon the
reversal of a judgment by an appellate court shall commence within 90 days of the service of the
mandate of the Appellate Court. Based on this rule, it appears that the correct last day is in fact
October 7, 2013. Accordingly,
IT IS ORDERED vacating the Court's prior determination that the last day is July 8,
2015. The Court wi II discuss waiving time for the commencement of the trial with counsel on
September 23,2013.
Docket Code 081
Form R027
Page 3
EXHIBITE
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/17/2013 8:00AM
09/16/2013
HON. ROSA MROZ
CLERK OF THE COURT
J. Matlack
Deputy
STATE OF ARIZONA VINCE H IMBORDINO
v.
DEBRA JEAN MILKE (A) MICHAEL D KIMERER
LORI L VOEPEL
LARRY L DEBUS
CAPITAL CASE MANAGER
ORDER ENTERED
The Court has read an article written by J.J. Hensley in the Arizona Republic regarding a
press conference held on September 13,2013, by Maricopa County Attorney Bill Montgomery
about this case. The Court was surprised to learn that the State has received a letter from federal
prosecutors in late August saying that the statute of limitations had expired on any misconduct
by Sal date. The Court has had hearings in this case in which the very issue of whether Detective
Saldate is being investigated by the Justice Department and whether he needed to have an
attorney was discussed:
August 23, 2013
Docket Code 023
Discussion held regarding whether Detective Saldate needs a lawyer to
represent him in the suppression hearing because the Ninth Circuit referred
him to the U.S. Attorney's Office to investigate whether Detective Saldate
committed any civil rights violations. Mr. Imbordino, stated that to his
knowledge the U.S. Attorney has not taken any action to investigate
anyone arising out of this case.
Form ROOOA
Page I
CR 1989-012631
August 30, 2013
' September 12,
2013
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/16/2013
Discussion held regarding Detective Saldate's retention of Mr. Debus as
his lawyer to advise him regarding his potential criminal liability. The
Court appoints Mr. Debus to advise Detective Saldate for the purposes of
the suppression hearing.
Mr. Debus confirms that he advised Detective Saldate to invoke his Fifth
Amendment privilege against self-incrimination.
If the news article is accurate, then the Court finds it curious that the State did not inform
this Court about the federal prosecutors' letter. The State has had numerous opportunities to
inform the Court of this development, including at the September 12, 2013 hearing, which was
just the day before the press conference.
The Court has also reviewed the State's Memorandum Regarding Witness Invocation of
Fifth Amendment Privilege which this Court received on September 13, 2013, after Mr.
Montgomery's press conference. This Memorandum asks the Court and Mr.Debus to "conduct
a thorough and extensive investigation" before the Court asks Detective Saldtate what his
intentions are regarding the invocation of his 5th Amendment privileges. The State makes no
mention of the letter in this Memorandum either.
The Court also does not know if Mr. Debus or the Milke defense team knew ofthe
information revealed at a press conference. Neither the Court nor Mr. Debus can make an
informed decision if we do not have all the facts. Accordingly,
IT IS ORDERED that the State produce the letter, if it exists, from the federal
prosecutors to this Court, Mr. Debus and the Milke defense team by no later than September 20,
2013.
IT IS FURTHER ORDERED that the status conference set for September 23,2013 for
Detective Sa1date to come to court to tell the Court of his decision is vacated to allow Mr. Debus
and the Milke defense team time to review the federal prosecutors' letter and the information
contained in the State's Memorandum.
IT IS FURTHER ORDERED that while Detective Saldate need not appear on
September 23, 2013, the attorneys for the State and the defense shall appear to discuss
scheduling issues. Mr. Debus need not appear if he will inform the Court in advance of the
hearing how much time he needs to review the information and what dates he cannot be in court
in the months of October and November.
Docket Code 023
Form ROOOA
Page 2
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/16/2013
IT IS FURTHER ORDERED that Mr. Imbordino shall file a written explanation by
September 20, 2013 as to why the State did not inform the Court of the federal prosecutors'
letter and instead chose to reveal the information through a press conference, if in fact the letter
exists.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
Docket Code 023
Form ROOOA
Page 3
EXHIBITF
Michael K. Jeanes, Clerk of Court
***Electronically Filed***
09/25/2013 8:00AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 09/23/2013
HON. ROSAMROZ
CLERK OF THE COURT
J. Matlack
Deputy
STATE OF ARIZONA VINCE H IMBORDINO
v.
DEBRA JEAN MILKE (A) MICHAEL D KIMERER
LORI L VOEPEL
LARRY L DEBUS
CAPITAL CASE MANAGER
JUDGE WELTY
CAPIT ALl COMPLEX CASE MANAGEMENT CONFERENCE/
TRIAL SET/LAST DAY EXTENDED
1:31 p.m.
Courtroom 7D - SCT
State's Attorney:
Defendant's Attorney:
Detective Saldate's Attorney:
Defendant:
Vince Imbordino
Michael Kimerer & Lori Voepel
Larry Debus
Present
Court Reporter, Monica Hill-Morrisette, is present.
A record of the proceeding is also made by audio and/or videotape.
Discussion held regarding the State's Notice of Letter from United States Attorney's
Office. The Court finds the State's explanation as to why the Court was not informed about such
a letter surprising. The Court advises the State that if the State believes the information to be
relevant enough and developed enough to discuss it at a press conference, then the State should
have given the information to the Court because the Court will be deciding whether Detective
Saldate may invoke his privilege against self-incrimination, not the media.
Docket Code 027
Form R027
Page 1
CR 1989-0 12631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/23/2013
Discussion held regarding the last day and trial dates. The parties stipulate to a Last Day
of February 27,2015.
Discussion held regarding Detective Saldate. His attorney, Larry Debus, informs the
Court that his advice remains that Saldate should invoke his 5th Amendment privilege against
self-incrimination, and that Saldate still plans to invoke this privilege.
IT IS ORDERED that the State shall file a Motion/Memo regarding Saldate's ability to
invoke his 5th Amendment privilege by October 31,2013. The Defense and Mr. Debus's
Response is due by November 15,2013.
IT IS FURTHER ORDERED setting an Evidentiary Hearing re: State's Motion or
Memorandum re: Detective Saldate's Ability to Invoke his 5th Amendment Privilege on
December 6, 2013 at 1:30 p.m. (3 hours) in this division. Detective Saldate shall be present
for this hearing.
Discussion held regarding Defendant's Motion to Suppress confession. State indicates it
will file its Response today.
IT IS ORDERED that the Defense shall file its Reply by October 31, 2013.
IT IS FURTHER ORDERED setting an Evidentiary Hearing re: Defense's Motion to
Suppress for January 13th, 14'
11
, 1St", 16t
11
, and 11
11
,2014 at 1:30 p.m. in this division.
Defense indicates that it will file a motion to preclude the court's consideration of State's
materials that will rebut the 9th Circuit court's finding. It will also be filing a motion to dismiss
based on double jeopardy grounds.
Discussion held regarding the parties trying the case in the media. The Court indicates
that both sides shall act professionally and ethically. The Court is not ready to issue a gag order
about this case. The Court invites the parties to file a written motion about this issue if they
believe there is enough facts to support a gag order.
IT IS ORDERED setting this matter for Firm Trial on February 2, 2015 at 10:30 a.m. in
this division.
IT IS FURTHER ORDERED setting Final Trial Management Conference (FTMC) on
January 23, 2015 at 8:30a.m. before Judge Rosa Mroz.
Docket Code 027
Form R027
Page 2
CR 1989-0 12631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
Case Management Orders
The Court has reviewed the case management plan.
09/23/2013
IT IS ORDERED setting the following schedule for disclosure, discovery, and pre-trial
procedures unless the parties obtain written modifications from the Court:
Please note that the Court requires that the disclosure of information required for the
aggravation and penalty phases under Criminal Rules 15.1(i) and 15.2(h) to be specific.
1
The Court considers disclosures stating that the party will call the same witnesses and
present the same evidence as those presented in the guilt phase to be DEFICIENT.
1. The State shall disclose the specific information required to be disclosed under
Criminal Rule 15.1(i)(3)(aggravation phase) by November 1, 2013.
2. The defense shall disclose the specific information required to be disclosed under
Criminal Rule 15.2(h)(l )(mitigating circumstances; aggravation and penalty phase)
by Apri130, 2014.
3. The State shall disclose the specific information required to be disclosed under
Criminal Rule 15.1 (i)(5)(penalty phase and rebuttal for aggravation phase) by June
30,2014.
4. The defense shall disclose the specific information required to be disclosed under
Criminal Rule 15.2(h)(3)(rebuttal to penalty phase and surrebuttal for aggravation
phase) by August 29,2014.
5. All witnesses shall be interviewed by October 3, 2014.
6. All documents requiring translation shall be submitted to Court Interpretation and
Translation Services (CITS) by October 3, 2014. The parties shall advise the Court
and CITS of any interpreter needs by December 2, 2014.
7. All substantive motions shall be filed by November 21, 2014.
8. All motions in limine shall be filed by January 9, 2015, and Responses filed by
January 20, 2015.
1
For the State, the Court expects specificity as to witnesses and exhibits that will support each aggravating
circumstance alleged.
Docket Code 027 Form R027 Page 3
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/23/2013
9. The Court will provide the parties with its proposed jury questionnaire. The parties
may submit any proposed amendments to the Court's proposed jury questionnaire by
January 9, 2015.
10. The parties shall file proposed jury instructions at least one week before the Final
Trial Management Conference.
IT IS FURTHER ORDERED that motions in limine shall be filed as follows:
A. Motions in limine shall be consecutively numbered in the caption identifying the
party filing it and the subject of the motion; e.g. "Defendant's Motion in Limine
No. 1 Re: Gang Affiliation."
B. Each motion in limine shall deal with one discrete subject.
C. DO NOT combine a motion in limine with ANY other motion.
D. DO NOT file a "cross-motion in limine."
E. Label responses to motions in limine by identifying the number and subject of the
motion being responded to; e.g. "State's Response to Defendant's Motion in
Limine No. 1 Re: Gang Affiliation."
F. DO NOT respond to more than one motion in limine in each response.
IT IS FURTHER ORDERED that all exhibits shall be exchanged 30 days
before trial. Counsel shall confer regarding exhibits so duplicates are avoided. At least
one week before trial, counsel shall submit all exhibits to the clerk of the division for
marking.
Trial Management Order
PURPOSE: These trial procedures are designed to enhance jury comprehension of the
facts and issues; to assist counsel in making the maximum, effective use of their trial time; and to
assure the "just, speedy and inexpensive determination" of the parties' dispute.
IT IS ORDERED:
Docket Code 027
Form R027
Page 4
CR I989-0 I263I
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/23/20I3
I. Voir dire. This Court uses individual voir dire in capital cases. Counsel may
conduct a limited and reasonable examination of each potential juror following the Court's
questioning. In the normal case, 5 minutes per side is considered reasonable. Jury
"conditioning" will not be allowed.
2. Notification of order of proof. Each side shall notify the other on a "rolling"
forty-eight hours' basis of the order in which witnesses will be called. From time to time,
counsel may be asked to inform the jury of their order of proof. (Witnesses may be scheduled
out of order on agreement of counsel or, if necessary, by order of Court.)
3. Jury questions will be reviewed with counsel and, if appropriate, answered at the
first available opportunity.
4. Expert opinions. Counsel are strongly encouraged to elicit the expert's opinion at
the earliest, available opportunity. The hypothetical question has been abolished, and the
witness' qualifications should be quickly established. In the first ten minutes, the jury should
know who the witness is and why the witness is present.
5. Objections shall be stated succinctly and clearly without extended comment or
argument. Speaking objections will not be allowed. Although the court will allow
contemporaneous making of the record outside of the presence of the jury, consider the
frequency of these requests as it may affect the jury's perception of your case.
6. Permission to approach and/or publish. Counsel need not ask the Court's
permission to approach the clerk or a witness, nor need counsel ask the Court's permission to
publish or pass an exhibit which has been received in evidence to the jury.
7. Microphones. Because of the acoustics of our courtroom, it is often difficult to
hear a speaker. For the benefit of the jurors and court staff, it is appreciated if all speakers use
the assistance of a microphone, whether at the podium or the attorney tables. A microphone is
also provided for witnesses.
8. Technology, Counsel are encouraged to make maximum, effective use of the
many forms of trial and courtroom technology which are available. Counsel should ensure that
the technology is appropriately set up and working properly before its use is attempted in court.
9. Daily schedule. A trial day is from I 0:30 a.m. to 4:30 p.m., with lunch usually
from noon until I :30 p.m., one fifteen-minute break in the morning and one in the afternoon.
Docket Code 027
Form R027
Page 5
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
09/23/2013
10. Trial interruptions. Trial will not be interrupted for discussion of legal matters.
The Court is available daily before and after trial and during regular recesses to consider such
matters.
IT IS FURTHER ORDERED affirming prior release conditions/orders.
1 :56 p.m. Matter concludes.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
Docket Code 027
Form R027
Page 6
EXHIBITG
CR 1989-012631
HON. ROSA MROZ
STATE OF ARIZONA
v.
DEBRA JEAN MILKE (A)
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
Michael K. Jeanes, Clerk of Court
*** Filed ***
01/22/2014
CLERK OF THE COURT
J. Matlack
Deputy
VINCE H IMBORDINO
MICHAEL D KIMERER
LORI L VOEPEL
CAPITAL CASE MANAGER
UNDER ADVISEMENT RULING
Defendant's Motion to Dismiss
The Court has considered Defendant's Motion to Dismiss on Double Jeopardy Grounds,
the State's Response, and Defendant's Reply.
The Defendant's son was murdered on December 2, 1989. In 1990, a jury convicted the
Defendant of that murder. The only direct evidence linking the Defendant to the murder is the
Defendant's alleged confession to (now retired) Phoenix Police Detective Saldate. Saldate did
not record the alleged confession nor were there any other witnesses to this confession. The
Defendant maintained that she invoked her right to counsel and denied making a confession.
Thus, the credibility of Saldate and the Defendant was an important issue at the trial.
On March 14, 2013, the Ninth Circuit Court of Appeals set aside the Defendant's
conviction based on the prosecution's Brady/Giglio violation in failing to disclose impeachment
evidence related to Saldate. Brady v. Maryland, 83 S.Ct. 1194 (1963); Giglio v. United States,
92 S.Ct. 763 (1972). The Ninth Circuit opinion detailed Detective Saldate's various instances of
misconduct, ranging from lying to internal affairs investigators and lying under oath, to
violations of various defendants' Fourth and Fifth Amendment rights, and ruled that the
information regarding these instances of misconduct were Brady material that should have been
disclosed to the defense. See Milke v. Ryan, 711 F.3d. 998 (9th Cir. 2013). The Ninth Circuit
directed that the materials be provided to the Defendant, and directed that a new trial be held. !d.
Docket Code 926
Fonn ROOOA
Page 1
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
01/22/2014
A reversal does not generally bar retrial. See State v. Moody, 208 Ariz. 424, 439, 94P.3d
1119, 1134 (2004) (en bane); North Carolina v. Pearce, 395 U.S. 711,719-720 (1969), reversed
on other grounds by Alabama v. Smith, 490 U.S. 794 (1989); Ball v. United States, 163 U.S. 662,
672 (1896).
The Defendant argues that because her conviction was reversed as a result of the State's
knowing misconduct and not by her actions, her retrial is barred by the Double Jeopardy Clause
of the United States and Arizona Constitutions, relying on State v. Minnitt, 203 Ariz. 431, 55
P.3d 774 (2002) and Pool v. Superior Court In & For Pima Cnty., 139 Ariz. 98,677 P.2d 261
(1984). In Minnitt, the Arizona Supreme Court determined that the prosecutor's calculated
deception in offering false testimony to bolster the credibility of a key witness, and then arguing
that evidence to the jury, implicated double jeopardy protections and barred retrial:
This case is an anomaly; egregious prosecutorial misconduct occurred in Minnitt's first
two trials, but the third trial, conducted by a new prosecutor and allegedly free of
misconduct, resulted in a conviction. We note, however, that whether or not the third trial
was free from false testimony, falsehoods in the two previous trials permeated the process
to the extent that fairness in the third trial could not correct the misdeeds of trials one and
two.
In most instances, the remedy for prosecutorial misconduct is a new trial. See State v.
Towery, 186 Ariz. 168, 185,920 P.2d 290,307 (1996); State v. Atwood, 171 Ariz. 576,
611, 832 P.2d 593, 628 (1992). However, the record in the instant case is now replete
with evidence that the prosecutor, with full knowledge, introduced false testimony in two
trials and thus seriously damaged the structural integrity of both. The inevitable
conclusion is that the prosecutor was aware that his actions would deprive Minnitt of a
fair trial. We announce today's ruling not to sanction the prosecutor, but to protect the
integrity of the justice system.
!d. at 440, 55 P.3d at 783.
Pool also requires that prosecutorial misconduct be "egregiously improper" leading to the
conclusion "that the prosecutor intentionally engaged in conduct which he knew to be improper,
[and] that he did so with indifference, if not a specific intent, to prejudice the defendant." Pool,
139 Ariz. at 109, 677 P.2d at 272. "To determine whether a prosecutor's actions were knowing
and intentional, the court must consider objective factors, including the situation in which the
prosecutor found himself, the evidence of actual knowledge and intent and any other factors
which may give rise to an appropriate inference or conclusion." !d. at 108, n.9, 677 P.2d at 271,
n.9.
Docket Code 926
Form ROOOA
Page 2
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
01122/2014
The Court is mindful that the Ninth Circuit determined that the prosecutor had a '"duty to
learn of any favorable evidence known to the others acting on the government's behalf in the
case, including the police ... ' [and then concluded that] what happened here is more akin to
active concealment. (Internal citation omitted)." Milke, 711 F .3d at 1006. The Court has studied
this case extensively. The Court does not have any evidence that the prosecutor's actions
constituted active concealment. The Court notes that the prosecutor's decisions regarding
dissemination of materials related to Sal date were guided by Judge Hendrix, both at trial and
during post-conviction proceedings. Judge Hendrix determined that discovery obligations did
not implicate the materials sought by the Defendant; the standard (discovery rather than
disclosure) and the decision (not to provide material to Defendant), were determined to be error
by the Ninth Circuit. The Court declines to impute bad faith to either the prosecutor or to the
trial court.
The Defendant also argued that "prosecutors handling murder cases with the Maricopa
County Attorney's Office knew of Sal date's misconduct in multiple cases ... " and intentionally
failed to disclose the information. The Court is familiar with the manner in which the Maricopa
County Attorney's Office (MCAO) functions
1
: MCAO is a very large office with many deputy
county attorneys
2
, most of whom have very heavy caseloads. It is not a given that prosecutors
know what is going on in each other's cases. The three cases cited by the Defendane were not
handled by the prosecutor in this case, Noel Levy. It was handled by Paul Rood. There is no
evidence that Mr. Levy and Mr. Rood shared information about their cases. It is speculative that
Levy must have known what was going on in Rood's cases.
Based on the existing information, the Court cannot conclude that the prosecutor
intentionally engaged in conduct which he knew to be improper, or that he did so with
indifference, if not a specific intent, to prejudice the Defendant. The Court concludes that the
Brady/Giglio violation was not sufficiently egregious to implicate the double jeopardy protection
afforded by either the Arizona or U.S. Constitutions. The Court further concludes that the
remedy imposed by the Ninth Circuit, disclosure of the impeachment materials and a new trial, is
sufficient.
IT IS ORDERED denying Defendant's Motion to Dismiss on Double Jeopardy
Grounds.
1
This judge was a former prosecutor with MCAO from 1995 to 1999. As a judge, the Court has presided over
countless number of criminal cases prosecuted by MCAO.
2
MCAO is a large prosecuting agency with many prosecutors and trial bureaus. Even back in 1991, there were 150
deputy Maricopa County Attorneys. State ex. rei. Romley v. Gottsfield (Fulminante), 171 Ariz. 195, 196, 829 P.2d
1241 (App. 1992).
3
The cases are State v. Jones, CR90-05217, State v. King, CR90-00050, and State v. Mahler, I-CA-CR90-1890.
Docket Code 926 Form ROOOA Page 3
CR 1989-012631
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
01/22/2014
State's Motion for Clarification and Reconsideration of Judicial Order
The Court has considered the State's Motion for Clarification and Reconsideration of
Judicial Order. The Court stated in its introduction paragraph of the ruling all of the things that
the Court considered. Specifically, the Court believes that the Ninth Circuit opinion, the
Defendant's Responses, and Saldate's Responses clearly sets forth why Detective Saldate has a
legitimate reason to fear prosecution.
IT IS ORDERED denying the State's Motion.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
Docket Code 926
Form ROOOA
Page4
EXHIBITH
LORI VOEPEL
From:
Sent:
To:
Cc:
Subject:
Imbordino Vince <IMBORDIN@mcao.maricopa.gov>
Friday, January 31, 2014 11:35 AM
LORI VOEPEL; 'MDK Kimerer, Michael' (MDK@kimerer.com)
Nageotte Sandra
special action
I had anticipated it would be filed today. it is in the process of being reviewed for edits by several people to insure
accuracy and narrowing the issues for focus. I have been asked to advise it will be filed no later than wed. next week.
I apologize for the delay
1
EXHIBIT I
LORI VOEPEL
From:
Sent:
To:
Cc:
Subject:
Imbordino Vince <IMBORDIN@mcao.maricopa.gov>
Tuesday, February 04, 2014 1:30 PM
Nageotte Sandra
'MDK Kimerer, Michael' (MDK@kimerer.com); LORI VOEPEL; Meloche Diane
status of special action
Please advise the court that apparently I should have not been giving so optimistic a deadline for the filing of our special
action. Diane Meloche who is in charge of our appellate section is working on it herself. Due to complexity the original
assigned deputy county attorney asked her for assistance. She is now working on it full time and will get it filed as soon
as she can. Despite her other duties she is making this her priority and it will be done as quickly as it can be but not
before it is done properly.
I apologize for my having been too optimistic. Obviously this matter is of great importance. I hope the court understands
we are not delaying. That would serve no purpose to us or anyone.
However, we received the Court's ME denying reconsideration less than 2 weeks ago and that the Rule of Special Action
do not impose a time limit for filing. Regardless we are working as quickly as possible. As all of you know, in a Special
Action we have to compile the "record on appeal" (the record that court of appeals has to work with is only what the
parties provide) which preparation in itself will be a considerable undertaking.
If defense counsel feels the necessity to file motions on this issue I cannot stop them and we will respond. However I
believe it is to everyone's benefit if the pleadings are as focused and concise and correct to avoid wasting the court of
appeals time as well as defense counsel given the effort needed to respond to the special action.
1