Arizona Civil Liberties Union

     The decision whether to grant to a third party to file a brief as amicus curiae is not governed by any specific rule in the Federal District Court. Instead, "The district court has broad discretion to appoint amici curiae." Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982).

     Courts generally look to several factors in guiding the decision to appoint amicus curiae to a case: "(1) the amicus has a special interest in the particular case, (2) the amicus' interest is not represented completely or at all in the case, (3) the proffered information is timely and useful, and (4) the amicus is not partial to a partial outcome in the case." United States v. Alkaabi, 223 F. Supp. 2d 583, 592 (D.N.J. 2002) (citation omitted).

     In this habeas proceeding, Ms. Milke challenges the constitutionality of her conviction and death penalty sentence. One of the issues raised is the Constitutionality of uncorroborated confessions obtained under circumstances that raise serious doubts as to the confession's existence much less its freedom from coercion. This raises significant federal Constitutional issues of due process and guarantee against self-incrimination with which the AzCLU/F has a special interest.

     The AzCLU/F is a non-profit organization and is the statewide affiliate of the American Civil Liberties Union. Since 1959, the AzCLU/F has advocated for the rights of Arizonans under the United States and Arizona Constitutions, and the AzCLU/F cooperating counsel represented the defendant in the landmark case of Miranda v. Arizona. Both cooperating attorneys have also developed a very high level of expertise in the criminal and Constitutional law, and are highly respected attorneys in Arizona. AzCLU has also developed special expertise and knowledge of the constitutional issues in the present case. We have read the briefs of Ms. Milke and The State in this matter.

     The interest the AzCLU/F has in this matter involves the Constitutional arguments regarding the admissibility of uncorroborated confessions. While the defendant in this matter is ably represented in the voluminous briefs already submitted, the Constitutional arguments the AzCLU/F intends to make could only add to the Court's understanding of this rapidly changing area or law. At this time, for example, there are several states that have adopted a rule mandating the electronic recording of an interrogation in order for it to be admissible. See, e.g., Stephan v. State, 711 P.2d 1156 (Alaska 1985), State v. Scales, 518 N.W. 2d 587 (Minn. 1994), Vernon's Ann. Texas Code of Crim. Pro. Art. 38.22. Moreover, this is a case in which a woman's life is at stake. The U.S. Supreme Court has recognized the "truly awesome responsibility" associated with death penalty cases. Caldwell v. Mississippi, 471 U.S. 320, 329 (1985).

     The AzCLU/F's motion is timely. Briefs have been submitted by the parties and reviewed by the AzCLU/F. A hearing has not been scheduled.

     Finally, the cases in which leave to file amicus has been denied on the basis of partiality to the outcome of the litigation have involved the amicus having a financial interest in the outcome of the case. See e.g., American Satellite Co. v. United States, 22 Cl. Ct. 547, 549 (1991) (denying leave to corporation which had its own administrative pending against the defendant, and a favorable outcome in the case would have benefited that other matter). That is of no concern here.

     For these reasons, the AzCLU/F respectfully requests leave of the Court to participate as amicus curiae and to file a brief in support of Debra Milke.

Dated this 17th day of May, 2003.

Please click here to read the actual amicus brief
of the American Civil Liberties Union, Chapter Arizona
in Debra Milke's case!