Defense Appeals

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Appeal to the Arizona Supreme Court is automatic on the death sentence and Debra Milke also appealed the other convictions and sentences. The automatic appeal was assigned to JAMES H. KEMPER, Deputy Public Defender, Maricopa County, Phoenix, Arizona. Almost from the start of appeal proceedings difficulty surfaced in preparing the briefs. MR. KEMPER originally planned to submit the appeal by mid-1992. However, on July 20th, 1992, he requested an extension to September 11th, 1992 - "due to counsel's heavy caseload of approximately 70 cases" he needed more time. On September 11th, he again requested an extension to September 21st, 1992, because his secretary was on vacation. On September 21st, he asked for an extension to September 24th, because of the size of the state's brief (77 pages with 74 case citations). On September 23rd he sent Debra a copy of the combined brief he would submit. The Supreme Court notified him on October 1st, 1992, that the case would be argued at the next available hearing date. On October 15th, they vacated that order and gave both sides until October 19th to file. On November 6th, they granted the State an extension until November 19th. Both sides were notified on November 24th that the case would be argued at next available date. Arguments were finally made on May 6th, 1993.

Issues presented on Appeal :
1. Whether it was error to strike one of the veniremen (juror) for cause (he was opposed to the death penalty)
2. Whether the jury instruction on motive constituted fundamental error (incomplete instruction to jury on motive)
3. Whether the child abuse conviction is based upon sufficient evidence
4. Whether Arizona's death penalty statue is unconstitutional because :: a. The jury does not determine whether aggravating factors exist in capital cases, and; b. The sentencing court's discretion is not adequately channeled
5. Whether the death penalty was properly imposed in this case

Issues presented on Cross-Appeal :
6. Whether the trial court erred by refusing to admit co-defendant's (ROGER) SCOTT'S confession at Milke's sentencing hearing
7. Whether the trial court imposed an illegal sentence when it sentenced Milke to a concurrent rather than a consecutive sentence for child abuse
8. Whether the trial court imposed an illegal sentence for conspiracy to commit first degree murder when it sentenced Milke pursuant to A.R.S. 1003 rather than pursuant to A.R.S 13-703(A)

On December 21, 1993, the Arizona Supreme Court ruled that :

defendant waived any objection to excusal of venireperson for cause;
incomplete motive instruction was not fundamental error;
defendant should not have been convicted of separate child abuse offense based upon pre-meditated murder of child; and
death sentence was proper. Vacated in part; affirmed in part.

Final Disposition as stated by Vice Chief Justice JAMES MOELLER in handing down the ruling on the case : "We have searched the record for fundamental error. Pursuant to that search, we vacated the conviction for child abuse. We affirm the convictions for murder, conspiracy, and kidnapping. Although we vacate the trial court's finding of pecuniary gain as a statutory aggravating factor, we nevertheless affirm the Death Penalty on the murder count. We affirm the other sentences." (CORCORAN, ZLAKET AND MARTONE, J.J. AND McGREGOR, Judge, Court of Appeals, concur.)

In April, 1994, JAMES S. LIEBMAN of the Columbia University School of Law submitted a petition for Writ of Certiorari to review the judgment of the Arizona Supreme Court upholding Debra Milke's death sentence on the basis the court violated the Eighth and Fourteenth Amendments of the Constitution to the United States Supreme Court. This petition was denied by the United States Supreme Court.

On November 1st, 1995, Debra Milke, through her attorney, ANDERS V. ROSENQUIST, JR. submitted the petition for Post Conviction Relief (PCR) to the Arizona Superior Court and also submitted a request for change of Judge for the PCR proceedings. Basis for this petition was allegations that JUDGE HENDRIX was biased in her conduct of the trial and other allegations regarding the trial proceedings may require the trial judge to act as a witness in this matter. The State filed a Response and the Defendant filed a Reply on March 14th, 1996. While the Petition was pending ROSENQUIST filed a Special Action with the Supreme Court. The Special Action sought a ruling disqualifying the trial court from ruling on the Petition for Post-Conviction Relief [i.e. to remove Judge CHERYL K. HENDRIX from hearing and ruling on this appeal]. At the request of ROSENQUIST the Superior Court of Arizona, Maricopa County, did not review or attempt to rule on the Amended Petition for Post-Conviction Relief while the Special Action was pending. The Arizona Supreme court denied the Petition for Special Action. The Petition was presented once again before the original presiding judge, Judge HENDRIX.

Petition for Post-Conviction Relief raised the following issues :

1. THE OVERREACHING TACTICS OF PHOENIX POLICE DETECTIVE ARMANDO SALDATE DEPRIVED DEBRA MILKE OF HER CONSTITUTIONAL RIGHTS AGAINST SELF-INCRIMINATION, DUE PROCESS, A FAIR TRIAL AND A JUST SENTENCING DETERMINATION.: a. THE INTERROGATION METHODS EMPLOYED BY POLICE DETECTIVE ARMANDO SALDATE RENDERED THE RESULTS OF HIS INTERROGATION OF DEBRA MILKE UNRELIABLE AND VIOLATED DEBRA MILKE'S RIGHT TO DUE PROCESS.; b. DETECTIVE SALDATE'S INTERVIEW TECHNIQUES ACTED TO BIAS WITNESSES AGAINST DEBRA MILKE AND DENIED HER RIGHT TO A FAIR TRIAL.
2. REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEBRA MILKE DUE PROCESS, A FAIR TRIAL, AND A FAIR SENTENCING DETERMINATION.: a. THE PROSECUTOR ENGAGED IN DISCOVERY VIOLATIONS THAT AMBUSHED THE DEFENSE AND DENIED DEBRA MILKE'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL.; a.1. THE LATE TIMING OF THE STATE'S NOTICE OF INTENT TO SEEK DEATH PREJUDICED PETITIONER (DEBRA MILKE).; a.2. THE PROSECUTOR REPEATEDLY RELEASED IMPORTANT DISCOVERY IN AN UNTIMELY MANNER THAT PREJUDICED PETITIONER'S EFFORTS TO DEFEND HERSELF.; a.3. THE PROSECUTOR'S FAILURE TO PROPERLY OR TIMELY NOTICE PETITIONER OF HIS INTENT TO CALL DOROTHY MARKWELL AS A REBUTTAL WITNESS PREJUDICED PETITIONER IN THE PREPARATION AND PRESENTATION OF HER DEFENSE.; a.4. THE PROSECUTOR REPEATEDLY MISSTATED PRIOR TESTIMONY AND ENGAGED IN IMPROPER, INFLAMMATORY QUESTIONS AND ARGUMENT RESULTING IN PREJUDICE TO DEBRA MILKE DENYING HER CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
3. THE ERRORS OF THE TRIAL COURT IN THE CONDUCT OF PETITIONER'S TRIAL AND SENTENCING INFRINGED UPON HER RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND JUST SENTENCING PROCESS.: a. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE RESULTS OF THE IMPROPER AND UNCONSTITUTIONAL POLICE INTERROGATION.; b. THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE FULL IMPEACHMENT OF THE INTERROGATION OFFICER.; c. THE TRIAL COURT ERRED IN FAILING TO PERMIT DEFENSE COUNSEL TO CALL THE EXPERT HE RETAINED AS A WITNESS IN THE VOLUNTARINESS HEARING.; d. THE TRIAL COURT VIOLATED DEBRA MILKE'S RIGHT TO PRESENT A DEFENSE BY PRECLUDING HER FROM CALLING CERTAIN DEFENSE WITNESSES.; e. THE TRIAL COURT REPEATED (SIC) FAILED TO ALLOW PETITIONER THE FUNDS NECESSARY TO MOUNT AN ADEQUATE DEFENSE.; f. THE TRIAL COURT REPEATEDLY ALLOWED THE PROSECUTOR TO ENGAGE IN IMPROPER AND PREJUDICIAL ARGUMENTS AND QUESTIONING.; g. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT HEARSAY EVIDENCE OF CO-DEFENDANT'S STATEMENTS.; h. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT THE AMBUSH TESTIMONY OF DOROTHY MARKWELL.; i. THE TRIAL COURT ERRED IN SEATING JURORS WITH CONFLICTING VACATION PLANS, RUSHING THIS TRIAL TO COMPLETION, AND IN ACCUSING DEFENSE COUNSEL OF ENGAGING IN "STALL TACTICS".
4. DEFENSE COUNSEL WAS SO DEFICIENT IN HIS REPRESENTATION OF DEBRA MILKE DURING HER TRIAL AND SENTENCING AS TO DENY HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.: a. DEFENSE COUNSEL'S OVERALL INVESTIGATION OF HIS CASE WAS SO DEFICIENT THAT PETITIONER WAS PREJUDICED BY HIS SUBSTANDARD PERFORMANCE.; b. DEFENSE COUNSEL'S INVESTIGATION AND CROSS- EXAMINATION OF MATERIAL WITNESS ARMANDO SALDATE WAS SO DEFICIENT THAT PETITIONER WAS SIGNIFICANTLY PREJUDICED.; c. DEFENSE COUNSEL'S WAIVER OF PETITIONER'S RIGHT TO CHANGE OF VENUE BASED ON PREJUDICIAL PRETRIAL PUBLICITY COMPRISED INEFFECTIVE ASSISTANCE OF COUNSEL.; d. PETITIONER WAS DEPRIVED OF HER RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO PRESENT A DEFENSE WHEN HER ATTORNEY RETAINED AN EXPERT WHOSE QUALIFICATIONS AND PERFORMANCE WERE SUBSTANDARD.; e. DEFENSE COUNSEL'S MOTION TO SUPPRESS PETITIONER'S STATEMENTS AND HIS CONDUCT OF THE VOLUNTARINESS HEARING, A CRITICAL ELEMENT OF HER DEFENSE, WAS SO INCOMPETENT AS TO BE INEFFECTIVE ASSISTANCE OF COUNSEL.; f. DEFENSE COUNSEL'S CONDUCT OF PETITIONER'S TRIAL WAS SUBSTANDARD.; f.1. DEFENSE COUNSEL'S OPENING AND CLOSING ARGUMENTS WERE DEFECTIVE.; f.2. DEFENSE COUNSEL'S FAILURE TO RAISE COGENT, TIMELY OBJECTIONS PREJUDICED PETITIONER.; g. DEFENSE COUNSEL FAILED TO INVESTIGATE OR PRESENT THE AMPLE MITIGATION EVIDENCE AVAILABLE IN PETITIONER'S CASE.
5. DEBRA MILKE WAS DENIED HER CONSTITUTIONAL RIGHTS TO A REPRESENTATIVE JURY.
6. THE TRIAL COURT'S DENIAL OF PETITIONER'S MOTION TO ACQUIT HER IMPOSITION OF THE DEATH PENALTY, AND THE ARIZONA SUPREME COURT'S AFFIRMATION OF DEBRA MILKE'S CONVICTION AND DEATH SENTENCE VIOLATED HER CONSTITUTIONAL RIGHTS.: a. THE TRIAL COURT IMPROPERLY CONSIDERED VICTIM IMPACT INFORMATION.; b. THE HEINOUS, CRUEL OR DEPRAVED AGGRAVATING CIRCUMSTANCE IS UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF PETITIONER'S CASE.; c. DEBRA MILKE'S DEATH SENTENCE MUST BE VACATED BECAUSE THE TRIAL COURT IMPROPERLY HELD THE AGE OF THE VICTIM TO BE A SEC. 13-703(F) (6) AGGRAVATING FACTOR AS WELL AS A SEC 13-703 (F) (9) AGGRAVATING FACTOR.; d. ARIZONA'S DEATH PENALTY FAILS TO PROVIDE GUIDANCE REGARDING THE WEIGHING PROCESS TO THE SENTENCING COURT.; e. THE DEATH PENALTY IS CRUEL AND UNUSUAL PUNISHMENT.; f. IN ARIZONA, THE DEATH PENALTY IS IMPOSED ARBITRARILY AND IRRATIONALLY.
7. THE AGGREGATE ERRORS IN PETITIONER'S TRIAL, SENTENCING, AND APPEALS VIOLATED HER CONSTITUTIONAL RIGHTS.
8. DEBRA MILKE WAS DENIED HER RIGHTS BY THE ARIZONA SUPREME COURT'S FAILURE TO DETERMINE WHETHER HER SENTENCE WAS PROPORTIONATE TO SENTENCES HANDED DOWN IN OTHER CASES.
9. DEBRA MILKE WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL.

No action was taken on the PCR initially since the petition to the Arizona Supreme Court was pending and was not ruled on until May 22, 1996, when the Supreme Court denied to accept jurisdiction on the petition. Following that decision the PCR was expected to be ruled on within a couple months. No decision came forth in that time frame. Defendant's attorney and the Attorney General's attorneys were led to believe a decision had been signed in September. However, for whatever reasons, nothing came forward. Speculation was that the election in November was the principal reason, as releasing it before then could backfire no matter what Judge HENDRIX' decision was. It would draw attention to the case and her conduct.

Since no decision had been rendered, Debra Milke wrote the following letter to Judge HENDRIX dated October 4th, 1996 :

"Dear Judge Hendrix :

I am writing this letter to you and sending it without the knowledge of my attorney, Anders Rosenquist. I realize this probably goes against any and all advice a lawyer would give a client and Mr. Rosenquist would most likely not approve of this, but I feel compelled to write to you.

I understand you must be busy with other caseloads as well as mine and this letter isn't, in any way, being sent to antagonize you. I am approaching you as a human being with emotion and feeling. I know my PCR has been submitted, but Mr. Rosenquist or anyone else isn't me; therefore, no one can possibly understand what I am going through.

I want you to know, Judge Hendrix, that I did not participate in the murder of my son, Christopher. James Styers and Roger Scott are responsible for my son's death. In December it will be seven years since his death and I still haven't been able to deal with it in a proper manner. The pain and grief is immense and unimaginable and I must begin my healing process but I'm unable to because I've been fighting for my life all this time.

This entire tragedy has been unbearable both personally and legally. I'm asking you to please allow me the opportunity to clear myself of the wrongdoing I am accused of. I'm only seeking justice. I don't want to delve into my PCR but I want you to know that Mr. Saldate lied when he wrote that police report claiming I made a confession to him. I never made a confession to that man or to anyone else because I was not a participant in this crime. I believe Mr. Saldate saw an opportunity to make headlines while he was in Phoenix and had ulterior motives on his way to Florence. His unscrupulousness didn't end there. With all due respect, Judge Hendrix, to me it doesn't take a lawyer or Judge to realize that Mr. Saldate was deceitful in his ways after one reviews the facts and sees the bigger picture.

In my affidavit, I didn't discuss my innermost feelings about my son, but you must know I loved him dearly and deeply. Christopher was everything to me and I always tried to do the very best for him. I'm not claiming I was the perfect parent, but I was a responsible one. Christopher's welfare was most important to me because I loved him. Judge Hendrix, I was a single parent who worked hard, sometimes two jobs, to provide for Chris and to better myself. I didn't rely on welfare, abuse drugs, run the streets and get into trouble. I took my responsibility as a parent very seriously because I loved my child.

Despite my former husband's drug problems, I wanted my son to know his father. I didn't harass Mark for child support he rarely paid because money wasn't important to me. What was important was that my son and his father have a relationship, which I always tried to encourage when Mark was going through his sobriety. Is that so bad ?

I tried so hard to alleviate as much dysfunction as possible from Christopher's presence and when Mark became increasingly difficult to reason with, I chose to move away with Chris to Tempe so he could have normalcy in his life. I did not conspire with anyone to have my son murdered. I loved him very much.

Also, I had absolutely no inclination that James Styers was potentially homicidal or could be dangerous. I wouldn't have subjected my child to a person like that or accepted his offer to move Chris and I into his apartment on a temporary basis had I known what he was really like. James Styers masked his true self.

Your Honor, I can't possibly express everything. I've thought that sending this letter is probably unprofessional and/or unethical but I'm not a lawyer. I'm a mother who lost her only child to a murder and I've been falsely accused as a participant and wrongly convicted. This is a double tragedy.

I'm asking you to please look at the whole picture and to please grant me the chance to finally resolve the gross injustice that was placed upon me. I need to have this legal nightmare over with so I can begin the enormous healing process that lies ahead of me.

As frustrating as the legal system is, I have to hope and believe that truth and justice are still synonymous.

Thank you very much for taking the time to read this letter.

Sincerely,
Debbie Milke"

On November 2nd, 1995, the Honorable RONALD S. REINSTEIN of the Arizona Superior Criminal Court did not concur with the request. The Appeal to the Honorable MICHAEL D. RYAN was likewise denied and referred all future action to Judge Hendrix. On March 20th, 1996, Judge HENDRIX again denied Request for Change of Judge for Cause. On April 3rd, 1996, a petition for special action was submitted to the Arizona Supreme Court. On May 22nd, 1996, the Arizona Supreme Court declined to accept jurisdiction of this special action and referred the Post Conviction Relief (PCR) back to Judge HENDRIX' court.

On November 18th, 1996 Judge CHERYL K. HENDRIX ruled :

"The Court finds that the amended Petition for Post-Conviction Relief DOES NOT RAISE ANY FACTUAL ISSUES. Because no factual issues have been raised there is no need for any Evidentiary Hearing. The Petitioner would be entitled to an Evidentiary Hearing if a colorable claim, a claim which if true MIGHT HAVE CHANGED THE OUTCOME, had been presented. The court is unable to find any colorful claim. The court is unable to find any merit in any of the issues raised by the defendant. The court finds further proceedings would not serve any useful purpose. It is ordering dismissing hte amended petition."

A petition for review in the Supreme Court [because it is a Death Penalty case] was initiated by Defendant's attorney, ANDERS ROSENQUIST. On March 19, 1997, the Arizona Attorney General's office began a series of requests to the Superior Court to strike the petition because it violated Arizona's Rules of Criminal Procedure by exceeding the allowed limit of 20 pages (it was 37 pages in length). Attorney ROSENQUIST responded on May 5th, 1997 to the claim and also filed a request that would order the case to the Supreme Court for review. A response was presented to the Supreme Court by Attorney ROSENQUIST on May 23, 1997. On June 5th, 1997 the motion to allow petition to exceed 20 pages was denied but ordered Defendant Milke shall file a new petition for review complying with the Rules of Criminal Procedure on or before July 7, 1997.

The new petition concluded :

"The trial court's sweeping summary dismissal of everyone on Petitioner's claims is clear and manifest error. "Death is different" and Petitioner's claims are worthy of hearing by an impartial and disinterested judge. The trial court has parsed out every claim and weighed it separately, outside the context of the entirety of this trial. Some of the errors, standing alone, admittedly fail to rise to the level of incompetence and prejudice needed to reverse a conviction. Considered in total, however, with the context of this capital prosecution in which Petitioner's life is on the line, these errors have served to deprive Petitioner of her constitutional right to due process. The prejudice that has accrued to Petitioner as a result of these numerous errors is inescapable. Petitioner's convictions and sentence must be overturned due to the unconstitutional bias of the trial court, the prosecutor's egregious and repeated instances of misconduct, and her trial and appellate counsel's ineffective assistance. Based on the foregoing, the Petitioner requests this Court to :

find that the trial judge was biased and enter an order transferring this case to another court for all further proceedings, and
reverse the case and remand it for a new trial and order the suppression of the Petitioner's statements to police based on evidence contained in the record; or
reverse the case and remand it for a new trial based on evidence contained in the record; or
remand the case for a full and fair hearing of all of the issues raised in the petition for Post-Conviction Relief.

There was no response from the Supreme Court until December 19th, 1997, when they handed down their decision with a WARRANT OF EXECUTION ! It stated "The appeal in the above-entitled cause was heard and fully considered by this Court on the 6th day of May, 1993, and having finally decided the cause, this Court on the 21st day of December, 1993, did affirm Appellant's conviction for murder, conspiracy, and kidnapping and the death penalty on the murder count imposed by the Superior Court of Maricopa County, State of Arizona, and did file its opinion, which opinion is now of record in this Court, is still in effect, and, as shown by this Court's record, has not been stayed or affected by any subsequent decision of this or any other court.

On December 16th, 1997, following the denial of relief in Appellant's first Post-Conviction proceeding, this Court denied Appellant's petition for review filed pursuant to Rule 32.9 0, Arizona R. Crim, P. Therefore, pursuant to Rule 31.17 0, Ariz. R. Crim. P.

IT IS ORDERED, that, Thursday, the 29th day of January, 1998, be and the same is hereby fixed as the time when the judgment and sentence of death pronounced upon the appellant, DEBRA JEAN MILKE, by the Superior Court of Maricopa County, State of Arizona, shall be executed by administering to DEBRA JEAN MILKE an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, except that DEBRA JEAN MILKE shall have the choice of either lethal injection or lethal gas ... "

This warrant was signed by THOMAS A. ZLAKET, Chief Justice, CHARLES E. JONES, Vice Chief Justice, and Justices STANLEY FELDMAN, JAMES MOELLER, AND FREDERICK J. MARTONE.

A STAY OF EXECUTION was filed on January 12th, 1998 and U. S. District Judge ROBERT BROOMFIELD was assigned to rule Debra's case, Cause No. PHX RGB 98-60, thus entering it into the Federal Court System. At the same time, two Public Defenders were appointed by the Court to file the Habeas Corpus writ. When MRS. JANKA inquired at the District Court Clerk's office concerning this matter, the appointment of two public attorneys was confirmed to her and that MR. ANDERS ROSENQUIST was no longer attorney of record. MRS. JANKA retained MR. ROSENQUIST as her private attorney on behalf of her daughter, Debra Jean Milke, and had the appointed public attorneys removed. Judge BROOMFIELD ordered the Habeas Corpus to be filed no later than July 31rd, 1998.

In May 1998, MR. ROSENQUIST filed for release of pertinent records. One week before the deadline of filing the Writ for Habeas Corpus [07/31/98], he still did not have a ruling by the District Court whether they would release the records. MR. ROSENQUIST, therefore, had to file a thirty day extension awaiting the ruling. The District Court Judge has meanwhile denied access to these records. Based on this ruling, MR. ROSENQUIST will file the Writ for Habeas Corpus on August 31, 1998.

"The thing is mom, I can't retain information as it's given to me. When I hear my attorney talk to me, I hear only words. It frustrates me because I can't comprehend anything right now.

I give you a better understanding of why this is happening to me, I'll tell you what took place that nearly sent me over the edge. It was the icing on the cake of this entire tragedy.

Because of the court's action and per DOC policy, I had to go through the motions as if an execution was going to take place. I had to sign papers (last meal, witnesses I wanted present, disposal of my remains), my veins were examined by a doctor, the chaplain stopped by for a visit, my room was searched every day, psychiatrists came around, and I was going to be moved to an isolation cell where I'd be watched by camera. All of this had to take place because DOC did not receive word of the Stay of Execution. Anders didn't file it until January 12.

This experience was morbid and horrific, not to mention psychologically traumatizing.

The Warden and the staff didn't want to put me through this but they had to until the Stay was official. I agonized for days on end until that damn thing was filed.

It was filed and signed by the judge and now that part is over.

Life, as I now know it, ... is back ..."

This page was last modified :
Monday, 03-Mar-2008 19:02:54 CST