Accountability and Credibility of Arizona Prosecutors

Recently revisited cases of Debra Milke and now Drayton Witt are raising questions regarding the accountability and credibility of Arizona prosecutors.

Milke spent more than 20 years in prison after being accused and convicted in 1989 of conspiring to commit murder, murdering, kidnapping and abusing her four-year-old son and was later sentenced to death. Milke’s case has been highly publicized, and she is awaiting a retrial due to a mistake made in the earliest stages of her original conviction.

A Miranda waiver was never signed by Milke, meaning that she never gave up her right to remain silent. This crucial detail potentially voids the unrecorded police interview with former Phoenix Police Detective Armando Saldate Jr. in which he claimed that Milke confessed to plotting to murder her son. Armando Saldate

Saldate has had a history of misconduct including four other instances of lying under oath and other ethical issues. According to Ninth U.S. Circuit Court of Appeals’ Chief Judge Alex Kozinski, who overturned Milke’s conviction this spring, during her trial, “‘no … witnesses or direct evidence (linked) Milke to the crime’ other than Phoenix police Detective Armando Saldate Jr.,” CNN reports. More on Saldate’s misconducts in the Milke case and others have been reported by the Phoenix New Times.

The Associated Press reported that “Debra Milke has not been exonerated, but a judge granted her a $250,000 bond Thursday, meaning she could go free while preparing for a new trial in the case.”

Drayton Witt was accused and convicted of shaking his girlfriend’s four-month-old son, Steven Holt, to death in 2002. He spent 10 years in prison, but Witt’s case resurfaced in 2012 when the Arizona Justice Project, a part of the Innocence Network that reevaluates child death cases, and pediatric surgeon and developer of Shaken Baby Syndrome Norman Guthkelch conducted further investigations.

Their research determined that Holt’s death could have been caused by various factors, including prior illnesses like an obstructed vein near his brain and history of seizures caused by unexplained neurological issues, and not SBS alone. Find more details on Guthkelch’s SBS findings and opinions on Witt’s case here.

The Arizona Republic reported in an article from October 2012 that the case’s original medical examiner, Dr. A.L. Mosley “would if he could testify again, conclude that the baby died of diseases, not abuse.”

After a decade in prison, Witt’s case was dismissed although he may still face possible legal disputes.

Both the Milke and Witt cases make clear the need for an updated system that keeps prosecutors and police accountable for any mistakes and wrongful convictions. The American Bar Association sets the standard for ethical conduct to those in the legal profession, and the Arizona Justice Project is petitioning to update Arizona’s bar because of cases like these, and many others.

Similar cases reported by the Phoenix New Times include those of Lisa Kathleen Randall, an Arizona daycare owner, who was accused of shaking to death one of the children in 2007 and Audrey Edmunds, a Wisconsin babysitter convicted of killing a 7-month-old. Each of their cases were revisited and eventually dropped or reversed after new medical evidence was found, disputing previous convictions.

The ABA Ethical Rule 3.8 states that if “new, credible, and material evidence” are discovered by prosecutors, that evidence must be disclosed to the defendant and “undertake further investigation or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offence that the defendant didn’t commit.”

The Phoenix New Times reports that the prosecutor for both the Milke and Witt cases, Maricopa County Attorney Bill Montgomery, is fighting against changes to ethical rule 3.8 for the State Bar of Arizona. The bar is trying to institute a rule that makes prosecutors responsible for disclosing any new information received that may exonerate the person. Montgomery is against this.

Why?

At this time, if you are convicted today and then someone approaches a prosecutor at a later date to confess, the prosecutor is under no obligation to do anything. The amendment to ethical rule 3.8 wants to change that. If adopted, it would make it impossible to continue going after people once new information has been received, thereby making an attempt an ethical complaint.

Of course, Montgomery wants to keep Milke behind bars, and as reported in the same Arizona Republic article mentioned above, he still believes Witt is guilty of murdering Holt saying, “Obviously, we believed it the first time around.”

So what if he believed it the first time around? What about now? Shouldn’t prosecutors be unbiased in their convictions and base any judgements solely on facts to make the fairest decision possible?

At Corso Law Group, we believe the system should try to remain balanced by holding police and prosecutors accountable for their actions and encouraging them to strive for the highest level of credibility by accepting criticism, taking responsibility for any wrongdoings and correcting them to their greatest ability.

Instead, it seems as though many prosecutors today are worried more about saving face and counting their winnings rather than advocating for fair trials.