The defense attorney of Debra Milke, a woman who has served 23 years in prison for the death of her son and was released from death row last year, claims that retrying Milke in court because of the prosecution’s withholding of evidence in the initial trial would violate her Fifth Amendment rights.

The 9th U.S. Circuit Court of Appeals overturned Milke’s case when it was found that the state did not turn over evidence of misconduct by their key witness, Armando Saldate Jr., in the emotionally-charged 1990 trial. The evidence would have allowed the defense to question the witness’s credibility.

Saldate, a Phoenix police detective at the time, told jurors that Debra Milke confessed to the 1989 killing of her son when he questioned her, which was a key piece of evidence in the case. After Milke’s conviction, the court found that Milke never waived her right to have an attorney present in the interrogation.

The court accused Saldate of multiple occurrences of misconduct and eradicated many of his confessions in the case and other cases because he lied under oath and violated Milke and other defendants’ constitutional rights.

The overturned case now faces a new problem: the defense claims that retrying Debra Milke in court would be “double jeopardy”, violating her Fifth Amendment right of not being tried twice for the same offense.

Saldate is attempting to refuse to testify at Milke’s retrial by asserting his Fifth Amendment right against self-incrimination. In December, a judge sided with Saldate, although prosecutors are currently challenging the ruling.

Why would Saldate choose to plead the fifth?

If Saldate changes his testimony now from what he said in the original trial, he could face criminal charges for violating Milke’s rights. If he maintains the same testimony, he could be pursued for perjury charges based on the appellate court’s evaluation that his testimony may not have been credible – including a concurring opinion by Justice Kozinski indicating he believed the confession probably had never taken place.

Until further notice, Milke’s retrial is set for February 2, 2015.

Jeffrey Martinson, who spent nine years in custody for the death of his son in 2004, was released in November after a judge ruled that misconduct by the prosecutor in the case was too much to overcome.

The decision has far-reaching implications: Because Martinson’s verdict was overturned with prejudice, he cannot be retried for murder without invoking double jeopardy.

And despite an Arizona Court of Appeals ruling in 2012 that the prosecution could re-indict Martinson on different charges, the trial judge found that prosecutorial misconduct precluded filing new charges.

Martinson was charged with first-degree felony murder in 2011 for killing his son with muscle relaxant pills.

According to Martinson, he found his 5-year-old son, Josh, floating in the bathtub in 2004 and tried to save him but ultimately failed. Martinson said he then tried to kill himself. Autopsy reports, however, found muscle relaxants in the boy’s system. Based on the new evidence, Martinson reasoned his son must have taken the pills, thinking they looked like candy.

In 2011, a jury found Martinson guilty – a verdict that allowed for the death penalty. But one juror came forward before Martinson could be sentenced, stating that the forewoman forced other jurors into finding Martinson guilty. The guilty verdict was thrown out in March 2012 and by that fall, Martinson was facing new charges.

Martinson was ordered released from jail after Judge Sally Duncan ruled that the prosecutors’ actions had resulted in a “a win-by-any-means strategy.”

Duncan’s 28-page ruling detailed the conduct of the prosecution, including Deputy Maricopa County Attorney Frankie Grimsman, and concluded that their actions had demonstrated “a pattern and practice of misconduct designed to secure a conviction without regard to the likelihood of reversal”

Several things factored into Duncan’s decision:

– Martinson had been charged with felony murder, with the prosecution arguing that the boy had died as a result of child abuse. Despite the charge, prosecutors tried the case as if Martinson were charged with intentional, premeditated murder. Several times over the course of the trial, Grimsman was warned by the trial judge not to continue with the premeditated course of action.

– After the first conviction was thrown out because of improper testimony and juror misconduct, Grimsman then tried to re-indict Martinson on premeditated murder charges.

– Grimsman then repeatedly tried to have both Duncan and Martinson’s defense attorneys removed.

The Waste Management Phoenix Open golf tournament is approaching and with it, all of the festivities that the tournament brings, including DUIs.

The Scottsdale, Arizona stop of the PGA Tour will include four days of golf, large crowds and lots of alcohol. Among the list of major featured sponsors includes Alliance Beverage Distributing Company of Arizona, the largest alcoholic beverage distributor in the state.

While the golfers are on the green, police will be on the prowl looking for potential traffic violations and DUI tickets as spectators exit the TPC course.

“You’re being watched by law enforcement before you even get to your car,” said Christopher P. Corso, who prosecuted all of the DUIs stemming from the golf tournament when he worked for the Maricopa County Prosecutor’s Office. “Police officers are watching golf fans as they leave the golf course for any signs of impairment. Once they spot a person getting behind the wheel, they follow through on their promise to be tough on DUIs.”

Corso said The WM Phoenix Open website provides spectators with a list of shuttle and cab companies in the Scottsdale area, to give everyone the option to drink and get home safely.

With more than 14,000 cases under their belt, the Arizona DUI lawyers at Corso Law Group know the stiff penalties for driving under the influence in Arizona.

In fact, Arizona is one of the strictest states in the country for DUI enforcement. For anyone found guilty of a first offense, there is a minimum jail time of 24 hours, substantial fines of up to $2,500 with an 84 percent surcharge and license suspension of 90-365 days, with the exception of drug-related DUIs, which can include up to two years of license suspension.

In 2013, the number of DUIs at the Phoenix Open ended lower than 2012’s 119 DUI arrests.

Please contact Corso Law Group today for a free consultation. The Arizona law firm’s criminal defense attorneys will meet to discuss each unique situation and help determine the best means of action. To schedule a free consultation, please call (480) 471-4616. Corso Law Group is located at 17470 N. Pacesetter Way Scottsdale, AZ 85255.

According to an Arizona Supreme Court enactment updating Ethical Rule 3.8, prosecutors are required to turn over to defense attorneys any evidence showing the possible innocence of a convicted person, and prosecutors must take it upon themselves to get the conviction reversed if they find “clear and convincing evidence” proving the defendant’s innocence, the Arizona Republic reports.

The role of the prosecutor is to represent all citizens, “and therefore they, like judges, are held to higher standard and should help remedy any errors that result from our sometimes imperfect system of justice,” Supreme Court and Chief Rebecca White Berch wrote in an email to the Republic.

Berch said that Ethical Rule 3.8 supports the notion that it is the duty of prosecutors to act as “ministers of justice” who work to represent all citizens fairly rather than seek convictions at all costs; however, Maricopa County Attorney Bill Montgomery and other attorneys are rejecting the new rule.

A statement made under Montgomery’s name claims that the change is unnecessary.

“We have no real-world examples of prosecutors discovering evidence of the nature that would trigger a duty under this rule,” because “prosecutors in Arizona already fully embrace their roles as ministers of justice when (it) comes to righting wrongful convictions,” the Republic reports.

Montgomery’s objection cited that prosecutors were already reexamining their convictions. An example in his file said that his office was recently working to drop charges against people pleading guilty to “huffing,” the act of intentionally inhaling vapors as a way to get high, because the law had been misinterpreted.

Although this may be true in regards to those specific cases, the Republic reported a case that challenges the perception that prosecutors are diligent when it comes to turning over exculpatory evidence.

Henry Hall was sentenced to death in 1999 for the murder of Ted Lindberry who was killed due to a blow to the head by Hall and dumped in the desert, according to testimony made by a jailhouse informant who claimed Hall had described the events to him.

In 2001 Hall’s conviction was overturned by the Arizona Supreme Court due to juror misconduct, and Lindberry’s remains, which weren’t found at the time of Hall’s conviction, were discovered in a location differing from the informant’s testimony with an intact skull.

Despite the promising new evidence, a series of unfavorable events followed for Hall. Lindberry’s remains were promptly returned to his family and cremated, but Hall’s defense attorney didn’t know about the discovery of the body and the condition of the skull until about a year after the cremation, according to court documents, making the exculpatory evidence virtually useless.

During retrial, prosecutors wanted to use the informant’s original testimony, but Superior Court Judge Roland Steinle didn’t allow it because the information was proved false and the informant had died. Steinle did allow the defense to inform the jury of the situation with the discovered evidence as punishment to prosecutors for not previously disclosing such crucial information, but that didn’t necessarily help Hall or the defense.

Prosecutors were not satisfied with the idea of losing a conviction and took the case to the Arizona Court of Appeals, still insisting on using the original, false testimony. The appeal and a request by the defense to dismiss the case for prosecutorial misconduct were denied in 2011.

There’s no guaranteeing that Hall’s conviction would have been overturned if Rule 3.8 existed at the time, but the muddled situation wouldn’t have been an issue because prosecutors would have known how to properly and fairly proceed with the new evidence.

Hall, having already spent 13 years in prison, was offered by prosecutors a plea to second-degree murder and a prison sentence of another 16 years.

Citizens rely on those in power to fight for justice under all circumstances, and although it’s a complicated and controversial process, amendments to the system and additional ethical rules and improvements like Rule 3.8 will help law enforcement, prosecutors and others work more transparently in the future.