Michael K.

Jeanes, Clerk of Court *** Filed ***

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CR 1989-012631 08/26/2013 CLERK OF THE COURT J. Matlack Deputy

HON. ROSA MROZ

STATE OF ARIZONA v. DEBRA JEAN MILKE (A)

VINCE H IMBORDINO

MICHAEL D KIMERER LORI L VOEPEL CAPITAL CASE MANAGER

UNDER ADVISEMENT RULING

The Court has considered the Defendants Motion to Disqualify Maricopa County Attorneys Office as Prosecuting Agency in this Case filed on July 31, 2013, the States Response, the Defendants Reply, and the arguments of counsel. The Defendants son was murdered on December 2, 1989. In 1990, a jury convicted the Defendant of that murder. On March 14, 2013, the Ninth Circuit Court of Appeals overturned the Defendants conviction based on the prosecutions Brady violation in failing to disclose impeachment evidence related to (now retired) Phoenix Police Detective Saldate. The Ninth Circuit opinion detailed Detective Saldates 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. Notably, although the Ninth Circuit Court overturned the Defendants conviction, it did not make specific findings that the alleged confession was illegally obtained and that the confession should be suppressed.1 The Ninth Circuit Court left it to the trial court to make these determinations. The Ninth Circuit Court further directed its clerk to send copies of this opinion 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
1

Ninth Circuit Judge Alex Kozinski wrote a concurring opinion stating his belief that Detective Saldate illegally obtained the confession and that the confession should be suppressed. However, the panel of judges did not sign on to that portion of Judge Kozinskis opinion. See Milke, 711 F.3d. at 1025. Form R000A Docket Code 926 Page 1

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into whether Saldates 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. See Milke v. Ryan, 711 F.3d. 998 (9th Cir. 2013). In her Motion, Defendant seeks recusal or disqualification of the Maricopa County Attorneys Office (MCAO). Defendant argues that MCAO has a conflict of interest because it has significant political, public and financial interest in the outcome of this case, and because MCAO has committed misconduct in the case by failing to disclose Brady material. Defendant argues that MCAO is biased because it has chosen to re-try the Defendant, has taken the position that the impeachment evidence against Saldate is not admissible upon the retrial, and that MCAO criticized the Ninth Circuit Opinion findings about Detective Saldate as false, misleading, wrong or incomplete. When deciding a motion for disqualification, the court should consider whether the motion is being made for the purpose of harassment; whether the party seeking disqualification will be damaged if the motion is not granted; whether alternative solutions exist, or whether the proposed solution is the least damaging possible under the circumstances; and whether the possibility of public suspicion outweighs any benefits that might accrue due to continued representation. Gomez v. Superior Court, 149 Ariz. 223, 226, 717 P.2d 902 (1986). See also Turbin v. Superior Court, 165 Ariz. 195, 198, 797 P.2d 734 (App. 1990); Alexander v. Superior Court, 141 Ariz. 157, 165, 685 P.2d 1309 (1984). Actual prejudice, or the lack of it, is but one facet of whether a fair prosecution is endangered by the appearance of impropriety. Turbin, 165 Ariz. at 199. A trial court should also consider whether there is any showing of prejudice or the lack of it. Id. Additionally, the court should consider the severity of the charges, the complexity of the case against the defendant, the number of lawyers in the prosecutors office, the role that the deputy county attorney had both with the defendant before the prosecution and thereafter, and how deeply the prosecutor was involved in the prior and present prosecution. State ex rel. Romley v. Superior Court (Fulminate), 171 Ariz. 195, 197, 829 P.2d 1241, 1243 (App. 1992). The burden of establishing such disqualification is on the defendant. Alexander, 141 Ariz. at 161. Only in extreme circumstances should a party be allowed to interfere with the attorney-client relationship of his opponent. Id. The Court has considered the above factors and does not find that disqualification of the Maricopa County Attorneys Office is warranted in this case. The Defendant is charged with first-degree murder with a notice of death penalty. The Defendant did not file the motion to disqualify to harass MCAO but rather to protect her rights. The case is complex not only because it is a capital case but also because it has been 23 years since the Defendants original trial such that witnesses may not be available and the evidence may have degraded. Complicating matters is the Ninth Circuit opinion, which declared the Docket Code 926
Form R000A

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CR 1989-012631 08/26/2013

States key witness, Detective Saldate, as having lied on multiple occasions and violated various defendants constitutional rights. The Ninth Circuit opinion is critical of the actions of Detective Saldate, the Phoenix Police Department, the original prosecutor Noel Levy, and the Maricopa County Attorneys Office. The Defendant made much of current Maricopa County Attorney Bill Montgomery and current prosecutor Vince Imbordino having been colleagues Levy, attributing to them a desire to vindicate Levys and MCAOs reputations, as well as asserting that MCAO is retrying the Defendant only because it has significant political, public and financial interest in the outcome of this case. But that is pure speculation. There is no indication that Imbordino and Montgomery are even close with Levy.2 A court will not presume a prosecutor will seek a defendants conviction at all costs when the duty is to see justice done on behalf of both the victim and the defendants. State ex rel. Romley v. Superior Court (Flores), 181 Ariz. 378, 382, 891 P.2d 246 (App. 1995). The actions of which the Ninth Circuit was critical occurred over 23 years ago. Much has changed in the ensuing 23+ years. Detective Saldate and Levy have since retired. The County Attorney in charge in 1990, Rick Romley, is no longer the County Attorney. Neither Imbordino nor Montgomery had anything to do with the prosecution of this Defendant in the original trial nor were they the individuals accused of committing the Brady violation. There is no indication that the U.S. Attorneys Office has started to investigate the potential civil rights violations. Even if the U.S. Attorney did start the investigations, it would be investigating MCAO under Rick Romleys tenure, not Montgomerys tenure. There is no evidence that Montgomerys office has committed a pattern of Brady violations such that injunctive or declaratory relief under 28 U.S.C. 1983 would be appropriate. The Court also believes that the public can distinguish between bad acts committed over 23 years ago by individuals who are no longer with MCAO or the Phoenix Police Department, and the current prosecutors. The Court finds that any public suspicion that could exist if MCAO continues prosecuting this case does not outweigh the benefits of permitting MCAO to remain on this case.3

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. rel. Romley v. Gottsfield (Fulminante), 171 Ariz. 195, 196, 829 P.2d 1241 (App. 1992). 3 The Court considered the alternative solution of requiring MCAO to assign the prosecution of this case to another experienced capital murder prosecutor who did not work at MCAO at the time of the original trial. However, because this Court did not find that Imbordino has a conflict due to his lack of involvement in the original trial, the Court did not find this alternative to be necessary. Form R000A Docket Code 926 Page 3

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CR 1989-012631 08/26/2013

As to the argument that MCAO has a financial incentive in the outcome of this case, the Court notes that MCAO cannot be sued under the law. MCAO and its prosecutors have absolute immunity from state and federal civil liability for actions taken in their official capacity. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); State v. Superior Court in and for County of Maricopa (Ford), 186 Ariz. 294, 921 P.2d 697 (App. 1996). Even if MCAO and its prosecutors do not have absolute immunity, MCAO, as a non-jural entity, cannot be sued.4 If the Defendant is going to file a state and/or federal civil suit, she would have to sue Maricopa County. See A.R.S. 11-251. And, if she prevails, any judgment would be paid from Maricopa Countys general treasury, not MCAOs budget. Maricopa County v. Hodgin, 46 Ariz. 247, 257, 50 P.2d 15 (1935) (When a judgment is rendered against a county, it is the duty of the board of supervisors to apply funds in the treasury of the county not otherwise appropriated to its payment, or, if there are no such funds, it is its duty to budget the judgment as a county expense and levy a tax to pay it.). As to the Defendants argument that MCAO is biased and has a conflict of interest because it has taken the position that it will either move to preclude the impeachment evidence against Saldate at trial or show that the impeachment evidence as false, misleading, wrong or incomplete, the Court does not attribute bad motives to MCAOs decisions. This is appropriate legal strategy based on good faith arguments of existing law and does not appear to have been made for any improper purpose. The fact that the Defendant does not agree with MCAOs positions does not mean that MCAO has a conflict of interest. The Defendant further argues that Montgomerys criticism of the Ninth Circuit Opinion about Detective Saldate shows that the Defendant cannot receive a fair trial. First, the Court does not believe that criticism attributed to Montgomery about the Ninth Circuit Opinion rises to a level requiring removal of MCAO from this case. Second, the Defendant has over-emphasized the role of MCAO in the process. The courts and the defense team are also here to ensure she has a fair trial. The Court also finds that the Defendant did not establish any prejudice to her or her case if MCAO continues to prosecute her case.

Governmental entities have no inherent power and possess only those powers and duties delegated to them by their enabling statutes. Schwartz v. Superior Court In and For County of Maricopa, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App.1996). While A.R.S. 11-201(A)(1) provides that counties have the power to sue and be sued through their board of supervisors, there is no similar power found in the enabling statute for MCAO. See A.R.S. 11-532. If a governmental entity is incapable of being sued, it is a nonjural entity. Kimball v. Shofstall, 17 Ariz.App. 11, 13, 494 P.2d 1357, 1359 (1972) (holding that because no statute delegates to the State Board of Education the power to sue or be sued, it was not capable of being sued). Form R000A Docket Code 926 Page 4

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CR 1989-012631 08/26/2013

Arizona courts view with suspicion motions by opposing counsel to disqualify a partys attorney based upon conflict of interest or appearance of impropriety.... Gomez, 149 Ariz. at 226; see also Alexander, 141 Ariz. at 165. Appearance of impropriety is too slender a reed upon which to rest disqualification of opposing counsel. Sellers v. Superior Court, 154 Ariz. 281, 289, 742 P.2d 292, 300 (App.1987). The Court finds the facts and circumstances as presented do not raise an appearance of impropriety sufficient to require disqualification of MCAO or any individual prosecutor. Accordingly, IT IS ORDERED denying the Defendants Motion to Disqualify Maricopa County Attorneys Office as Prosecuting Agency in This Case. 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 R000A

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