Phoenix, AZ—I’m getting a lot of questions from anxious
viewers about when we could expect to see Debra Milke go free. This seems tied to a short time table in the
9th Circuit Court of Appeals opinion and order. It’s not that easy.
First of all let me conceded that prosecutors have an
absolute right to appeal the ruling to the U.S. Supreme Court. That could bring about significant delays and
even could result in another reversal of this case. I’m optimistic and don’t anticipate the
Supreme Court agreeing to hear this case. The police and prosecutorial
misconduct here is way too egregious. I
believe the 9th Circuit ruling will stand.
Prosecutors at some point may try to arrange a plea bargain
for Debra that would bring immediate freedom but stain her forever as a convicted
murderer. They can be counted on to
suggest if she will plead guilty that her sentence would be limited to the time
she’s already served. This would prevent
her from suing over the false imprisonment.
More importantly as a convicted murderer she could never be able to
return to live in Germany where she was born should she want to do that. It’s a difficult decision that I expect Milke
to reject.
Should they retry Debra, the only evidence against her is
the “so-called” confession. A new jury
will never hear that fabrication by the finally disgraced detective Armando Saldate. A retrial without any evidence is unrealistic
but it’s happened before. I don’t however
suspect there will be a retrial under these circumstances.
If the Arizona Attorney General Tom Horne somehow sees the
light and abandons his already announced plans to appeal Debra Milke could be
freed very quickly with out the stain of a criminal conviction.
As for a monetary award for what Debra has gone through it’s
certainly not a sure thing. She would
have to prove deliberate conduct by cops and prosecutors to bring a bad faith
prosecution forward. The original Grand
Jury’s indictment brings insulation and protection for the miscreants
here. The legal term is, collateral
estoppel.
Debra Milke seems to be headed for freedom here and
execution now seems unlikely. At some
point she will be brought to the Maricopa County jail pending her possible
retrial. Having release on bail granted
now is unlikely but it could happen.
Unfortunately I don’t have a crystal ball and can’t read those
damn tealeaves. We are all going to have
to be patient and let the miserably slow legal system grind through this horror
story. I can say that freedom probably
come anywhere from 90 days to two years.
That is of course if the United Sates Supreme Court does not reverse the
9th Circuit Court of Appeals.
8 comments:
Thanks Paul for the explanation!
Paul you've been watching this story from the beginning. I'm glad it's finally coming to this conclusion for that poor woman.
Paul -from my filing experience in the US Supreme Court- I have heard that less than 100 out of 7000 cases filed at the US supreme Court each year - are heard by the US Supreme Court.
The rest which may be meritorious cases are tossed out and rendered dead.
Have a case heard by the US Supreme Court is not a right.
The Prosecution can petition for writ of certiorari but should only do so - if it has something legitimate and per the US Supreme Court Rules to argue otherwise the filing is frivolous and in bad faith.
Frivolous is a favorite word of Federal Courts in California (and elsewhere?) but the term frivolous - should equally be applied to certain County and City prosecutions, just as much as it is used against non government Plaintiffs in civil rights violation cases as A BRAND- to justify dismissing their cases.
Every party has a right to petition the Supreme Court but they have no right to have the court accept jurisdiction. The AZ-AG may try to get a hearing en Banc before the entire 9th Circuit and also petition. All that will be won is a delay keeping Debra Milke in prison longer. There is s slim chance she can get released on bail too during this process...
There is only a very limited time to file for leave to appeal a 9th circuit decision to the En Banc Court in 9th Circuit US Court of Appeals.
From my memory 3 weeks at most!
So it will be easy to find out from the 9th Circuit Court record of cases in the next few weeks - if the prosecution is going forward to appeal to the En Banc Court at 9th Circuit Court of Appeals.
If not and if the prosecution decides to file directly to US Supreme this will delay matters a couple of years.
And Debra, I believe would not be released pending the outcome of the petition for writ of certiorari, even though we would all wish her early release.
But in closing and in conclusion - I believe the fact that the Chief Judge of the 9th Circuit plus two other 9th Circuit Judges has ruled in favor of
Debra Milke is an extremely GOOD OMEN for her.
Hopefully her release will be sooner than later!
Bottom Line
Letting the police get away with manufacturing confessions or planting evidence in any case including the Debra Milke case
not only risks convicting the innocent,
but helps the guilty avoid detection and strike again,
which guilty in the Milke case - does include those guilty police, & prosecutors who manufactured a confession, and planted evidence,
& their other despicable acts of corruption. This is not isolated to Arizona, it also exists in California.
So we are all at risk here.
Actually, I believe at a retrial the false confession will be let in under the condition the jury will be allowed to see the history of that detective's misconduct. I pray that Debra has the strenght to turn down any plea deals.
March 17th 1996 - March 17th 2013 = 17 years of PC
I don't believe there will be a retrial - if the 9th Circuit Decision stands,
Unless the State Judge is biased (not unheard of), allows the corrupt confession in again, with the jury ruling for the prosecution and if the Judge doesn't fear being overruled by the 9th Circuit again.
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