Debra Milke spent 23 years on death row for killing her son before charges were thrown out.
Now she is accused of destroying and hiding thousands of pages of documents critical to her lawsuit against the city of Phoenix for wrongful conviction.
A federal judge on Friday threatened to dismiss Milke’s lawsuit or fine her hundreds of thousands of dollars for failing to turn over documents, saying the harm caused by her behavior cannot be easily remedied.
“Milke’s undisputed repeated instances of document destruction mean a jury would never be provided the full record,” Arizona U.S. District Court Judge Roslyn Silver wrote in a 45-page draft order. “And given Milke’s past behavior, the Court ‘anticipates continued deceptive misconduct’ if this case were to continue.”
Among the documents Milke is accused of withholding is an email to a previous lawyer acknowledging that she had been read her Miranda rights and told a Phoenix detective she did not wish to be recorded when she allegedly confessed to killing her 4-year-old son in 1989.
The email is among thousands of pages of documents, letters, correspondence and computer records lawyers for the city of Phoenix accused Milke of hiding or destroying since suing the city in 2013.
They say documents they’ve been able to piece together so far contradict her claims of wrongful conviction, and the missing documents likely would show her culpability in the crime.
Who is Debra Milke?
Milke and two others were sentenced to death for the murder of her son, Christopher, who was allegedly told he was going to see Santa Claus, but was instead taken to the desert and shot.
Milke’s former roommate and would-be suitor James Styers, and his friend Roger Scott, carried out the murder together. Milke was convicted largely on the basis of her confession to Phoenix Detective Armando Saldate. Milke for years denied confessing.
In 2013, the 9th U.S. Circuit Court of Appeals threw out her conviction because the original prosecutor failed to disclose evidence that could have been used in her defense.
The prosecution did not turn over the personnel record of of Saldate, who had a history of misconduct in other cases. He claimed Milke confessed to her involvement in killing her son, although there were no witnesses to her confession, which was not recorded.
“Milke may or may not have confessed to Saldate approximately thirty years ago,” Silver wrote in her draft order. “Determining what happened thirty years ago is not the Court’s task. Instead, the Court’s present task is to treat Milke and defendants as equals, required to follow the same rules. Those rules do not allow a party to withhold responsive documents, assert baseless privilege claims, and destroy physical and electronic evidence.”
Milke’s civil case has no bearing on her exoneration. But the case hinges on whether she can prove she was wrongly convicted.
Judge cites withholding, disclosure of records
Ironically, the same so-called discovery rules are what freed Milke after 23 years on Death Row.
Silver on Friday laid out Milke’s repeated violations of those rules, which require parties in a case to turn over potential evidence in a case.
The court in 2019 found 16 instances where Milke wrongly withheld records or outright destroyed them. That included failing to preserve records from a website about her case, falsely claiming lawyer-client privilege on records she shared with third parties and shredding boxes of documents from prison and letters to her mother.
Silver demanded to know Friday how much Milke could afford to pay if she was ordered to pay sanctions. Milke’s attorney could not give a precise answer but acknowledged her client could not come up with $500,000.
Milke was not in the courtroom Friday. Her lawyer, Elizabeth Wang, attended remotely by telephone. Wang said dismissal was not warranted in the case.
In a phone interview after the hearing, Wang said lawyers for Phoenix and Maricopa County have distorted the record with regard to the information Milke has turned over.
“She (Milke) has an extremely meritorious case and the defendants have mischaracterized the record in order to get the case dismissed, because the know they wouldn’t win if we took it to trial,” Wang said via phone from her office in Colorado.
Wang disputed claims that Milke’s email to a previous lawyer contradicts her past statements. She said the email proves Milke asked for a lawyer and didn’t get one before she was questioned.
Christine Retts, a lawyer representing Phoenix, said the email “fundamentally undermines” Milke’s claims.that she was never read her rights and that she did not want to be recorded.
Retts cited a litany of other records.
“Ms. Milke has destroyed evidence, and there is evidence of that,” Retts said in court, adding Milke has engaged in “a pattern of lying, destroying documents and hiding information.”
Silver did not make a decision Friday but said her ruling would be forthcoming.
Help us fight for you and support local journalism. Subscribe to azcentral.com today.
Read or Share this story: https://www.azcentral.com/story/news/local/arizona-investigations/2020/09/18/federal-judge-threatens-dismissal-debra-milkes-wrongful-conviction-suit-against-phoenix/5827767002/