Debra Milke Trial on Hold Pending Appeal


We’ve been following the Debra Milke case on this blog.  See here, here, and here.

Here is a recent update from TV5 KPHO in Phoenix, AZ.

10 responses to “Debra Milke Trial on Hold Pending Appeal

  1. The Arizona Court of Appeals ruled this is “double jeopardy” and “egregious prosecutorial misconduct”. The MCAO prosecutors and judges need CLE class in “double jeopardy 101” and to learn the U.S. Constitution.

    Folks, Regardless of what you think about the Debra Milke case, if you think this is not about you, think again. When a prosecutor (politician), has the awesome power to determine who shall live and who shall die, and who goes to prison and for how long – prosecutors have no oversight, no transparency and no accountability AND have absolute immunity – in a state with a track-record of abuse of power, and egregious prosecutorial misconduct, then people need to wake up!

    The 9th Circuit Court of Appeals, Chief Criminal Judge Kozinski, gave a scathing opinion of Arizona’s justice system, to include the federal court, U.S. District Court of Arizona. Start on pg. 54 of the overturned conviction and sentence. The MCAO prosecutors (one term in office) think they know more than the experienced and knowledgeable 9th Circuit Court judges? Really?

    There’s a gag order on this case, yet the Maricopa County Attorney/DA Bill Montgomery is said to be lying to the public as he grandstands on the news. How is this even allowed? Milke has been silenced since March 14, 2013, by him, as he promotes himself, at her expense for his re-election (building his resume with high-profile cases).

    MCAO Montgomery is addressing an uninformed public, in a state where the top state prosecutors refuse to acknowledge wrongful convictions, Brady violations and write that, to the Arizona Supreme Court judges. Read their replies to: Arizona Supreme Court Rules Forum No. R-11-0033 Petition to Amend Rule 42, ER 3.8 – Ethics responsibility of a prosecutor.

    • James N. Hutchinson, Jr., Lt. Col. USAF Ret

      Clearly reasoned and beautifully written! The behavior of Noel Levy are Bill Montgomery worse than Mike Nifong (of the Duke U. lacrosse player scandal) in may own state, NC. Mike Nifong spent token time in jail, was disbarred, and is now millions in debt. Arizona’s Nazi-like misbehavior of DA will continue until, Levy and Montgomery are disbarred, send to jail, and bankrupted. They attempted to murder Debra Milke using the judicial system.

  2. Response received from: Former Texas appellate lawyer: “Wow. The state and federal courts in AZ seem to be uniformly awful. Except, I guess, that intermediate court of appeals. I thought the Ninth Circuit resolved all of this and slapped the AZ federal court. What makes anybody think they have the authority to make a different decision? You know who advises the AZ trial judges in death penalty cases, right? Former pretend “lawyer and criminal law specialist” Diane Alessi. She is behind much having to do with the death penalty in AZ.”

  3. People are appalled at the DA Montgomery’s interview. Here’s response #2: “I saw the video. I never saw a more smarmy son of a bitch in my entire life. He ended it with a smile or was it a smirk on his face obviously without a thought or care in his mind that he’s talking about killing someone.

    Now that I’ve taken my glove off and slapped him in the face, let’s analyze his legal knowledge.

    State v. Minnitt
    The double jeopardy clause, however, does not bar retrial if evidence is erroneously admitted at trial to give the impression that there is sufficient evidence, when in actuality there is insufficient evidence.35 Despite the fact that without the erroneously admitted evidence there might be insufficient evidence to sustain a conviction, the double jeopardy clause is not invoked and retrial is permitted.36 Erroneously admitted evidence is considered mere trial error and is a basis for allowing retrial.37 Where there is mere trial error that can be remedied in a new trial, double jeopardy does not bar retrial.38 Furthermore, erroneously admitted evidence and prosecutorial misconduct are not necessarily interrelated. In other words, there is no presumption that erroneously admitted evidence is prompted by prosecutorial misconduct.39 This distinction allows for the inference that, although double jeopardy protection does not apply in cases where evidence is erroneously admitted, it may apply in cases involving prosecutorial misconduct, since they are not considered one and the same.40

    The U.S. Supreme Court has ruled that double jeopardy will bar retrial in cases of prosecutorial misconduct, but the federal doctrine is only well developed in the context of mistrials.41Initially, double jeopardy did not bar retrial if the mistrial was not of manifest necessity,42 or if it was the result of the defendant’s motion.43 This standard prompted and encouraged prosecutors to engage in improper conduct in order to incite a defendant’s request for mistrial.44 Prosecutors recognized that the defendant had two equally damaging options.45 The defendant could move for a mistrial, which would subject him to retrial if granted, or the defendant could tolerate the misconduct, which would likely bias the trial against him.46 The U.S. Supreme Court in Oregon v. Kennedy “recognize[d] the necessity of protecting a defendant’s double jeopardy interests from subversion by intentional prosecutorial misconduct.”47The Court held that “a defendant may invoke the bar of double jeopardy . . . to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.”48 Although the Kennedy decision extended double jeopardy protection to mistrials resulting from prosecutorial misconduct, it was a narrow holding.49 Prosecutorial misconduct, under Kennedy, is defined as intentional misconduct to provoke a motion for mistrial from the defendant.50 A retrial of a defendant, therefore, is permitted if the mistrial was the result of merely negligent prosecutorial misconduct, or mere trial error.51

    The double jeopardy clause as developed by the U.S. Supreme Court protects defendants from being retried when a conviction has been reversed on appeal for insufficient evidence52 or when a mistrial is granted for prosecutorial misconduct.53 The federal constitutional case law, however, has yet to address a defendant’s protection from double jeopardy when a conviction is reversed on appeal for prosecutorial misconduct.54

    ( Retrieved 1/23/2015)

    So to simplify the foregoing in cases of misconduct retrial is barred only when the misconduct is intentional. This may sound strange to some but it is possible to have an unintentional misconduct. To provide an example of an unintentional misconduct would be a miss filing of documents, something getting lost in the mail, miscommunication between departments etc. in other words a situation where there was no intent to deceive.

    In Debra’s case that’s not what we have here and retrial most definitely is barred. Furthermore all of the rat bastards in the courts already know this because State v. Minnitt is a recently decided Arizona case. All the present action is accomplishing is the continuance of another person suffering under the guise of the law and you really have to question what kind of sick person would do something like that after they already got through tormenting them for 25 years. NOBODY EXPECTS THE SPANISH INQUISITION!!!”

  4. Pingback: Debra Milke Case — She Remains Free — and IT’S DONE !! | Wrongful Convictions Blog

  5. Pingback: Post Exoneraton Developments in the Debra Milke Case | Wrongful Convictions Blog

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