Appeal from the Superior Court in Maricopa County. No. CR1989-012631. The Honorable Rosa Mroz, Judge.
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Jones, Skelton & Hochuli, P.L.C., Phoenix, By Lori L. Voepel and Kimerer & Derrick, P.C., Phoenix, By Michael D. Kimerer, Co-counsel for Petitioner.
Maricopa County Attorney, Phoenix, By Vince H. Imbordino, Amanda M. Parker, Michael J. Mitchell, Counsel for Real Party in Interest.
Presiding Judge Patricia K. Norris, Judge John C. Gemmill, and Judge Peter B. Swann delivered the opinion of the Court.
[236 Ariz. 279] NORRIS, GEMMILL, SWANN., Judges:
[¶1] Debra Jean Milke petitions this court for special action review of the superior court's denial of her motion to dismiss the capital charges against her. She alleges a retrial would violate the Double Jeopardy Clause of the Arizona Constitution because of the State's longstanding breaches of its constitutional duty to disclose impeachment evidence. In this extraordinary case, we agree. The State committed egregious prosecutorial misconduct tat severely prejudiced Milke's defense, and nearly a quarter-century passed before the misconduct was fully brought to light. On this record and based on Arizona Supreme Court precedent, we conclude that retrial is not an effective remedy and the integrity of our system of justice demands application of the double jeopardy bar. We therefore exercise special action jurisdiction and grant relief by remanding with instructions to dismiss the charges against Milke with prejudice.
SPECIAL ACTION JURISDICTION
[¶2] Special action jurisdiction is highly discretionary, but we will grant review if the question presented is of constitutional significance and there is no adequate remedy on appeal. Randolph v. Groscost, 195 Ariz. 423, 425, ¶ 6, 989 P.2d 751, 753 (1999); see Lemke v. Rayes, 213 Ariz. 232, 235, ¶ 2, 141 P.3d 407, 410 (App. 2006); Pool v. Superior Court In & For Pima Cnty., 139 Ariz. 98, 100, 677 P.2d 261, 263 (1984). Special action review of an interlocutory double jeopardy claim is appropriate " [b]ecause the Double Jeopardy Clause guarantees the right to be free from subsequent prosecution" and, if applicable, " the clause is violated by the mere commencement of retrial." State v. Moody, 208 Ariz. 424, 438, ¶ 22, 94 P.3d 1119, 1133 (2004). Therefore, we accept jurisdiction to address whether the continued prosecution of Milke is barred by the Double Jeopardy Clause of the Arizona Constitution.
[¶3] More than two decades ago, in an interrogation by now-retired Phoenix Police Detective Armando Saldate, Jr., Milke allegedly confessed to murdering her four-year-old son. At a suppression hearing before trial and during trial in 1990, Milke unsuccessfully argued that her confession was involuntary because she was too distraught to understand the Miranda  warnings Saldate gave her and Saldate failed to grant her request for a lawyer. He testified that Milke confessed her guilt, but Milke maintained her innocence and denied confessing to the murder. The State's case rested heavily on Saldate's credibility. It was Milke's testimony against Saldate's. The jury found Milke guilty of first-degree murder, conspiracy to commit first-degree murder, and kidnapping. The trial court sentenced her to death. State v. Milke ( Milke I
[236 Ariz. 280] 177 Ariz. 118, 865 P.2d 779 (1993).
[¶4] The Arizona Supreme Court affirmed Milke's convictions and sentences on direct appeal in 1993, see id., and after her petition for post-conviction relief was denied, she sought habeas corpus relief in federal court. The United States District Court for the District of Arizona denied her petition, and she appealed to the United States Court of Appeals for the Ninth Circuit. Milke v. Ryan ( Milke II ), 711 F.3d 998 (9th Cir. 2013).
[¶5] Milke was incarcerated for over twenty three years - twenty two years on death row - before the United States Court of Appeals for the Ninth Circuit granted her a conditional writ of habeas corpus in 2013, setting aside her convictions and sentences. The Ninth Circuit held that the State failed to disclose evidence required to be produced under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), regarding Saldate's previous instances of improper conduct and lying under oath while on the police force. Milke II, 711 F.3d at 1004. The Ninth Circuit found that the State had remained " unconstitutionally silent" about Saldate's previous instances of misconduct while on the police force. Id. at 1003. None of the undisclosed information had been revealed at the time Milke's convictions were affirmed.
[¶6] To comply with Brady/Giglio, the prosecution is required unilaterally to disclose any impeachment or exculpatory evidence that is favorable to the defendant and which may create a reasonable doubt in jurors' minds regarding the defendant's guilt. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); State v. Montano, 204 Ariz. 413, 424, ¶ 52, 65 P.3d 61, 72, supplemented by206 Ariz. 296, 77 P.3d 1246 (2003). When, as here, " the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." Giglio, 405 U.S. at 154 (citation omitted). Regardless of good or bad faith, a state's failure to adhere to Brady/Giglio ...