Does the overturning of a death row case highlight bigger problems in Arizona?

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by Christine LaCroix

azfamily.com

Posted on March 21, 2013 at 5:42 PM

Updated Thursday, Mar 21 at 6:00 PM

PHOENIX -- One week after a federal appeals court overturned the conviction and death row sentence of Debra Milke, some Arizona attorneys are coming forward to say the case highlights a more wide-spread problem in the state of Arizona.

Milke was sentenced to death in connection with death of her 4 year old son Christopher.  The 9th Circuit Court of Appeals overturned her conviction because of what it called “misconduct” on the part of detective Armando Saldate. 
The justices, in their opinion, also accuse the prosecutor of failing to disclose that Saldate had a history of lying on the stand and other misconduct.
“They  also called for a Department of Justice Investigation into the conduct of Noel Levy,” said attorney Larry Hammond, referring to the prosecutor involved in the case.
Hammond wrote an amicus brief in support of overturning Milke’s conviction.
Hammond says that at the time of Milke’s conviction, there was a culture of not disclosing information among prosecutors.
“Cases like the Debra Milke case will test whether really is a culture when there are concerns about disclosure, and whether the county attorney’s office is going to take the high road and make sure that kind of thing can’t happen again.”
Legal ethics attorney Karen Clark says prosecutors are rarely sanctioned for unethical behavior.
“There is a big problem. There is a big problem nationally and clearly we have a problem here in Arizona,” Clark said.
Clark pointed to a study conducted by the national bi-partisan, prosecutorial watchdog group, Veritas Initiative.
The study examined allegations of prosecutorial misconduct in Arizona between 2004 and 2008. Of the 20 cases, no prosecutors were publicly sanctioned.
The current Maricopa County Attorney, Bill Montgomery, who was not the head of the office during the Debra Milke case, has serious doubts about accusations of prosecutorial misconduct.
“Of particular concern to me was what I think was an irresponsible statement by the 9th Circuit that somehow our current office should be subjected to an investigation,” said Montgomery. “There are some serious questions as to whether the facts presented by the 9th Circuit are accurate.
According to Montgomery, the defense had the key information about Saldate’s history of misconduct, but it was not presented at trial because the judge suppressed it. 
Montgomery also says the 9th circuit cites cases that occurred after Milke’s conviction as law that should have governed the prosecutor’s conduct.
“I think it is an incredibly unfair charge against Noel Levy,” Montgomery said.
Montgomery also said the law has changed in the time since Milke’s conviction, and that there are procedures in place to make sure his attorneys disclose all information, whether it helps their case or not.
“The culture within this office is one of understanding what our approach has to be and that is to ensure justice is done,” Montgomery said. “The culture is one of honorable service.”
Noel Levy declined an interview with 3TV, but in a lengthy telephone conversation Levy said he did not knowingly withhold information about Saldate.
“I had no idea there were issues with Saldate,” Levy said in the phone conversation. “I always thought he was a solid, upstanding family man. A church-going guy. The 9th circuit’s finding really surprised me.”

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