Debra Milke and the death penalty

On Friday, the Maryland house voted to repeal the state's death penalty, which means it will become law as it had already passed the state Senate and the Governor proposed the bill in the first place. In comments online, those who support the premeditated killing of people by the state bemoaned the fact that the death penalty has become too unwieldy, too expensive. There were the predictable calls for swift execution of those who were surely guilty. Complaints about the outrageous number of appeals death penalty defendants are allowed. And, of course, rants about the evil defense attorneys who keep these cases going so they can rake in money hand over fist with each new filing.

News also broke late last week about an Arizona woman who has been on death row for 22 years having her conviction and sentence overturned. The action came from a federal appellate court, so it would have been the 3rd round of litigation at least. Debra Milke was convicted in the 1989 high-profile killing of her 4 year-old son. Her conviction was based solely on the testimony of one detective who swore she confessed. Not that he'd recorded that confession or allowed any other witness to hear the confession. He hadn't even kept any notes from the confession. So it really came down to him coming into court and swearing that she'd confessed. That was news to her, though. She swore she was innocent and always said so and that she'd asked the detective for an attorney. She maintained the detective's version of their conversation was completely made-up.

Since the case against her so entirely rested on the credibility of that detective, her defense counsel had subpoenaed his personnel files. The prosecution fought that subpoena. They never turned over anything about the detective's history. To this day, even after courts have ordered them to turn stuff over, they have still not handed over everything. But what they have turned over was a gold mine for the defense. No wonder they didn't want Milke's trial attorneys to have this stuff so they could cross-examine the detective. They would have discredited him thoroughly in 20 minutes. The personnel files revealed case after case in which a court had found the detective had lied under oath and/or had violated a defendant's Miranda rights. Indeed, it seems the detective learned to stop telling courts when a defendant had asked for a lawyer as it only got the confessions he extracted thrown out. It seems hard to believe that anyone who had to convict a woman and sentence her to death on nothing but the word of this detective would convict if they had any inkling of his long history of misconduct.

What's really amazing in Milke's story is that once the defense finally, after years and years of trying, got their hands on the detective's files and were able to present them to a court, they still didn't prevail at first. Remarkably, a district court judge ruled all these files didn't raise any serious concern about Milke's conviction and sentence. The federal appellate court did this judge the honor of presuming the judge simply didn't read the files rather than presuming the judge read them and didn't care. And now despite their conviction resting solely on the testimony of perhaps the dirtiest cop in all of Arizona, the prosecutors still insist they're going to appeal this decision. And we still don't know what else the prosecutors are hiding about the cop's history as there are still gaps in his personnel files.

This is why I get so furious when people insist we should cut off the appeals for death penalty defendants. And it's why I got a little crazy when people rail against obstructionist defense attorneys who drag out the appeals process. Who dragged out the Milke case? Her defense attorneys who sought this incredibly relevant, probative material from day one? Or the prosecution who fought every step of the way and still haven't fully complied with court orders? Whose fault is it that she didn't get relief until 22 years later? The defense attorneys who presented compelling evidence of the detective's constant misconduct? Or the prosecutors and judges who refused to acknowledge that misconduct casts a serious doubt on Milke's conviction?

The vast, vast majority of the exoneration cases weren't found out to involve wrongful convictions until a decade or two of litigation and appeals. If we really only gave people one appeal and then a bullet, most of those innocent individuals would have been killed. Most people in Arizona were pretty darn convinced that Debra Milke was unquestionably guilty, so that standard line of fast-track executions for the "obviously guilty" would have worked against her and she'd have been killed with no one ever realizing how shady her conviction was.

So it seems only fair that the price the rabid, bloodthirsty pro-death penalty folks must pay is that we get to have round after round of appeals. Or you could demand better practices of your prosecutors. Demand that they not withhold evidence. Demand that they not fight for years to avoid testing DNA from old evidence. You really don't get to have it both ways, though. You don't get to have the permanent solution punishment and  truncated appeals. And you don't get to blame the defense bar for dragging things out. Believe me, the Debra Milkes of the country would give anything not to have to fight for 22 years to get their convictions overturned. But if we only gave them one appeal, we'd have an awful lot of innocent blood on our hands.