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PHOENIX -- Arizonans are not entitled to details of exactly how police departments can track cell phones -- and their owners -- a judge has concluded.
PHOENIX (AP) — In a scathing critique of Arizona's criminal justice system, a state appeals court Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.
The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke's trial about a detective with a long history of misconduct and lying. The court called prosecutors' actions "a severe stain on the Arizona justice system."
A three-judge panel of the appeals court said it agreed with Milke's argument that a retrial would amount to double jeopardy.
The failure to disclose the evidence "calls into question the integrity of the system and was highly prejudicial to Milke," the court wrote. "In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required."
The court said the charges against Milke in the 1989 death of her son Christopher can't be refiled, but prosecutors could appeal Thursday's ruling to the state Supreme Court.
Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in December 1989. He was then taken into the desert near Phoenix by two men and shot in the back of the head.
Authorities say Milke's motive was that she didn't want the child anymore and didn't want him to live with his father.
She was convicted in 1990 and sentenced to death. The case rested largely on her purported confession to Phoenix police Detective Armando Saldate, which he did not record.
Milke, 50, was on death row for two decades, and the Arizona Supreme Court had gone so far as to issue a death warrant for Milke in 1997. The execution was delayed because she had yet to exhaust federal appeals.
The appeals court said Thursday it wasn't expressing an opinion on Milke's guilt or innocence, though it heavily criticized authorities for staking much of their case on a detective with credibility problems.
A federal appeals court threw out Milke's first-degree murder conviction in March 2013, saying prosecutors knew about a history of misconduct by the detective but failed to disclose it. Maricopa County prosecutors were preparing for a retrial.
Milke's appellate attorney, Lori Voepel, was ecstatic at Thursday's victory.
"We're all thrilled," Voepel said. "We still have the gag order so we can't say much more than we're all thrilled with the opinion."
Milke has been free on bail since September 2013 as she awaited retrial.
"This is really a sock in the gut — it's a cheap shot," said Arizona Milke, Christopher's father and Debra Milke's ex-husband. "She shouldn't walk free, because she's guilty."
Maricopa County Attorney Bill Montgomery, whose office is handling the case, said he plans to ask the Arizona Supreme Court to overturn Thursday's ruling. Montgomery said the accusations of misconduct happened well before he took over as the county's top prosecutor and would not happen today, citing safeguards such as having detectives record interviews with suspects.
Montgomery also said he would not be pursuing the case if he believed the evidence could not lead to a conviction in Christopher's killing.
"He should not be forgotten in all of this. Justice and due process for Christopher is a right that he has, too," Montgomery said. "And it's the job of prosecutors, unfortunately in situations like this, where we have to be the voice of the voiceless."
Milke has maintained her innocence and denied she ever confessed to the killing. The two men who led her child to his death in the desert were convicted of murder but refused to testify against Milke.
That left jurors with Saldate's word alone that she told him about her involvement. Saldate has since retired, and The Associated Press has made repeated efforts to reach him for comment.
In its ruling overturning Milke's conviction, the 9th U.S. Circuit Court of Appeals cited numerous instances in which Saldate committed misconduct in previous cases, including lying under oath and violating suspects' rights. The federal appeals court also asked the Justice Department to investigate whether Saldate had committed civil rights violations.
Prosecutors insist Milke is guilty, but their ability to try her again was limited by the fact that Saldate said he wouldn't testify. He fears potential federal charges based on the 9th Circuit's accusations of misconduct.
In December, Superior Court Judge Rosa Mroz granted Saldate's request to assert his Fifth Amendment right, allowing him to refuse to take the stand.
The state Court of Appeals overturned that ruling in April and said Saldate would be forced to testify at the retrial. Both county and federal authorities said they don't intend to seek charges against the detective based on any of the accusations leveled by the federal appeals court.
Milke, whose mother was a German who married a U.S. Air Force military policeman in Berlin in the 1960s, has drawn strong support from citizens of that nation and Switzerland, neither of which has the death penalty.
Milke's mother died in Germany this year after a battle with cancer. A week before the August death, a judge had denied Milke's request for permission to travel to Germany to visit her mother.
PHOENIX -- Time is running out for Arizona to keep licenses out of the hands of dreamers.
“With his executive order, President Barack Obama’s decision to act unilaterally outside of Congress has set back the debate on real immigration reform — and has made congressional action and useful solutions even more difficult to accomplish. It has only produced more liberal governmental stalemates.”
PHOENIX (AP) — The family of an unarmed drug suspect fatally shot by a Phoenix police officer who mistook a pill bottle for a gun is attempting to delay the man's autopsy, their attorney said Friday.
PHOENIX (AP) — The deadly shooting of a black, unarmed drug suspect by a white Phoenix police officer who mistook a pill bottle for a gun demonstrates the challenges law enforcement agencies face at a time of unrest over police tactics.
With barely a month left in office, Gov. Jan Brewer is making a last-ditch effort to keep driver's licenses out of the hands of dreamers.
State officials have agreed not to pursue anyone from book sellers to Internet posters under a new “revenge porn” law, at least not for the time being.
PHOENIX -- Arizonans may get a chance to see who provided Gov. Jan Brewer some of the information for her book and what they told her.
PHOENIX (AP) — Maricopa County Sheriff Joe Arpaio, who has often clashed with the federal government over the enforcement of immigration laws, has filed a lawsuit to stop new policies announced by President Barack Obama.
The suit filed Thursday in federal court in Washington on Arpaio's behalf contends Obama acted outside his constitutional authority by not going through Congress.
It asks the court to block the changes that include making an estimated 5 million immigrants who are in the U.S. illegally eligible for work permits and for protection from deportation.
Arpaio said he went to court on behalf of himself and all Americans.
"I am not seeking to myself enforce the immigration laws -- as this is the province of the federal government," he said in a statement. "Rather, I am seeking to have the president and the other defendants obey the U.S. Constitution."
The lawsuit said Obama was "hijacking" previous immigration regulation and law by changing the definition of key terms to "create a radically new and different regime of immigration law and regulation."
Arpaio's lawsuit was filed by Larry Klayman, a conservative activist and attorney who has filed hundreds of lawsuits against the federal government. He founded the government-watchdog group Judicial Watch in 1994 and left the group in 2003.
Obama's administration previously stripped 100 of Arpaio's deputies of their powers to make federal immigration arrests and filed a pending lawsuit against the Sheriff's Office alleging racial profiling and other civil-rights violations.
Arpaio, a frequent critic of the administration's deportation policies, has said the lawsuit against his office was a politically motivated attack by the administration aimed at courting Latino voters.
Arpaio's volunteer cold-case posse also has investigated the authenticity of Obama's birth certificate.
Obama laid out his executive actions during a prime-time television address Thursday.
His changes would mainly cover parents of U.S. citizens and of legal residents as long as the parents have been in the U.S. for five years or more.
Obama also changed enforcement priorities by emphasizing the deportation of new illegal arrivals and criminals.
Congressional Republicans have accused Obama of exceeding his authority by not going through Congress. Obama said in his televised speech that his hand was forced by congressional inaction to fix the broken immigration system.
NAPA, Calif. — Hot air balloons drifting in multicolored splashes against a blue heaven are a common sight in the Napa Valley. But lately, more than balloons have been taking to the wine country skies.
PHOENIX -- Hundreds of immigrants in this country illegally who are locked away on state charges will now be entitled to seek bail -- at least in Maricopa County if not elsewhere in Arizona.
Hundreds of immigrants in this country illegally who are locked away on state charges will now be entitled to seek bail — at least in Maricopa County if not elsewhere in Arizona.
PHOENIX -- Attorneys for the American Civil Liberties Union want the U.S. Supreme Court to stay out of the fight over whether Arizona can deny bail to people in this country illegally, at least for the time being.
Attorneys for the American Civil Liberties Union want the U.S. Supreme Court to stay out of the fight over whether Arizona can deny bail to people in this country illegally, at least for the time being.
A federal judge has voided one of the last remaining sections of the controversial package of anti-immigration laws approved by Arizona lawmakers in 2010.
PHOENIX -- Immigrants in this country illegally awaiting trial on criminal charges won't be getting out of jail, at least not yet.
State Health Director Will Humble said Tuesday he's not going to automatically quarantine health workers returning to Arizona from West Africa despite widespread public support for the move.
A federal appeals court rejected a last-ditch plea by an Arizona prosecutor to salvage Proposition 100, potentially paving the way for dozens of people locked up while awaiting trial to now seek bail.
Citing concerns it broke state law — and despite insistence from its superintendent to the contrary — the Gilbert Public Schools Governing Board voted to redact pages from its textbooks tied to abortion and reproduction.
PHOENIX -- A federal appeals court rejected a last-ditch plea by an Arizona prosecutor to salvage Proposition 100, potentially paving the way for dozens of people locked up while awaiting trial to now seek bail.
The U.S. Justice Department wants a racial profiling ruling against Maricopa County Sheriff Joe Arpaio's office to stand as the judgment on some of the federal government's allegations in a broader civil rights case against the sheriff's office.
PHOENIX -- Maricopa County Attorney Bill Montgomery wants a federal appeals court to give him what legal foes call a "do-over'' of his bid to salvage a state law denying bail to many people not in this country legally.
Montgomery conceded in filings with the 9th U.S. Circuit Court of Appeals that a prior county attorney did not present evidence showing that undocumented individuals were less likely to show up for court dates than citizens or legal residents. The appellate judges, citing that lack of evidence, ruled last week that lack of facts, coupled with disparate treatment of those without documents, make the 2006 voter-approved Proposition 100 illegal and unenforceable anywhere in Arizona.
But Montgomery, in his latest plea, said that was because the challengers to the law effectively admitted that to be true. So he said there was no need to present any statistical evidence.
Cecillia Wang, attorney for the American Civil Liberties Union, said that's not true. She said Montgomery is now seeking a "do-over'' for flaws in the way his office handled the case in the first place.
"They had every opportunity to show that Proposition 100 was supported by some indication there was a flight risk issue here,'' she said. "And they didn't do it,'' Wang continued. "You know why? Because those numbers don't exist.''
Montgomery said he does have such data, even though former County Attorney Andrew Thomas, who was in office when the law was challenged, chose not to present it. And he said the appellate court should give him a chance to make the case now.
"The story is not, 'I want a do-over, Andy Thomas screwed up,' ''Montgomery said. He said it's a question of "simple fairness.''
He said if the appellate court is relying on a lack of evidence to support Proposition 100 they should direct there be a court hearing to explore that issue before voiding a voter-approved state constitutional amendment.
This is more than a question of what happens going forward.
Montgomery said there are "a couple of hundred'' people now in his own county jails awaiting trial who were denied bail because of Proposition 100. He said if the ruling is not overturned, that will allow each of those people to demand a hearing to determine if they should be released -- a process that would be repeated in each of the other 14 counties -- which will cause a backup in handling other cases.
He also told the appellate judges if do not want to give him another chance to make his case, they should at least delay implementing their ruling to let him seek review by the U.S. Supreme Court.
The measure makes bail unavailable to those charged with "serious felony offenses'' if they are in this country illegally and if "the proof is evident or the presumption great'' that the person is guilty of the offense charged.
Proponents said that anyone who has crossed the border illegally probably has few ties to this country, making them a greater flight risk.
Voters approved the measure on a 3-1 ratio.
But appellate Judge Raymond Fisher, writing for the majority of the 11-member court, said there is a constitutional presumptive right of those arrested to be released on bail.
Fisher acknowledged that Arizona has a "compelling interest'' in ensuring that those accused of crimes show up for trial. But he said a blanket rule that those in the country illegally accused of certain crimes must be held without bond is not justified.
"The record contains no findings, studies, statistics or other evidence ... showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents,'' Fisher wrote.
It is that evidence that Montgomery now contends he can marshal. But it may not matter.
Fisher said he and his colleagues are not saying it is up to the Montgomery to produce such evidence. But he said the absence of such evidence is a key factor in showing that Proposition 100 was not narrowly crafted to address a specific problem.
Fisher suggested there is, in fact, evidence to the contrary.
He pointed out there were undocumented individuals who had been arrested before Proposition 100 was approved who had been released without bail or after posting bond. He said they still showed up in court -- only to then be "needlessly remanded into state custody'' after the ballot measure took effect.
Montgomery has another hurdle to overcome: the breadth of the measure.
Fisher pointed out that Proposition 100 applies not just to those accused of serious offenses but "also relatively minor ones,'' like altering a lottery ticket with intent to defraud, unlawful copying of a sound recording, or theft of property worth between $3,000 and $4,000.
What Thomas did or did not do plays into this case in another way.
Appellate Judge Richard Tallman, dissenting from the majority ruling, said there was evidence of a sort presented: statements made by Thomas in favor of the measure during the 2006 campaign. Thomas argued that "far too many illegal immigrants accused of serious crimes have jumped bail and slipped across the border in order to avoid justice in an Arizona courtroom.''
But Fisher said that statement is not substantiated with any real data.
And he said "is not a credible source,'' having been disbarred two years ago on charges he used his office to "destroy political enemies'' and for filing unfounded criminal charges.
Follow Howard Fischer on Twitter at @azcapmedia.
Maricopa County Attorney Bill Montgomery wants a federal appeals court to give him what legal foes call a “do-over” of his bid to salvage a state law denying bail to many people not in this country legally.