Reflections on the Brady Violations in Milke v. Ryan: Taking Account of Risk Factors for Wrongful Conviction


Brady violations contribute to wrongful prosecutions, wrongful convictions, and wrongful sentences, including death penalty verdicts. The defendant in Milke v. Ryan, Debra Milke, spent 22 years on Arizona’s death row before her defense counsel succeeded in obtaining her release in 2013 based on the Ninth Circuit’s recognition of the prosecutor’s Brady violations in her case. In a recent empirical study sponsored by the National Institute of Justice (NIJ Study), cases of wrongful convictions were compared with cases in which wrongful prosecutions were halted before they reached the wrongful conviction stage. The purpose of the NIJ Study was to identify the factors that are uniquely associated with the failure of prosecutors to halt the prosecutions that become wrongful convictions. The NIJ Study determined that one of those risk factors is the existence of Brady violations—the failure of the prosecutor to disclose to the defense “favorable evidence rising to a material level of importance.” The interaction of other factors can magnify the risk of wrongful conviction, as when a Brady violation occurs in a case with weak prosecution evidence and a lying witness. The Milke prosecution exhibited many of the risk factors identified in the quantitative results of the NIJ Study, as well as a variety of the factors that emerged in the qualitative observations.

This article offers reflections upon Milke as a case study of how the NIJ risk factors can illuminate the significance of Brady violations and their impact upon a defendant’s ability “to present a complete defense” and avoid a wrongful conviction. By violating Brady and Giglio v. United States, the prosecutor in Milke was able to construct a trial narrative of guilt using the testimony of a detective with a history of misconduct, which included unconstitutional interrogations and false testimony about confessions. Milke testified that she was innocent, that she never confessed to the detective, and that he violated her Miranda rights by ignoring her request for counsel. The detective testified that he gave Milke the Miranda warnings, that she never invoked her rights to counsel or silence, that she knowingly waived her rights orally, and that she confessed to conspiracy to murder. The prosecution’s confession narrative, as prepared and performed on the stand by an experienced police witness, was effectively unimpeachable without access to the undisclosed evidence of his misconduct. Both the Milke prosecutor and the state trial judge exhibited their resistance to the enforcement of Brady by ignoring its well-settled constitutional mandate at every phase of the litigation. For Milke, Brady’s Due Process doctrine provided no protection from the risk of a wrongful conviction.

This article proposes that judges, prosecutors, and defense counsel need to become aware of how the risk factor of a Brady violation can interact with other risk factors and contribute to breakdowns in the adversarial process that increase the risk of wrongful conviction. Such awareness should lead courts to enforce Brady obligations to better insure against that risk. The Milke prosecution illustrates how resistance to the enforcement of Brady by prosecutors and judges reflects a lack of awareness of how the Brady duty of disclosure serves as a vital safeguard against very real risks. In the era of exonerations, courts can no longer rely on old assumptions about the reliability of convictions. Yet those assumptions continue to be reflected in the tolerance of Brady violations by some courts.

Part II of this article establishes the context for the Ninth Circuit’s Milke decision by contrasting the present awareness of the reality of wrongful convictions with the lack of such awareness during the era of Milke’s conviction. Part III explores the ways in which Milke’s case illustrates resistance to the enforcement of Brady by the prosecutor and the courts that reviewed the case before it reached the Ninth Circuit. Part III(A) analyzes the events of the ten-year saga of the Brady violation that occurred when the prosecutor and trial judge improperly rejected defense counsel’s request for disclosure of the detective’s personnel file as a source of Giglio impeachment evidence. Part III(B) analyzes the almost twenty-year saga of the multiple Brady violations based on the prosecutor’s failure to disclose the pattern of judicial orders and rulings regarding the detective’s history of lying under oath and conducting unconstitutional interrogations, as reflected in court records. These analyses reveal how the prosecutor obtained a variety of benefits from these Brady violations, and how reviewing courts failed to apprehend their significance, even in a capital case in which the defendant claimed to be innocent.

Part IV of the article explains how the Milke record exhibited five of the risk factors for wrongful convictions identified in the NIJ Study’s quantitative findings, as well as additional risk factors revealed in its qualitative findings. Part V considers the ongoing resistance to the Ninth Circuit decision displayed by the current Milke prosecutor, who is determined to obtain Milke’s conviction again by using the detective’s testimony, and who has obtained a pre-trial ruling to prevent the detective from invoking the Fifth Amendment. This section concludes with reflections regarding the continued existence of the risk factors for wrongful conviction in Milke’s case and the prosecutor’s resistance to the Ninth Circuit’s ruling.

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