SUPERIOR COURT OF THE STATE OF ARIZONA COUNTY OF MARICOPA

Transcription

1 Michael D. Kimerer, Bar # KIMERER & DERRICK, P.C East Osborn, Suite 100 Phoenix, Arizona (602) mdk@kimerer.com Lori L. Voepel, Bar # JONES, SKELTON & HOCHULI, P.L.C North Central Avenue, Suite 800 Phoenix, Arizona Telephone: (602) Fax: (602) lvoepel@jshfirm.com minuteentries@jshfirm.com Attorneys for Defendant Debra Jean Milke SUPERIOR COURT OF THE STATE OF ARIZONA COUNTY OF MARICOPA Michael K Jeanes, Clerk of Court *** Electronically Filed *** I. OSUNA, Deputy 9/17/2013 1:38:57 PM Filing ID STATE OF ARIZONA, NO. CR v. DEBRA JEAN MILKE, Plaintiff, Defendant. PRELIMINARY RESPONSE TO STATE'S 9/13/13 MEMORANDUM TO CORRECT RECORD RE: SALDATE'S EXPRESSED INTENT TO INVOKE 5TH AMENDMENT PRIVILEGE AND CONSULT WITH COUNSEL (Assigned to the Honorable Rosa Mroz) Defendant, Debra Jean Milke, submits this preliminary response to the State's 9/13/13 Memorandum Re: Witness Invocation of Fifth Amendment Privilege and 23 Request for Hearing. This preliminary response is being filed for the purpose of 24 responding to the State's baseless claims that this Court and undersigned counsel have 25 somehow engaged in "witness intimidation" in order to "scare" Armando Saldate into not 26 testifying for the State, and to correct the record regarding when (and to whom) Armando 27 Saldate first expressed an intent to seek the advice of counsel and invoke his Fifth

2 1 Amendment privilege in this case. A full response addressing the substantive points 2 raised in the State's Memorandum will follow. 1 3 In paragraph two of its Memorandum, the State accuses this Court (and the 4 Ninth Circuit) of having "intimidated Mr. Saldate to the point of no longer wishing to 5 participate in the Defendant's trial." (State's Memo. at 2, ~ 2). As to this Court's 6 supposed "intimidation" of Mr. Saldate, the State alleges the following: (Id.). Mr. Saldate was willing to appear and testify without any mention of immunity until he was advised this Court wanted an affidavit to that effect. This directive in fact scared him to the point of seeking Mr. Debus' counsel and forewarning the Court that he intends to invoke his Fifth Amendment privilege. The Court's request, in concert with the Ninth Circuit's threat of possible civil rights investigations, has intimidated Mr. Saldate to the point of no longer wishing to participate in the Defendant's trial. The State made these baseless claims despite having direct knowledge through the County Attorney's own investigator, Mike Meislish, since July 2013 that Mr. Saldate: (1) was repeatedly avoiding the State's attempts to contact him; (2) was expressing resistance to cooperating with the State in this prosecution; and, most importantly, (3) was planning, in light of the Ninth Circuit's Opinion, to hire an attorney and said he may not testify without any type of immunity. (See MCAO Investigations Division 7/31113 Supplement #3 by M. Meislish Re: Armando Sal date, Jr., attached as Exhibit A). Despite possessing this knowledge on July 26, counsel for the State, Vince Imbordino, represented twice to this Court- most recently on August 23 (in response to the Court's direct questions on this topic) that Mr. Saldate would be testifying for the 1 The full response will address not only the State's alle~ations regarding other cases involving Saldate, but also Saldate's exposure to potential cnminal prosecution on a variety of grounds raised by undersigned counsel and outlined in the Ninth Circuit Opinion. It is not merely the threat of criminal and/or civil liability based upon the Ninth Circuit's referral to the U.S. Attorney's Office and U.S. Department of Justice that must be considered by this Court and Mr. Debus in determining whether Saldate can properly invoke his Fifth Amendment privilege

3 1 State, and that Saldate did not have counsel or believe that he needed counsel to advise 2 him prior to testifying. (See 8/23/13 Hearing CD). 2 Undersigned counsel did not know 3 about the County's investigative report regarding Saldate's desire for counsel and intent to 4 assert his Fifth Amendment privilege until the State disclosed it to them as one of 5 numerous documents on August 26, (See 8/26/13 from Melissa Wallingsford 6 to Ginger Stahly, attached as Exhibit B). The County Attorney's letter detailing the 7 discovery, including their investigator's report on his communications with Saldate, was 8 dated August 22, 2013, the day before Mr. Imbordino represented to this Court that Mr. 9 Saldate intended to testify and did not see a need to consult with counsel prior to doing so. 10 (See MCAO 8/22/13 Letter re: State's Disclosures, including "Copy of Det. Meislish's 11 MCAO reports and transcript of interview; Bates Stamped ", attached as 12 Exhibit C). Undersigned counsel submitted the County investigator's report regarding the 13 interview of Saldate as a supplemental exhibit during the August 30 Simpson hearing on 14 the Motion to Set Bail and noted that it directly conflicted with Mr. Imbordino's 15 representations at that hearing that Saldate never expressed a desire for counsel until this 16 Court asked for written confirmation from Saldate. (See Court Hearing Exhibit 11 and 17 8/30/13 Hearing CD). 18 In other words, notwithstanding their July 2013 investigator's report, 19 counsel for the State represented to this Court on August 23 that Mr. Saldate did not 20 believe he needed counsel, and then falsely accused this Court in its 9/13/13 21 Memorandum that "Mr. Saldate was willing to appear and testify without any 22 mention of immunity until he was advised this Court wanted an affidavit to that 23 effect [and that this] directive in fact scared him to the point of seeking Mr. Debus' Undersigned counsel obtained and reviewed this CD to confirm these representations by the State. A transcript of this proceeding has been ordered and will be provided to the Court as soon as it is ready. Counsel recalls at least one other occasion on which the State represented in response to a direct question by the Court that Saldate was available and planning to testify for the State, with no mention of their investigator's report. Counsel is in process of attempting to identify that other proceeding

4 1 counsel." Counsel for the State made these claims knowing they were false and baseless, 2 and while he possessed direct evidence of their falsity. 3 3 In a similar misleading vein, Maricopa County Attorney Bill Montgomery 4 publicly accused undersigned counsel of "witness intimidation" in a 9/13113 one-hour 5 press conference blatantly designed to try to persuade Mr. Saldate to ignore his attorney's 6 advice just one day after Saldate's attorney noticed this Court of his client's intent to 7 invoke the Fifth Amendment privilege. 4 He made this accusation despite the information 8 his office possessed since July 2013 that Mr. Sal date was not going to cooperate with the 9 State, and planned to hire counsel and assert his privilege. Moreover, undersigned counsel have had no communications with Saldate whatsoever since the January 2010 district court hearing. Mr. Sal date hired independent counsel of his own choosing and on his own volition. Finally, undersigned counsel had information as far back as May 2013 that Sal date had already consulted with counsel in 2010 in conjunction with the bribery and extortion investigation regarding Saldate's conduct as a Constable involving Belinda Reynolds. At that time, Mr. Saldate was advised by his then-counsel, Greg Thurston, to not speak with investigators regarding those allegations. investigations report, attached as Exhibit D). 5 (See AG's 9/24110 special By at least May 29, 2013, the County Attorney's Office had been made fully aware of the Reynolds' investigation, and of Mr. Saldate's consultation with and advice from counsel regarding this incident. (See 5/ As noted above, Mr. Imbordino also made this baseless claim (regarding the Court's request for written confirmation triggering Saldate's invocation) at the August 30 Simpson hearing, at which point undersigned counsel submitted the County investigator's report and stated on the record that it showed Imbordino's claim was false. 4 See, e.g., http :I lwww. azcentral. com/news/ arizona/ articles/ debra-milke-case-detectiveintimidated.html#protected. 5 Although the report also states that, according to Mr. Thurston, Mr. Saldate had already spoken with the Phoenix Police Department about the Reynolds allegations, the AG investigator later confirmed Saldate had not done so. (See exhibit 3 to 5/29/13 Letter to Vince Imbordino, attached as Ex. B to Motion to Set Bail) I 4

5 1 Letter to Vince Imbordino (and exhibit 3 to letter), attached as Ex. B to Defendant Milke's 2 Motion to Set Bail). 3 It was undersigned counsel's understanding that Mr. Sa1date had again 4 consulted with counsel shortly after the issuance of the Ninth Circuit Opinion, and 5 intended to assert his Fifth Amendment privilege in any re-trial of Ms. Milke. After 6 learning that Mr. Saldate's then-attorney, Greg Thurston, had returned to work as a 7 prosecutor for the County Attorney's Office sometime in or around early June 2013, 8 undersigned counsel properly suggested to this Court in its August 8 Motion to Suppress 9 that the Court should ensure Saldate is provided the opportunity to consult with counsel 10 prior to being asked under oath about, among other things, the Reynolds' investigation. 11 (See Motion to Suppress, p. 14, fn. 14). This Court did so, by properly exercising its 12 judicial obligation to ensure Mr. Saldate had the opportunity to consult with counsel if he 13 wished, and by asking the State to obtain verification from Mr. Saldate if he wished to 14 proceed without counsel. See, e.g., United States v. Jaeger, 538 F.3d 1227, (9th 15 Cir. 2008) (holding witness was not coerced into invoking Fifth Amendment privilege in 16 part because the court provided the witness an opportunity to consult with counsel prior to 17 deciding whether to testify); State v. Maldonado, 181 Ariz. 208, 209, 889 P.2d 1, 2 (App ) (trial court appointed independent counsel to advise witness after defense counsel 19 informed court the witness' proposed testimony might be incriminating). The Court 20 indicated it also wanted this written verification from Mr. Saldate in order to avoid any 21 delays in the suppression hearing in the event Saldate decided he would not testify without 22 the representation and advice of counsel. 23 Undersigned counsel will submit a more complete response to the State's 24 Memorandum later this week (including addressing the multiple grounds upon which 25 Saldate faces potential criminal liability), but felt it was important to immediately correct 26 the State's misstatements regarding when Sal date first expressed a desire to invoke his 27 Fifth Amendment privilege and what prompted (and did not prompt) him to do so

6 DATED this 1 ih day of September, ORIGINAL electronically filed this 1 ih day of September, COPY mailed this 1 ih day of September, 2013, to: Vince H. Imbordino MARICOPA COUNTY ATTORNEY'S OFFICE 301 W. Jefferson, 8th Floor Phoenix, Arizona Attorneys for Plaintiff Larry Debus Debus, Kazan and Westerhausen, Ltd. 335 East Palm Lane Phoenix, AZ Attorneys for Armando Saldate, Jr. Is/ Ginger Stahly KIMERER & DERRICK, P.C. By Is/ Lori L. Voepel (wlpermission for) Michael D. Kimerer 1313 East Osborn, Suite 100 Phoenix, Arizona JONES, SKELTON & HOCHULI, P.L.C. By Is/ Lori L. Voepel Lori L. V oepel 2901 North Central Avenue, Suite 800 Phoenix, Arizona Attorneys for Defendant Debra Jean Milke

7 EXHIBIT A

8 MARICOPA COUNTY ATTORNEY'S OFFlCE lnvestjgations DIVISION SUPPLEMENTAL REPORT FORM _Report I Case#: (supplement# 3} Tracking#: Victim:!VIilkc, Christopher Defcndan t: Milke, Debra.Jean Charge(s): Mm der Date: 07/31/2013 Detective: Mike Mcislish, #458 Attorney: Vince lmbordino Approved by: '?' Subject: Armand_o L Saldate,.Jr. H/M 1127/1949 On April22, 2013 I contacted An11ando Saldate by phone at :)j) 0905 hours. /\Her introducing myself (Armando remembered me from Phoenix PD), I explained that the MCAO is reviewing the case on the chance we may have to decide on re-filing charges and then a potential trial Although he stated he read the Circujt Opinion. Anmmdo \-vas under the impression that the issues involving him had been adjudicated in Federal District Court vvith the Attomey General's Office and that I should contact Julie Done at the A-Ci's office_ I explained again why vve were reviewing the case_ I told Armando that vve may have to speak with him in the future regarding this case and he said ok. Armando was upbeat when talking with me anu at no time did I perceive that Annando \:vould not cooperate with us_ After speaking with Armando on April 22m 1, I tried numerous times to contact him by phone and left messages on his voice mail, requesting he contact me_ The dates/times I tried to contact him are: July l5 1 h 1035 hours July I 055 hours July 25 1 h 1250 hours On July 26 1 h at approximately 1045 hours, I contacted Am1ando at his home. After speaking with him for a while, I served him with a subpoena for the Voluntariness Hearing scheduled for August 30rh_ Am1ando was pleasant and civil while \VC talked; but he is very disenchanted (to say the least) in that he states he has never received any apparent public support from either the MILKE

9 (supplement# 3) AG 's office, the Phoenix Police Department or even our office. Due to any potential DOJ civil rights investigation(s), he wanted me to advise our office that he would be obtaining at attorney and may not testify at the hearing without any type of immunity. He told me he has been badgered frequently by various media outlets and reporters coming by his home, which needless to say, has added to his frustration. I had been leaving messages at his correct phone number; but Annando said he was not going to me back, knowing l would eventually come to his home. He did provide me his address and requested I contact him by in the future. MCAO/ID/FORMOI 1/REY (4/2003) MILKE

10 EXHIBITB

11 Page 1 of 1 LORI VOEPEL To: Subject: LORI VOEPEL FW: MILKE Attachments: Letter from MCAO Bates pdf; BS Meislish MCAO reports and transcript_redacted. pdf; BS # A. pdf; BS # pdf; BS # _Redacted.pdf From: Melissa Wallingsford [mailto:mwallingsford@kimerer.com] Sent: Monday, August 26, :05 PM To: Ginger Stahly Cc: MDK Kimerer, Michael; LORI VOEPEL; Rhonda Neff Subject: RE: MILKE We received the attached letter regarding additional discovery in the mail today. I ran down to the MCAO and picked up the CD. I will attach the discovery in the next couple of s. I am also scanning in the documents Arizona Milke gave Mr. Kimerer at the hearing and will those to you as well. l\lclissa l\1. \Vallingsford Legal Assistant to l'vlichael D. Kimerer and Rhonda 1':. Neff K.IMER.ER & DERRlCK, P.C E OSBORN ROAD, SUITE 100 PHOENIX, ARIZONA TELEPHONE: (602) FACSIMILE: (602) /16/2013

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13 ;fffilartcopa <!tountp ~ttornep BILL MONTGOMERY August 22, 2013 VIA MAIL Michael Kimerer Kimerer & Derrick, P.C E. Osborn Road, Ste 100 Phoenix, AZ RE: State v. Debra Milke CR A Dear Mr. Kimerer: As part of its duty of discovery under the Arizona Rules of Criminal Procedure, Rule 15.1, the State has discovery materials to supply to you. Those materials comprise the following: CD-ROM containing: Copy ofdet. Meislish's MCAO reports and transcript of interview; Bates Stamped Copy of PPD DR # (A)- Supplement 1 through 34; Bates Stamped Copy of PPD DR # Supp 1 through 3; Bates Stamped Copy ofppd DR # Original through 85 Bates Stamped Copy ofppd DR # Supp 1 through 6; Bates Stamped Copy ofppd DR # ; Bates Stamped Copy ofppd DR # ; Bates Stamped Copy ofppd DR # ; Bates Stamped Copy ofcr Grand Jury Transcript; Bates Stamped Copy ofppd DR # ; Bates Stamped Inclusive: 1 CD Please have your authorized representative pick up the materials at the Office of the Maricopa County Attorney, 301 West Jefferson, 4th Floor (reception desk), Phoenix, Arizona. Thank you. Sincerely, \ ~-\ :--- -'\.~-K.f. \'\,_ \ ~-.. '. }-- 1 J \ Kathie Taylor for JeffColbe Paralegal Homicide Bureau I 'lv HOMICIDE BUREAU 301 WE.ST JEFFERSON STREET PHOEN!X. AZ (602) TDD (602) FAX (602)

14 EXHIBITD

15 STATE OF ARIZONA OFFICE OF THE ATTORNEY GENERAL SPECIAL INVESTIGATIONS SECTION REPORT DATE WRITTEN BY AGENT: September 24, 2010 AGI/LF NUMBER: P Doc# CASE NAME: Saldate REPORT TYPE: Greg Thurston phone call AGENT: Mike EdwardsJVE SUPERVISOR: Andy Rubalcava ~ PAGE 1 OF 1 PAGE(S) On 9/24/2010 I was phoned by Greg Thurston. Mr. Thurston said he was stating for his client that there was no sex or bribe involving Ms. Reynolds and his client, Armando Saldate. He believed she was making up these charges, and did not know what her motivation was. In January or February of 2010 Armando Saldate had received some media attention because "The Milke Case" was overturned, and would have to be retried. Armando Saldate was an important witness in that case. There were also newspaper articles stating that Armando Saldate was a constable. There was one incident in which a reporter came to his house, and said he wanted to interview Armando Saldate about what it was like to be a constable. Once the reporter was inside he began asking questions about the Milke case. Armando Saldate kicked the reporter out of the house, and the cameras were going all the time. Mr. Thurston stated that his research had shown that Belinda Reynolds had been evicted with forcible detainers 3 times in the last 3 years. Mr. Thurston said that several months ago Phoenix PD detectives had come to Armando Saldate's house and interviewed. him about this alleged incident. When he was interviewed at that time, Armando Saldate denied anything inappropriate occurred. Because of his injuries in the automobile accident, Armando Saldate has retired as a constable. He is still undergoing extensive physical therapy as a result of the accident. Mr. Thurston said that he had to advise his client not to be interviewed in this matter, and his client was accepting his advice. We then concluded the conversation. End of report.