Death Sentences Reversed Due to Prosecutorial Misconduct

by Christopher Zoukis

Death sentences imposed on prisoners in Arizona, Virginia and Tennessee have been reversed by federal appellate courts as a result of misconduct by prosecutors – including withholding evidence and making improper closing arguments.

Abuses by Arizona Prosecutors

An Arizona prisoner who spent more than two decades on death row after allegedly confessing to a police detective that she participated in the 1989 murder of her 4-year-old son was released on $250,000 bond on September 6, 2013.

Debra Jean Milke, 50, was freed after the detective who claimed she confessed to him stated he would refuse to testify at Milke’s retrial, citing his Fifth Amendment right against self-incrimination.

Retired Phoenix police detective Armando Saldate, Jr. invoked his Fifth Amendment rights after the U.S. Court of Appeals for the Ninth Circuit vacated Milke’s death sentence in March 2013 and directed the clerk to send copies of the opinion to federal authorities for “possible investigation into whether Detective Saldate’s conduct ... amounts to a pattern of violating the federally protected rights of Arizona residents.”

The appellate court’s ruling came after Milke learned that prosecutors had withheld information about at least eight cases in which confessions, indictments or convictions had been thrown out because Saldate lied under oath or committed other misconduct.

Saldate’s credibility was essential to the case presented by the Maricopa County District Attorney’s Office, because he claimed that Milke had confessed to taking part in her son’s murder during an interrogation in a closed room. His interview with Milke was not recorded, and Saldate told the jury he had destroyed his notes of the interview.

Milke denied ever making such a statement, but the jury was not informed of Saldate’s history of lying under oath. As the confession was the only direct evidence against Milke, the Court of Appeals reversed her conviction.

“No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty,” wrote Ninth Circuit Judge Alex Kozinski. See: Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013).

Saldate’s refusal to testify in a retrial likely means Milke’s confession will not be admitted, and without it “there’s really no case” noted her attorney, Michael Kimerer.

Milke was convicted on charges of murder, kidnapping, conspiracy and child abuse on October 12, 1990 – less than a year after her housemate, James Styers, and another man drove her son, Christopher, to a secluded ravine and shot him three times in the head, allegedly to collect on a life insurance policy. Milke had sent her son with Styers to see Santa Claus at a mall on the day the 4-year-old was murdered. Styers and a co-defendant were convicted of first-degree murder and sentenced to death.

Milke’s retrial is scheduled for January 2015; she has challenged the second trial on double jeopardy grounds, citing prosecutorial misconduct. Saldate may be forced by the court to testify.

Death Sentence Vacated in Virginia

Justin M. Wolfe, a Virginia prisoner convicted of capital murder in 2002, won a new trial after a federal district court overturned his conviction and death sentence in December 2012. The court found that prosecutors had engaged in gross misconduct by failing to disclose that the triggerman in the case had been encouraged to testify that Wolfe hired him to shoot rival drug dealer Danny Robert Petrole, Jr.

U.S. District Court Judge Raymond A. Jackson found the prosecution’s conduct so egregious that he not only vacated Wolfe’s conviction and ordered his release, but also prohibited the Commonwealth of Virginia from reprosecuting him for the murder of Petrole if any such prosecution involved the testimony of triggerman Owen M. Barber IV. Barber admitted to investigators that he had presented false testimony to avoid the death penalty himself.

While Judge Jackson’s reprosecution order was later overturned by the Fourth Circuit Court of Appeals, retrying Wolfe without Barber’s testimony would be “tenuous” at best, according to Jackson. In May 2013, the Fourth Circuit affirmed the district court’s order that Wolfe be released from prison pending any retrial. See: Wolfe v. Clarke, 718 F.3d 277 (4th Cir. 2013), cert. denied.

The Commonwealth’s prosecution team was found to have engaged in a wide array of misconduct in prosecuting Wolfe for the March 2001 murder of Petrole, the son of a retired Secret Service agent and the kingpin of one of Virginia’s largest-ever drug rings. That misconduct included
choreographing and coordinating witnesses’ testimony, withholding tapes of witness interviews from the defense and knowingly allowing false testimony to be introduced at trial.

According to Judge Jackson, Prince William County Commonwealth’s Attorney Paul B. Ebert – who has sent more defendants to death row in Virginia than any other prosecutor – failed to turn over a report showing it was police detectives who first introduced the idea to Barber that Wolfe masterminded the murder of Petrole, and who gave Barber the option of implicating Wolfe or facing the death penalty. Ebert’s staff had suppressed evidence indicating that Barber confessed to his roommate that he had acted alone, the court found.

In 2005, Barber signed an affidavit swearing that he was offered a plea bargain that spared him the death penalty if he falsely testified that Wolfe had hired him to kill Petrole.

“Justin had nothing to do with the killing ... I lied and implicated Justin because I felt I had no choice ... I had to choose between falsely testifying against Justin or dying,” he said. Barber received 38 years in prison after testifying against Wolfe.

Wolfe’s attorneys have alleged that as late as September 2012, Ebert and another prosecutor, Richard Conway, threatened Barber during a jailhouse visit, telling him he could face the death penalty for recanting his testimony, which violated his plea agreement.

“The Commonwealth’s representatives incessantly bombarded Mr. Barber with both veiled and overt threats of reprosecution, suggestive statements about how they knew what the real truth was, attempts to turn Mr. Barber against attorneys who represented him ... and emotional pleas involving religion,” Wolfe’s defense counsel stated.

Wolfe had spent over a decade on death row; he was denied bond after being re-indicted for Petrole’s murder, and remains incarcerated pending another trial.

Ebert, who has recused himself from the case, had previously been criticized by the Fourth Circuit in another death penalty case involving John Allen Muhammad, one of the D.C. Beltway snipers, for withholding evidence from defense attorneys. The appellate court held that the withheld evidence was not material in that case, and Muhammad was executed in 2009.

Tennessee Prosecutor Made Improper Remarks

A prosecutor’s over-the-top closing statement during a capital trial’s sentencing phase – which included comparing the defendant to “the devil incarnate” and referencing cannibal murderer Jeffrey Dahmer, the Lord’s Prayer and other inappropriate comments – resulted in a new sentencing hearing for Ronnie M. Cauthern, convicted of raping and killing an Army nurse in 1987.

Cauthern’s death sentence was vacated by a panel of the Sixth Circuit Court of Appeals on November 14, 2013, which also found that his defense attorney failed to present a coherent defense during the sentencing phase.

Cauthern’s resentencing will be his third for the murder of Rosemary Smith, a captain in the U.S. Army Nurse Corps, who was killed along with her husband, Patrick Smith, also an Army captain and nurse. Cauthern’s initial death sentence was set aside after a judge improperly allowed jurors to hear a post-arrest statement Cauthern made to the police, and he was again sentenced to death in 1995.

The murders of the Smiths at their home in Clarksville, Tennessee were gruesome, according to then-Assistant Attorney General Steve Garrett, who appeared for the state in the 1995 resentencing hearing. Cauthern and a co-defendant allegedly placed Rosemary Smith in a closet and forced her to listen as her husband was killed in the next room. She was then raped and strangled with a scarf in a “protracted event” that resulted in her death.

In his closing arguments during the sentencing phase, Garrett invoked the name of the devil several times and referred to Cauthern as “the evil one” who “appeared in Minnesota in the form of Jeffrey Dahmer and ... appeared at the door of Patrick and Rosemary Smith.”

He continued: “You cannot negotiate with the evil one, ladies and gentlemen. You cannot deal in good faith with the evil one. You have got to destroy and destroy, or he and his benefactors will destroy you. He’ll destroy us. He’ll destroy our children. The evil one took the name of Ronnie Cauthern on that day. That was his name, and he’s beyond redemption.... Engage him in combat and destroy him. Do your duty....”

Garrett also invoked the Lord’s Prayer and The Rolling Stones’ song “Sympathy for the Devil,” and suggested the jury could “send a message to the evil one.”

The Tennessee Supreme Court found that those closing remarks did not unfairly prejudice Cauthern, though it did caution prosecutors against making similar statements in the future. A U.S. District Court judge apparently agreed, noting, among other points, that Garrett’s comments “were not likely to have convinced the jury that [Cauthern] was, in fact, the devil incarnate.”

In reversing the district court, Sixth Circuit Judge Eric Clay wrote, “While that may be true, its real relevance is that it highlights the outlandish nature of the prosecutor’s remarks ... one would need not to believe that [Cauthern] was himself the devil in order to be improperly inflamed such that the verdict cannot be trusted.”

Accordingly, Cauthern’s death sentence was reversed and the case remanded to the state trial court for resentencing. See: Cauthern v. Bell, 2013 U.S. App. LEXIS 22944 (6th Cir. 2013), rehearing and rehearing en banc denied.

Additional sources: Associated Press, www.abc15.com, www.azfamily.com, www.cnn.com, www.azcentral.com, www.tennessean.com, www.timesfreepress.com, http://valawyersweekly.com, www.wusa9.com, www.prosecutorialaccountability.com, www.slate.com, Washington Post, www.timesdispatch.com

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