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Lori L. Voepel, Bar #015342

JONES, SKELTON & HOCHULI, P.L.C.

2901 North Central Avenue, Suite 800

Phoenix, Arizona 85012

Telephone: (602) 263-1700

Fax: (602) 200-7807

lvoepel@jshfirm.com

Michael D. Kimerer, # 002492

Amy L. Nguyen, # 023383

KIMERER & DERRICK, P.C.

221 East Indianola Avenue

Phoenix, AZ 85012

Telephone: (602) 279-5900

Fax: (602) 264-5566

MDK@kimerer.com

ANguyen@kimer.com

Attorneys for Petitioner Debra Jean Milke

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

DEBRA JEAN MILKE,

Petitioner,

v.

DORA SCHRIRO, et al.,

Respondents.

NO. CV 98-0060-PHX-RCB

PETITIONER’S LEGAL 

MEMORANDA IN SUPPORT OF 

EVIDENTIARY HEARING RE: 

WAIVER

DEATH PENALTY CASE

I. INTRODUCTION

The State bears a “heavy burden” in proving a voluntary, knowing, 

intelligent waiver of a defendant’s Miranda rights. Miranda v. Arizona, 384 U.S. 436 

(1966); North Carolina v. Butler, 441 U.S. 369, 373 (1979); United States v. Heldt, 745 

F.2d 1275, 1277 (9th Cir. 1984). Moreover, there is a presumption against finding a 

waiver of Miranda rights. Butler, 441 U.S. at 373. Nothing in the appellate record preexisting the evidentiary hearing supported the state court’s waiver finding, a point 

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essentially conceded by the State at oral argument.1 Although the State argued that an 

“implied waiver” occurred here because the interrogation continued after Detective 

Saldate read Debra her rights and asked if she understood,2 the 9th Circuit rejected that 

argument, determining that: "A complete review of the record discloses no evidence 

supporting a finding that petitioner voluntarily, knowingly and intelligently waived her 

rights under Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). See 28 U.S.C.Â § 2254(d), 

(e)." (9/28/09 9

th Circuit Order). In finding no evidence supported the state court’s 

waiver finding under Miranda and § 2254(d), (e), the 9th Circuit necessarily determined 

that: (1) the state court's waiver finding involved an unreasonable application of clearly 

established federal law; (2) its determinations of fact in this regard were “objectively 

unreasonable” on the existing record; and (3) its findings failed to survive an intrinsic 

challenge of objective reasonableness and were not entitled to a “presumption of 

correctness” under § 2254(e)(1). See also Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). 

The State's evidence at the evidentiary hearing is in all material respects the 

same as that presented in the voluntariness hearing and at trial. This Court should 

therefore find, as did the 9th Circuit, that the evidence in this case fails to demonstrate 

Debra voluntarily, knowingly and intelligently waived her Miranda rights. 

II. THE EVIDENCE

A. State’s Evidence.

At the waiver evidentiary hearing on January 11-12, 2010 the only “new” 

evidence submitted by the State are photocopies of two Miranda rights’ cards. (Ex. 51). 

Evidence of a website was submitted by the State as impeachment against Paul Huebl, 

only part of which was admitted. (Ex. 57(a)). The State’s only witness was Armando 

Saldate, the case agent who interrogated Debra Milke. Saldate provided no new evidence 

on the issue of waiver and acknowledged on cross-examination he had nothing new to add 

to the record which had not already been presented to the 9th Circuit. (WH 1/11/10 at 35). 

 

1

 (8/20/08 OA Transcript at 24-26).

2

 (Respondents' 11/7/08 Supplemental Answering Brief Re: Waiver).

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This was consistent with Saldate's prehearing interview. (Ex. 21 at 5-7).

Saldate reaffirmed much of the information contained in his supplemental 

departmental report (Ex. 50); his testimony at the voluntariness hearing (Exs. 52, 53 ); his 

pretrial interview (Ex.54); and his 1990 trial testimony (Exs. 55, 56). The salient points of 

Saldate’s waiver hearing testimony are as follows. Saldate was an experienced homicide 

detective, who was called on December 3, 1989 by his supervisor, Sgt. Ontiveros, to assist 

in the investigation surrounding the disappearance of Christopher Milke. (WH 1/11/10 at 

9-12, 48-49). Saldate acknowledged that he knew the law about Miranda and had been 

given instructions about Miranda throughout his career. (WH 1/11/10 at 38). Yet, he also 

testified that, contrary to both the law3 and the policy of the Phoenix Police Department,4

if someone asked for an attorney, he would not cease the interrogation but would continue 

to “have a conversation” with that person. (Id. at 38-40).5 When Saldate arrived at the 

Phoenix Police station he was briefed on the status of the investigation. Styers and Scott 

were still at the station and had been talking with Detective Mills who was working on the 

case. (Id. at 49-50). Saldate first tried to talk with Jim Styers, but could not get any 

incriminating statements from him. (Id. at 52). Saldate was critical of the way Detective 

Mills was interrogating Roger Scott (Id. at 54) and decided he would talk with Scott 

alone. (Id. at 53). Saldate had a “gut suspicion” Scott was involved so he immediately 

read him his rights. He used his “interrogation style” of getting within 6-12 inches of the 

subject; told Scott he would not tolerate lies; threatened to go question Scott’s sick 

mother; and eventually obtained incriminating statements. (Id. at 55-62). Scott gave no 

 

3

See Edwards v. Arizona, 451 U.S. 477 (1981) (all questioning must immediately 

cease after a suspect requests counsel); and Smith v. Illinois, 469 U.S. 91, 98 (1984) 

(emphasizing that Edwards set forth a “bright-line rule” that the interrogation must cease).

4

 (See Ex.19 at ER 930, 1989 PPD Operations Order C-5, ¶ 14(E), which states: 

“When a person wishes to remain silent or have an attorney present during questioning, 

interrogation must cease immediately. In such cases, if an investigation would apparently 

be furthered by continuing the interrogation, the department’s Legal Advisor may be 

contacted with a supervisor’s permission and asked to assist.”). 

5

 Substantial evidence was presented that Saldate has a history of ignoring police 

procedures and defendants’ Constitutional Rights, including a pattern of failing to 

scrupulously honor invocations of Miranda. (Exs.7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17). 

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information incriminating Debra Milke during Saldate’s interrogation of him. (Id. at 63).

Saldate and Mills drove with Roger Scott to the crime scene. While en 

route, Saldate says Roger Scott for the first time mentioned in an offhand remark that 

Debra Milke was also “involved,” but gave no details to support this remark. (WH 

1/11/10 at 63-64). With only this general, vague statement and no physical evidence to 

connect Debra to the crime (id. at 75), Saldate flew by helicopter to Florence to 

interrogate her. (Id. at 64-65). He was told by his supervisor, Sgt. Ontiveros, to tape 

record the interrogation, but he did not bring a tape recorder with him or ask for one when 

he arrived in Florence, even though recorders were readily available. He indicated it was 

not his practice to record interrogations because he believes it deters a subject from 

talking freely. (Id. at 66-71). Before seeing Debra Milke at Florence, Saldate made the 

decision to immediately arrest her (id. at 76, 82) and was confident that he would get a 

confession from her. (Id. at 77). Even though he quibbled over whether he went there to 

interview her or interrogate her (id. at 45-47), he conceded that under Phoenix Police 

Department (PPD) procedures, he went there to interrogate her. (Id. at 47-48). He had 

made up his mind she was guilty based on one comment by Scott, even though the policy 

of the PPD was that an officer should keep an open mind when he does an interrogation. 

(Id. at 82-83). Saldate described his “interrogation style” as always the same. He takes 

control of the situation; directly confronts his subjects; gets within 6 to 12 inches in front 

of them; insists they maintain eye contact with him; and tells them he will only listen to 

the truth and won't “tolerate lies.” (Id. at 55-58). 

When Saldate arrived in Florence, he immediately went to the Sheriff’s 

office and went to the room where Debra was being held. (Id. at 76). He introduced 

himself (id. at 80) and asked a family friend who was present to leave. He shut the door 

and wanted a “one-on-one” situation with Debra. (Id. at 79). He did not ask Phoenix 

Detective Hamrick, who was present just outside the door, to witness the interrogation. 

(WH 1/11/10 at 101). Inside the room, Debra was seated in a chair against the wall. He 

pulled another chair up directly in front of her, got within 6-12 inches from her, and 

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looked at her eye-to eye. (Id. at 80). Saldate testified he then told her that her son had 

been found shot to death and that she was being arrested for involvement in the crime. (Id. 

at 80-81; 20). Debra began to scream and make noises. (Id. at 81). On direct 

examination, Saldate said Debra was only “excited” (id. at 26), but he conceded on cross 

that he had at other times described her as “hysterical.” (Id. at 81).6 Saldate immediately 

said, “I won’t tolerate that!” (Id.). Saldate admitted that throughout the interrogation, he 

told Debra he would not “tolerate lies” and would only “tolerate the truth.” (Id. at 84-85). 

Saldate then removed a “rights” card from his badge case and read verbatim the Miranda

rights as printed on the card. One of the cards he is shown on direct examination is a copy 

of the card he says he used to read Deborah her rights. (WH 1/11/10 at 20-21). There is 

no printed statement on the card asking if a subject agrees to waive his or her rights. (Ex. 

51). There is a place for the interrogating officer to initial, but no place for the subject to 

acknowledge in writing that the “rights” were read. (Id.). At no time during this exchange 

(or at any other time) did Saldate ask Debra if she would waive her rights. (WH 1/11/10 at 

90). Saldate claims that asking Debra if she understood her rights was sufficient and that 

he was not required to ask if she waived her rights. (Id. at 24). Saldate claims Debra 

acknowledged she understood her rights by nodding her head twice and then saying “yes” 

when he demanded a verbal response. (Id. at 23-24, 85).7 Saldate testified that right after 

Debra indicated she understood her rights, he asked her if she wanted the interrogation 

recorded. According to Saldate, Debra indicated she did not want it recorded. (Id. at 17-

18, 85-86).8 Saldate then took total control of the interrogation room. With his chair 

directly in front of Debra, he leaned within 6-12 inches of her face. He forced her to make 

eye-contact with him, and told her repeatedly, “I will not tolerate lies.” (WH 1/11/10 at 

 

6

 Saldate claims Debra “feigned” being emotionally distraught because he didn’t 

see any tears, and said he thought she was just trying to buy time to think. (WH 1/11/10 at 

26, 81). He admitted this is just an opinion and a “gut feeling” on his part. (Id. at 84).

7

 Debra said she denied telling Saldate she understood her rights, and instead told 

him she did not understand her rights as she had never been in trouble or arrested before. 

8

 Debra said she remembers Saldate asking about taping the interrogation, but her 

response was not just “No,” but rather “No, I need a lawyer.” (WH 1/11/10 at 141-143). 

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79-83). Whenever she deviated from what he believed to be the truth (ie: she’s guilty) or 

reacted emotionally, he told her he would “not tolerate” that behavior. (Id. at 84-85, 92-

93). Saldate described his interrogation style as being “honest” and “truthful” with the 

subject. (Id. at 58).9 He said he looked Debra, who was emotional, in the eye and told her 

“I’m going to deal with you honestly and I want you to deal honestly with me.” (Id. at 

80). In fact, Saldate immediately lied to Debra by telling her that both Styers and Scott 

had implicated her in the murder. (Id. at 94-97; Ex. 50 at 1). At the hearing, he admitted 

that was not the truth. (Id. at 95). Styers has never implicated Debra in the murder of her 

son. The interrogation lasted approximately 30 minutes. (Id. at 22, 96). Saldate claimed 

that Debra confessed, never denying involvement in the murder of her son and never 

insisting she was not involved. (Id. at 29). Debra has always testified she told Saldate she 

was not involved in the crime, and after Saldate ignored her request for an attorney, she 

tried to defend herself. (Id. at 149, 152-153). Whenever she tried to defend herself or 

explain why she couldn’t have been involved, however, Saldate would “get in her face” 

and say he would not “tolerate any lies.” Saldate conceded that whenever Debra got off 

track or started going “sideways” he would tell her, “I won’t tolerate that type of behavior. 

I just want the truth.” (Id. at 96). He also admitted that in this case, he was even less 

“tolerant” because he had been up 12 hours working on his day off. (Id. at 98-99). 

Saldate did nothing to memorialize or corroborate what he claims occurred during his 30 

minute interrogation of Debra. He did not record her statement (during or after 

interrogation); he destroyed his notes; he did not bring Detective Hamrick (or any other 

officer) in to witness/corroborate her purported confession; he never had Debra sign or 

 

9

 Saldate also said he would never “intentionally lie” or put his position on the line 

by lying. (WH 1/11/10 at 31-32). Yet, he was disciplined for lying during an internal 

PPD investigation into misconduct involving a female motorist, until after he was given a 

polygraph examination. (Ex. 18; ER 00913-15). In issuing its “separation notice,” PPD 

stated that Saldate’s “image of honesty, competency, and overall reliability must be 

questioned.” (Id. at 00915). Although this Court limited questioning at the hearing 

regarding this incident, the exhibit itself should be considered, as this Court necessarily 

determined it was relevant when it turned a copy of this disciplinary record over to 

Petitioner following an in camera review in habeas proceedings, and by making it part of 

the expanded record. (See 9/26/03 Order Granting Motion to Extend the Record). 

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write anything saying she had waived her rights; and, even though he was in total control 

of the situation, he made no effort to corroborate or memorialize what he claims happened 

during the 30 minutes of interrogation. He could have memorialized what occurred, but 

chose not to do so. (Id. at 101-105). He conceded this created a “he said-she said” 

situation, and essentially acknowledged he believes that “as a police officer and 

investigator of that case,” his version should be viewed as more credible. (Id. at 92-93). 

B. Petitioner’s Evidence.

Debra (who was not required to present any evidence at the hearing) 

provided additional testimony and exhibits supporting her position of no valid waiver. 

1. Debra’s Testimony.

Debra's testimony at the hearing was also essentially the same as that 

presented at trial. (Ex. 1). By the time Saldate arrived at the Florence Sherriff's Office to 

interrogate Debra at 8:00 pm Sunday night, she was physically and mentally exhausted 

and emotionally drained. (WH 1/11/10 at 138). In addition to not hearing any news about 

Christopher since learning he was missing Saturday afternoon, she had just 2-3 hours of 

sleep since Saturday morning (id. at 137-38), had only eaten 1⁄2 sandwich since Friday 

night (id. at 131), and had ingested alcohol and prescription medication. (Id. at 127-28). 

She had waited in a medical room with a family friend for 2 hours for Saldate to arrive, 

and was not allowed to leave the room even for a drink of water. (Id. at 137). 

Saldate came into the room, asked her friend to leave, shut the door, sat in a 

chair at the desk, took out a pen and started writing on a notebook. (Id. at 139; Ex. 1: 

10/3/90 at 12-13). Debra was seated in a chair next to the desk up against the wall. (WH 

1/11/10 at 136; Ex.22). She asked if he had heard anything, which he ignored. (WH 

1/11/10 at 140; Ex. 1: 10/3/90 at 13). After a few moments he said, “We found your son, 

he was murdered and you are under arrest.” (Id.). She “screamed,” “started crying” and 

yelled, “what, what.” (Id.). He said he was “not going to tolerate” her crying and she 

moaned, “Why are you doing this?,” but he just “told [her] to be quiet.” (Id. at 140-41; 

13). He then pulled out a card and read her Miranda rights. (Id.). She said she heard him 

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speaking words, but didn’t fully comprehend them. (Id.; see also WH 1/11/10 at 176-178). 

She did recall him saying she “had the right to remain silent” and mentioning “the word 

‘attorney’” several times. (WH 1/11/10 at 141; Ex. 1: 10/3/90 at 17). He asked if she 

understood her rights, and she said she did not, that she had never been in trouble or under 

arrest. (Id. at 141; 17). Additionally, Debra said she was in "shock because of the horror 

that my son was dead," "disbelief of being accused of his murder," and confused about 

why he was reading her rights, as she had nothing to do with it. (Id. at 141-44; 17). 

Saldate ignored her, did not offer to read the rights again or to have her read them herself, 

and simply asked, “Do you want this interview recorded?” (WH 1/11/10 at 142-44; Ex. 1: 

10/3/90 at 17; Ex: 1 10/4/90 at 77-80). Debra said, “No, I need a lawyer.” (Id.).10 

Saldate ignored her request for counsel and moved his chair up directly in 

front of hers so that their knees were touching. (WH 1/11/10 at 145-46; Ex. 1: 10/3/90 at 

17-18). He asked Debra’s age and said “I have a daughter about your age, so I understand 

how you feel.” (Id. at 146-47; 18). He leaned forward, put his hands on her knees and 

said she could trust him, that he was her friend and was there to find out what happened. 

(Id.). Saldate was in her face, about 6 to 12 inches away. (Id. at 147). Debra just sat 

there crying and not saying anything, and he said “I’m not going to tolerate this activity," 

“I’m here to question you about the murder of your son, and this is your opportunity to 

tell me the truth," and "I won't tolerate any lies.” (Id. at 147-48; Ex. 1: 10/3/90 at 18). 

Debra said, "What do you want from me?" and he said “The truth. I'm here to get the 

truth.” (Id. at 148; 19). Debra told him she didn't know what happened, and didn't know 

anything about Chris' murder because she wasn't involved in it. (WH 1/11/10 at 149). She 

then started to defend herself by explaining why she wasn't the type of person who would 

do something like this, but he wouldn't believe her. (Id. at 149-155). She was "reeling" 

 

10 Debra testified she was not really saying she didn't want it recorded; rather, she 

wanted an attorney and for the interrogation to stop. (WH 1/11/10 at 141-145, 153). She 

also explained she realized she at least needed an attorney even though she didn't fully 

understand her rights, including her right to stop the interrogation at any point after 

Saldate ignored her assertion and proceeded with questioning. (Id. at 176-180). 

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and didn't know what he wanted to hear. (Id. at 149). Saldate stayed in her face, and kept 

saying throughout the interrogation, "you're not telling me the truth," "I came here to get 

the truth," "I'm not going to tolerate any lies." (Id. at 152-154). Debra said she did not 

know she could have stopped talking to Saldate because (1) he ignored her request for an 

attorney, (2) he kept "badgering" her and accusing her of not being truthful, (3) he was a

physically imposing man who was right in her face, and (4) she was confused and in 

shock and felt she had do "defend" herself from his vile accusations. (Id. at 153-154). 

During the 30 minute interrogation, Debra said Saldate never showed or 

gave her the Miranda card to read, never asked her to initial the Miranda card or offer to 

have her sign anything acknowledging that she understood her rights, never asked her to 

sign anything saying she wanted to waive her rights and talk to him, never asked if she 

wanted to waive her rights or talk to him, never offered to bring another officer or anyone 

else into the room to witness the interrogation, did not bring a tape recorder or offer to go 

get one, and did not offer to have her write out a statement after the interrogation or offer 

to re-interview her on tape. (Id. at 160-62). Saldate also never gave Debra any 

opportunity to speak with a lawyer or to make a phone call, even though there was a 

phone on the desk in the room. (WH 1/11/10 at 162; Ex. 1: 10/3/90 at 39, 56).

Debra testified that she did not learn police were saying she had "confessed" 

until she was in the receiving area at Madison jail just hours after her arrest and return to 

Phoenix. (WH 1/11/90 at 157). A private investigative reporter (who she later learned 

was Paul Huebl) asked to speak with her, at which time he asked if she had confessed as 

police claimed. (Id. at 158). Debra was shocked and confused and adamantly denied 

doing so. (Id.). He then said he understood it had something to do with insurance money, 

and she said "I heard that too and that's crazy." (Id.). She then asked when she would be 

allowed to talk to an attorney. (Id. at 167). Debra has always maintained that she never 

gave Saldate a confession or admitted to any involvement in the murder of her son and 

that she asked for an attorney, but Saldate ignored her. (WH 1/11/10 at 158-160; Ex. 1; 

Exs. 2, 3). In addition to her trial testimony and statements to Paul Huebl within hours of 

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her arrest, Debra also told these things to a jail psychiatrist, Dr. Kassell, within 2-3 

months of her arrest. (WH 1/11/10 at 158-60; Exs. 2, 3 52). Dr. Kassell testified at the 

voluntariness hearing that Debra told him Saldate walked into the room, said her son had 

been found murdered and she was under arrest, after which she became hysterical and 

Saldate said he “wouldn’t tolerate” her crying and screaming and was there to get "the 

truth." (Ex. 52: 9/10/90 at 82). He testified that Debra said Saldate then Mirandized her 

but she "did not fully comprehend what was being said because she was too involved with 

absorbing the information that her son was killed.” (Id. at 82). It was Dr. Kassell's 

opinion within a reasonable degree of medical and psychiatric certainty that at the time, 

"she may have heard what was being said and may have understood to a certain degree 

what was being said but I doubt that she really fully comprehended what the Mirandizing 

was all about." (Id. at 94).11 Dr. Kassell recorded his session with Debra, and the tape 

was admitted into evidence at the voluntariness hearing. (Id. at 87, 95, 168-72; ER 2045: 

Tab 99). This tape (& transcript) was also admitted at the waiver hearing, with part of the 

tape played during Debra's testimony. (WH 1/11/10 at 159-60; Exs 2,3). 

2. Paul Huebl’s Testimony.

Paul Huebl, an investigative reporter and licensed private investigator 

testified regarding his interaction with Debra within hours of her arrest. (WH 1/12/10 at 3-

46). Huebl had previously provided an affidavit, which is part of the habeas record and 

was admitted as a hearing exhibit. (Ex. 20). His testimony about his conversation with 

Debra was consistent with her testimony (WH 1/12/10 at 11). He also recalled Debra 

saying she had asked for a lawyer but hadn't seen one yet. (Id.). Huebl said he did not talk 

to Debra's trial attorney about this interaction because he became angry with Huebl for 

talking to Debra in jail and because he thought the attorney knew about the interview, as it 

was taped and played to over one million television viewers. (Id. at 11-13).12 

 

11 Dr. Kassell's expert opinion that Debra did not fully comprehend her Miranda

rights was uncontroverted by the State at the voluntariness hearing. (Exs 52, 53). 

12 Counsel also played a video of a subsequent television broadcast of Huebl's 

interview with Debra after her conviction, in which he references the fact that he 

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3. Professor Richard Leo’s Testimony.

Professor Leo provided expert testimony regarding the interrogations 

practices and procedures employed by Detective Saldate in Debra's case (and in others), 

and his two reports (and CV) were admitted by stipulation. (WH 1/12/10 at 48-135; Exs 

4, 5, 6).13 Interrogations practices, Miranda requirements/practices, and false/wrongful 

convictions have been the main focus of Leo's research during his 20 year career as a 

social scientist and law professor. (Id. at 48-53; Ex. 4). As one of the foremost 

interrogations experts, Leo has numerous publications (including one of the leading 

interrogations textbooks) and has testified in 185-86 voluntariness hearings, trials and 

post-conviction proceedings. (Id. at 51-52, 85-86).

Leo did an extensive evaluation of the materials in this case. He prepared an 

initial report focused on the practices employed by Saldate and the reliability of his 

account in light of those practices and Saldate's testimony and report. (Ex. 5). He then 

reviewed additional materials and prepared a supplemental report solely on the Miranda 

waiver issue. (Ex. 6). In Leo's opinion, Saldate's interrogation practices relating to: (1) 

Miranda compliance (waiver and handling Miranda assertions), and (2) his complete 

failure to memorialize or corroborate the waiver or the interrogation in any way, were not 

consistent with good interrogation practice throughout the country at the time in question, 

and were in fact "strikingly bad" interrogation practices. (WH 1/12/10 at 70; Ex. 6). Leo 

explained how easy it is to obtain and document a waiver (express or implied) and that 

police are trained in ways of doing so because they know the State has the heavy burden 

of proving a Miranda waiver, and they need more than an officer's subjective account of 

what occurred. (WH 1/12/10 at 70-79). Leo, who has observed/reviewed hundreds of 

interrogations, opined that what occurred in Debra's case, especially the complete failure 

 

interviewed Debra within hours of her arrest and that she denied at that time having 

confessed to involvement in her son's murder. (WH 1/12/10 at 17-23; Ex. 23). 

13 Leo's reports and opinions should be considered because the State opened the 

door to interrogation practices and procedures through Sadate's testimony and for the 

other reasons set forth in Petitioner's Response to the State's Motion to Preclude. 

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to create any type of objective, independent record of the waiver (or the interrogation), 

was "extraordinary," especially in the context of a capital case. (Id. at 58-65, 70-72, 133-

134). He also testified that in the cases he has examined in which there was an implied 

waiver, there was at least some objective memorialization of the interrogation (through 

recording) and/or of the waiver (through signing a rights card or some other 

documentation showing they understood their rights and wanted to move forward with the 

interrogation), and/or the facts of what happened during the interrogation were 

undisputed. (Id.; Ex. 6). But he has never seen a case in which a valid express or implied 

waiver finding was based solely on a "swearing contest" between the officer and the 

accused, where critical facts of what occurred during the interrogation were in dispute, 

including whether the suspect asserted her right to counsel. (Id.).14 

Leo also testified that Saldate's practice of continuing to "have a 

conversation" with suspects after they asserted their right to counsel was not at all in 

accordance with general police practices (then or now), as it is understood that the "bright 

line rule" of Edwards required police to "scrupulously honor" assertions of rights by 

immediately ceasing interrogation. (Id. at 73-75). He also noted that Saldate's practice 

defied the Phoenix Police Department policies and procedures in place at the time. (Id. at 

75; Ex. 19). Leo also testified that in this "swearing contest" created by Saldate's failure 

to create an objective record, Saldate's subjective account of what occurred is simply not 

reliable enough to support a finding of implied waiver, relative to the hundreds of other 

interrogations he has reviewed. In reaching this opinion, Leo pointed to Sadate's practice 

of ignoring assertions of Miranda rights, combined with Saldate's demonstrated 

"confirmation bias" (that he believed Debra was guilty at the outset and appears to have 

misconstrued her statements and body language in inculpatory ways), Saldate's "wildly 

implausible assertions" regarding what occurred during the interrogation, and his 

documented tendency to misstate what occurs in interviews when he prepares his 

 

14 Leo's testimony based on his observation and review of hundreds of 

interrogations is consistent with the reported cases on implied waiver, discussed below. 

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supplemental reports (such as in other witness interviews conducted in this case, such as 

with Debra's sister, Sandra). (WH 1/12/10 testimony; Ex. 5, 6). Leo stated that his 

opinion is not merely that Saldate isn't "telling the truth," but rather that Saldate's account 

of what occurred is not plausible or reliable in light of his expertise, research and 

experience in the field of police interrogation practices. (Id. at 90-91, 108-111, 125-26). 

III. LEGAL ARGUMENT.

A. The State Cannot Meet Its “Heavy Burden” of Proving a Valid Express 

or Implied Waiver Occurred. 

The question of waiver “must be determined on ‘the particular facts and 

circumstances surrounding that case, including the background, experience, and conduct 

of the accused.’” Butler, 441 U.S. at 374-75. According to Miranda, “[a]n express 

statement that the individual is willing to make a statement and does not want an attorney 

followed closely by a statement could constitute a waiver.” 384 U.S. at 475. But “a valid 

waiver will not be presumed simply from the silence of the accused after warnings are 

given or simply from the fact that a confession was in fact eventually obtained.” Id. Thus, 

“an express statement can constitute a waiver, but silence alone after such warnings 

cannot do so.” Butler, 441 U.S. at 373. In addressing whether an express waiver is 

required, Butler emphasized that “an express written or oral statement of waiver of the 

right to remain silent or of the right to counsel is usually strong proof of [its] validity,” 

however, an express waiver “is not inevitably either necessary or sufficient ....” Id. at 373. 

“The question is not one of form, but rather whether the defendant in fact knowingly and 

voluntarily waived” her rights. Id. Thus, although courts must presume the defendant did 

not waive her rights, “in at least some cases waiver can be clearly inferred from the 

actions and words of the person interrogated.” Id. (emphasis added). 

Here, it is undisputed that there is no evidence of an express oral or written 

waiver. Thus, the State must meet its “heavy burden” of proving waiver (and overcoming 

the presumption against waiver) through a theory that the waiver in this case was implicit. 

This it cannot successfully do, because cases finding implied waiver are clearly distinct in 

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the following ways: (1) the facts of what happened during the interrogations were 

uncontroverted or undisputed and/or (2) there were objective, independent records created 

of the interrogation and/or the conduct constituting waiver; plus (3) they involved conduct 

by the accused that “clearly inferred” a waiver of rights. See Butler, 441 U.S. at 373.

In Butler, the agent’s testimony was uncontroverted. 441 U.S. at 370. He 

testified that Butler was given an “Advice of Rights” form, which he read. Butler 

acknowledged he understood but refused to sign a waiver form. Id. at 371. The agents 

explained he was not required to speak or sign the form, but they wanted him to talk with 

them. He replied, “I will talk to you but I am not signing any form,” then made 

inculpatory statements. Id. (emphasis added). Butler said nothing when advised of his 

right to counsel and never requested counsel or attempted to terminate questioning. The 

Supreme Court found there was “no doubt” Butler was “adequately and effectively 

apprised of his rights,” and his refusal to sign the waiver form did not preclude a finding 

of waiver on the uncontroverted facts of that case. Id. at 374-376. Debra’s case is not 

even remotely similar to Butler. There was no dispute that Butler agreed to waive his 

rights, but simply refused to sign the waiver form. In contrast, Debra has never admitted 

to waiving her rights and maintains she asserted her right to counsel. This is not simply a 

failure or refusal to sign a waiver form. Debra was never asked if she wanted to waive her 

rights, and she has always disputed Saldate’s claim that she failed to request counsel. 

Several other courts addressing implied waiver have distinguished Butler on 

its facts. In United States v. Earle, 473 F.Supp.2d 131, 134 (D. Mass. 2005), the suspect 

signed a booking form containing Miranda warnings and a question: “do you understand 

what I have told you?” The statement “yes, I understand” with a signature line followed 

this question. It also contained a description of Earle’s property and a signature line for 

him to acknowledge the property being held. Id. However, the form did not contain a 

place to indicate whether Earle wished to waive his rights. Id. Moreover, although Earle 

signed the form, there was no evidence he read it first. The agent testified he also orally 

administered the rights, but the court found the government failed to prove Earle heard or 

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understood the warnings. Id. at 133. The agent’s report indicated he initiated the 

interview by asking if Earle had been advised of his rights and understood them, which 

Earle said he did. Id. at 134. The agent testified that Earle never invoked or referred to 

his rights to remain silent or to counsel, and the agents “did not ask if he wanted to waive” 

his rights.” Id. The court determined that the government failed to carry its “heavy 

burden” of proving waiver. Id. at 138-39. As in Debra’s case, “the conflicting evidence” 

in Earle indicated the officers “either ignored their duty to determine whether the 

defendant wished to waive his Miranda rights or lulled him into believing that it was not 

important whether he understood them ...” Id. at 139. 

Another case distinguishing Butler is Jackson v. U.S., 404 A.2d 911 (D.C. 

Cir. 1979). Jackson was read his Miranda rights and indicated on a police form that he 

did not wish to answer questions and wanted an attorney present. Id. at 915. Later, while 

providing handwriting exemplars, Jackson began a rambling monologue in which he 

eventually inculpated himself. The court found the government failed to satisfy its “great 

burden” of showing waiver because: 1) Jackson was re-questioned before being given the 

opportunity to consult counsel; 2) he did not possess sufficient capacity to make a

knowing, intelligent waiver; and 3) the record “d[id] not reflect any extensive findings of 

facts as to an intentional and knowing relinquishment.” Id. at 923; see also Shreeves v. 

U.S., 395 A.2d 774, 781 (D.C.App. 1978). Jackson found Butler inapplicable because 

“appellant, unlike Butler, requested the presence of an attorney.” Id. at 922, fn 17. Debra 

also contends she requested counsel, which like Jackson, makes her case distinct from 

Butler, where the failure to assert rights was uncontested. 

In Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004), the facts were also 

undisputed. Paulino was advised of his rights, stated he understood and wanted to talk, 

initialed the admonitions on a waiver form, and wrote “yes” next to questions asking 

whether he understood his rights and wished to give up his right to remain silent. Id. at 

1085. Paulino did not complete the item asking whether he wished to give up his right to 

speak with and have an attorney present during questioning, but wrote, “I want to talk to 

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Felix” and signed the form. Id. at 1085-86 (emphasis added). Detective Felix then 

activated a hidden tape recorder, reiterated Paulino’s rights, and asked if he understood. 

Id. Paulino asked “Where’s the attorney?” and Felix said none were present, but he had a 

right to one before questioning. Paulino asked, “You mean it’s gonna take him long to 

come?” and Felix responded, “Well, I’m just asking you a question, man - do you, do you 

want to talk to me?” Id. Paulino said, “Okay, I want to talk to you but I wanna know 

what’s going on.” The detective said he would explain, and Paulino said, “I want to talk 

to you Detective Felix.” Id. (emphasis added). 

The Ninth Circuit noted that Paulino “said he understood his rights - in 

particular, his right to counsel - and said he wanted to talk.” Id. at 1087. And, “when 

specifically advised of the right to counsel, far from being silent, he actually repeated, ‘I 

want to talk to you’” ... and “wrote ‘I want to talk to Felix’ at the bottom of the 

advisement form.” Id. Applying Butler, the Ninth Circuit found Paulino’s “verbal and 

written responses to Felix’s advisement of the right of counsel, when considered in 

context, constituted a waiver of that right.” Id. It rejected the argument that Paulino’s 

failure to confirm his waiver in writing and questions regarding the location of and time it 

would take an attorney to arrive did not constitute an unambiguous request for counsel. Id. 

These undisputed facts are far different from Debra’s case, where a dispute exists as to 

whether she asked for counsel at the outset, and there is no evidence that Saldate asked if 

she wanted to waive her rights or speak with him without an attorney. The detective in 

Paulino also obtained initials on a waiver form and recorded the interrogation, which 

allowed the Court to review the questions and statements. Here, there was no waiver 

form, no recording, no witness, nor any other form of corroboration. 

The State has previously claimed Paulino supports a finding of implied 

waiver because it involved an ambiguous request for counsel, whereas the state court here 

found that Debra never requested counsel. This merely reinforces the importance of 

having an objective record, as Paulino’s ambiguous request for counsel was documented 

by a recorded interrogation the court could evaluate. No one can verify Debra’s claim 

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that she requested counsel because Saldate, who controlled the conditions of the 

interrogation, made a conscious decision to not create an objective record or to 

corroborate what occurred. The state court’s finding that Debra didn’t ask for counsel 

is thus based on nothing but its objectively unreasonable decision to believe a police 

officer over Debra notwithstanding Saldate’s track record of disregarding Miranda rights.

In Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000), Burket was 

advised of his rights, after which the detective returned to the interrogation room to 

complete a booking form. Burket initiated a conversation, and the detective again issued 

warnings. Burket said he understood his rights “and wanted to talk to Detective 

Hoffman.” Id. (emphasis added). Although he never said “I waive my Miranda rights” or 

signed a waiver form, the court found Burket’s “cooperation and desire to speak with [the 

detective], coupled with his acknowledgement that he understood his rights, constituted an 

implied waiver ...” Id. A videotape was also made of Burket’s interrogation, so again, the 

facts showing waiver and failure to invoke are not in dispute. Id. at 195. 

Although United States v. Cazares, 121 F.3d 1241 (9th Cir. 1997), may 

initially appear to support the State’s position, it deserves closer examination. First, it is 

not clear what actually happened during that interrogation because detailed facts are not 

set forth in the opinion -- merely a summary of the government’s showings and a finding 

that “the sum of the evidence presented to the district court supports the conclusion that 

[despite Cazares’ language difficulties], he understood his rights ... and knowingly, and 

intelligently waived them.” Id. at 1244. Second, it is not clear what Cazares was arguing, 

but it appears the central issue involved whether the Spanish speaking suspect understood

his rights. Although the Court also found the showings sufficient to support implied 

waiver, it did not address what, if any, dispute existed regarding waiver. Third, unlike 

Debra’s case, Cazares did not claim he asserted his right to counsel. Finally, two officers 

were present at the interrogation, which corroborated what occurred. Id.

United States v. Younger, 398 F.3d 1179 (9th Cir. 2005), is also distinct. 

Younger was read his rights and acknowledged his understanding, but then made a 

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spontaneous inculpatory statement prior to questioning. Id. at 1183-84. He was then 

transported to the police station where, during a recorded interview, he was again 

Mirandized, said he understood, and made additional inculpatory statements. Id. 

Although he asked, “if I’m right, I can have a lawyer present ...?” and the officer 

answered, “if you want one,” this was interpreted as merely an indication that Younger 

understood his rights. Id. Younger later said in response to a question about a backpack’s 

contents, “I don’t know about the bag. We’ll talk about that in front of a lawyer or 

something ...” Id. Younger reiterated that a waiver need not be express, but emphasized 

the presumption against waiver. Id. at 1185. It also noted that the officer’s decision to 

forego the simple step of requesting an express waiver “resulted in unnecessary time and 

effort and a waste of judicial resources.” Id. at 1186, fn 5. Nevertheless, the Ninth Circuit 

upheld the implied waiver finding on the grounds that after the officer advised Younger of 

his rights but before questioning, he made a spontaneous inculpatory statement and 

responded to further questions without referencing counsel. It also found Younger’s 

conduct at the station was consistent with implied waiver. Id. at 1186. And the interview 

was recorded and showed there was no clear request for counsel. 

None of these cases are similar to Debra’s. They involve primarily 

undisputed or verifiable facts clearly showing the suspect waived his rights and wanted to 

proceed with questioning or spontaneously volunteered information. None involved a 

“swearing contest” over disputed facts regarding what happened in the interrogation 

where there was no recording, no witness, no signed statement or waiver, and no 

other form of corroboration, plus no physical evidence connecting the suspect to the 

crime. Contrary to the State’s claim, Debra is not arguing that an implied waiver can 

never occur during an unrecorded interrogation. Rather, her position is that the disputed 

nature of the facts of what occurred during the interrogation (especially regarding her 

request for counsel), and the lack of any objective, independent record or corroboration, 

make it impossible to “clearly infer” waiver from the record, which is what Butler

requires to find implied waiver. This is a fundamental difference between Debra’s case 

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and those finding an implied waiver based on undisputed, uncontested, memorialized or 

otherwise corroborated facts. Additionally, cases finding a valid implied waiver contain 

something more than just continued questioning following issuance and acknowledgement 

of Miranda rights. Even if such evidence could arguably support an implied waiver, one 

cannot be “clearly inferred” here, as there is no objective record or corroboration, and a 

material dispute exists regarding whether Debra requested counsel. 

B. The State’s Position That This is a Mere “Credibility Determination” 

Ignores Supreme Court and Ninth Circuit Caselaw Finding This Type 

of “Swearing Contest” Evidence to Be Highly Unreliable. 

The State wants this Court to disregard the lack of any objective, 

independent record and to treat this as a mere “credibility” determination regarding who 

this Court thinks is “telling the truth” – Saldate or Debra Milke. What the State’s analysis 

misses, however, is that Saldate controlled the conditions of this interrogation, and he is 

the one who failed to create an objective, independent record of any type, knowing full 

well that this created a “swearing contest,” which “as a police officer and investigator of 

that case,” he knew he would likely win. (WH 1/11/10 at 92-93). This type of “swearing 

contest” testimony relied on by the State is precisely the type of evidence the Ninth 

Circuit has previously rejected as highly suspect. See Taylor v. Maddox, 366 F.3d 992 

(9th Cir.), cert. denied, 543 U.S. 1038 (2004). Taylor determined on habeas review that 

the state court improperly admitted an alleged confession after treating the relative 

credibility of different accounts of what happened in the interrogation room merely as a 

“swearing-contest” between the officer and the defendant, and simply deciding to believe 

the officer. 366 F.3d at 1004. Taylor recognizes that determinations of credibility in the 

context of incommunicado interrogations are different from other witness credibility 

issues, which are normally subject to more deference. Reliability determinations 

involving police officers regarding what happened in an interrogation are not entitled to 

special deference, especially where the officers created the conditions they knew would 

result in a “swearing contest” they would inevitably win. Long before Taylor, the 

Supreme Court criticized the practice of incommunicado interrogation and observed the 

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extreme disadvantage of an accused in a swearing contest with police. Reck v. Pate, 367 

U.S. 433, 446 (1961)(“There is the word of the accused against the police. But his voice 

has little persuasion.”). And, in Miranda itself, our high court emphasized:

Since the State is responsible for establishing the isolated 

circumstances under which the interrogation takes place and 

has the only means of making available corroborated evidence 

of warnings given during incommunicado investigation, the 

burden is rightly on its shoulders.

384 U.S. at 475 (emphasis added). 

Even assuming this were a simple “credibility contest” and assuming the 

truth of Saldate’s testimony -- that Debra did not assert her right to counsel (until 

afterward) and ultimately confessed -- a valid waiver cannot be presumed simply from 

Debra’s silence following Saldate’s issuance of warnings or from the fact that a purported 

confession was eventually obtained. Miranda, 384 U.S. at 475; Butler, 441 U.S. at 373. 

Finding implied waiver on the facts and circumstances of Debra’s case would be clearly 

contrary to Miranda and Butler, and would render meaningless the protections Miranda

was intended to extend to a suspect in an incommunicado interrogation. The Ninth 

Circuit found no evidence of valid waiver on the pre-existing appellate record, and there 

was absolutely no new evidence presented at the evidentiary hearing that supports a 

finding of implied waiver under Butler. Thus, there is no basis upon which this Court can 

properly find that the State has met its “heavy burden” of proving Debra voluntarily, 

knowingly, intelligently waived her Miranda rights. 

IV. CONCLUSION

On this record, a valid waiver cannot be “clearly inferred from [Debra's] 

actions and words.” Butler, 441 U.S. at 373. The critical evidence of what happened in 

Debra’s interrogation is disputed and there is no objective memorialization or 

corroboration to properly determine whether Debra voluntarily, knowingly, intelligently 

waived her Miranda rights. Even assuming Saldate’s uncorroborated testimony is 

enough, it only shows Debra was administered and understood her rights. No evidence at 

the hearing or in the original record shows Debra knowingly relinquished her rights.

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RESPECTFULLY SUBMITTED this 19th day of January, 2010.

JONES, SKELTON & HOCHULI, P.L.C.

By /s/ Lori L. Voepel

Lori L. Voepel, #015342

2901 North Central Avenue, Suite 800

Phoenix, Arizona 85012

AND 

Michael D. Kimerer, # 002492

Amy L. Nguyen, # 023383

KIMERER & DERRICK, P.C.

221 East Indianola Avenue

Phoenix, AZ 85012

Attorneys for Petitioner Debra Jean Milke

ORIGINAL E-FILED and COPY 

HAND-DELIVERED this 19th day

of January, 2010, to:

Judge Robert C. Broomfield

United States District Court

Sandra Day O’Connor U.S. Courthouse, # 626 

401 West Washington Street, SPC 61 

Phoenix, AZ 85003-2158 

COPY via ECF:

Jim D. Nielsen, Esq. 

Assistant Attorney General

Office of the Attorney General

1275 W. Washington

Phoenix, AZ 85007-2997

Jim.Nielsen@azag.gov

Attorney for Respondents

Kent E. Cattani

Julie A. Done

Assistant Attorney General

Criminal Appeals/Capital Litigation Section

1275 W. Washington

Phoenix, AZ 85007-2997

Attorneys for Respondents

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COURTESY COPY MAILED

this same day to:

Larry Hammond, Esq.

Osborn Maledon, P.A.

2929 N. Central, Ste 2100

Phoenix, Arizona 85012

Counsel for Amicus, AzCLU

Daniel Pachoda, Esq.

ACLU of Arizona

77 E. Columbus, Suite 205

Phoenix, Arizona 85012

Counsel for Amicus, AzCLU

Steven A. Drizin, Esq.

Bluhm Legal Clinic

Northwestern University School of Law

357 E. Chicago Avenue

Chicago, Illinois 60611

Counsel for Amicus, Center on Wrongful Convictions

 /s/ Ginger Stahly

2150888.1

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