Wednesday I appeared on the Diane Rehm radio show on WAMU, as noted and linked here. I got a considerable amount of feedback, most of it complementary. I did receive one sharply critical email, though, regarding Debra Milke, and I do need to make a correction. More broadly, the incident says something important about how folks on the anti side get their "facts."
First, a note about debates. When I participate in one of these, I have no idea which cases the other side is going to bring up. I have to discuss the facts of them from a memory that may not have been refreshed for a long time, if indeed I am familiar with the case at all.
I said that James Styers took Debra Milke's little boy out into the Arizona desert and put five bullets in the back of his head. (I had a Skype link with the studio. Ms. Rehm visibly winced at this point.) My critical correspondent points out that it was only three bullets. I stand corrected. To anyone who thinks this is material, I apologize. I don't think it is.
On the material facts, I stand by my description of the case, and therein lies the point of this post.
First, a note about debates. When I participate in one of these, I have no idea which cases the other side is going to bring up. I have to discuss the facts of them from a memory that may not have been refreshed for a long time, if indeed I am familiar with the case at all.
I said that James Styers took Debra Milke's little boy out into the Arizona desert and put five bullets in the back of his head. (I had a Skype link with the studio. Ms. Rehm visibly winced at this point.) My critical correspondent points out that it was only three bullets. I stand corrected. To anyone who thinks this is material, I apologize. I don't think it is.
On the material facts, I stand by my description of the case, and therein lies the point of this post.
Here is the discussion of the Milke case, beginning about 17 minutes into the recording:
About 19 minutes in:
The opinion of the U.S. Court of Appeals for the Ninth Circuit in co-defendant Scott's case says:
Where do people get this stuff? Is it like the old game of "telephone," where each retelling of the story among the anti crowd gets more stark, less nuanced than the one before? Obviously my correspondent has not, in his words, "made the effort to familiarize [him]self" with the published court opinions in these cases.
Oh, and one more thing. My critical correspondent takes issue with my referring to Styers as Milke's "boyfriend." They lived together in Phoenix, Arizona in 1989. Nowadays, it is not too unusual for people of opposite sex to be roommates even though they are "just friends," but in those days it was quite unusual, and especially so in conservative parts of the country such as Arizona. I think it's a fair assumption that they were more than mere roommates, unless someone has some solid information to the contrary.
But if we assume for the sake of argument that they were indeed "just friends" roommates, is that material? I don't think so. To the extent it bears on Milke's guilt at all, I think it would go the other way. Why did Styers kill the little boy? Scott's confession said it was for the insurance money. If Styers had no emotional connection with Milke and no reason to "get the kid out of the way," that would be a tad more reason to think that money was the reason, and money necessarily required Milke's involvement.
The bottom line here is that Milke's conviction has been reversed and she has been freed, but she has not been "found totally innocent," as Rehm understood Dunham to be claiming. That is the misrepresentation that the anti side gets away with again and again. We have exposed it again and again, but they continue to get away with it. It's very frustrating, although fortunately I was able to nail them in this instance.
And I put up with garbage like this in the email. That's part of the price for fighting for justice, and I accept it.
Rehm: What about Diann's point that many on death row have been found to be innocent?[Discusses another case and makes the DPIC neutrality claim]
Dunham: Well that's true. There have been two exonerations from death row in the last month alone. One in Arizona, Debra Milke, and one just last week in Alabama.
Rehm: Exonerations - found totally innocent of the crime they were alleged to have committed.
Dunham: Legally innocent, that's correct.
About 19 minutes in:
Rehm: Kent Scheidegger, what about the number of people who are on death row or who have already suffered the death penalty and been found not guilty.The critical correspondent says:
Scheidegger: Let's go back and look at the answer to your question earlier about Debra Milke. You asked if she was proven completely innocent. And Mr. Dunham didn't say yes, he said, "Legally innocent, that's correct." Well, that's a very different thing.
Debra Milke has not been shown completely innocent. In fact there is good reason to believe that she did in fact do it. Her boyfriend took her little boy out into the Arizona desert and put five bullets in the back of his head. The codefendant's confession in this case implicating Debra Milke is not admissible in her case because of the Confrontation Clause of the U.S. Constitution. So the prosecution, this late in the game, is not able to prove that she is guilty. But that's not the same thing as saying that she is actually innocent.
And there are a lot of people on that list of 150-whatever supposedly innocent people who are in that situation. Their cases are overturned for some reason, many, many years later and at that point it is not possible to prove beyond a reasonable doubt with evidence admissible in court that they are guilty, but that doesn't mean that they are innocent.
If you had made the effort to familiarize yourself with this case beyond the superficial and sensationalized presentations that have permeated the media for over 25 years, you would know that ... Neither of the two convicted murderers of Christopher Milke ever implicated Debra Milke. Your claim of such a confession is a complete fabrication. Furthermore, while both of the murderers have claimed that the other was the triggerman, neither of them has ever stated that Ms Milke was involved.Note how he simply assumes that my source of information is sensationalized media presentations and that his source of information, whatever it may be, is superior. Actually, I wrote a brief in support of Arizona's petition to the U.S. Supreme Court in Styers' case, and my source of information is court records.
The opinion of the U.S. Court of Appeals for the Ninth Circuit in co-defendant Scott's case says:
Scott gave a taped interview to Detective Mills, detailing the events leading up to, resulting in, and attempting to cover up the murder of Christopher. Detective Mills started the interview by asking Scott if Detective Saldate had informed him of his Miranda rights. Detective Mills then proceeded to reiterate the Miranda warnings. Scott admitted he came to the police station voluntarily and he had been treated pretty well, without any physical abuse or force.The Arizona Supreme Court in Milke's case noted that the trial judge would not allow this confession in her case, even in the penalty phase:
Scott explained that he, Jim Styers, and Debra Milke all discussed murdering Debra's four-year-old son, Christopher. Scott was promised $250 by Styers, which was to come from a life insurance policy Debra had on Christopher through her work. Scott stated that at first Styers and Debra Milke offered to pay him $150, and then the price went up to $250. The sentencing judge was entitled to infer from this evidence that Scott bargained for the increase in payment.
At the presentence hearing, the state offered co-defendant Scott's confession in an attempt to establish that Milke procured the commission of the offense by promising payment from the insurance proceeds. See ยง 13-703(F)(4). The trial court found that admission of Scott's confession would violate Milke's Sixth Amendment confrontation rights. The state argues that the confrontation clause does not apply to sentencing proceedings, and that Scott's confession is admissible under the Arizona Rules of Evidence, particularly Rule 804(b)(3).My description of the central, material facts of this case is fully consistent with the published decisions of the appellate courts. Yet I get an email saying it is a "complete fabrication."
Because we are affirming the murder conviction and death sentence, this issue in the state's cross-appeal is moot. See Progressive Specialty Ins. Co. v. Farmers Ins. Co., 143 Ariz. 547, 548, 694 P.2d 835, 836 (App. 1985) (noting that appellate courts should not decide questions that have no practical effect on litigants' rights or that are unnecessary to disposition of appeal).
Where do people get this stuff? Is it like the old game of "telephone," where each retelling of the story among the anti crowd gets more stark, less nuanced than the one before? Obviously my correspondent has not, in his words, "made the effort to familiarize [him]self" with the published court opinions in these cases.
Oh, and one more thing. My critical correspondent takes issue with my referring to Styers as Milke's "boyfriend." They lived together in Phoenix, Arizona in 1989. Nowadays, it is not too unusual for people of opposite sex to be roommates even though they are "just friends," but in those days it was quite unusual, and especially so in conservative parts of the country such as Arizona. I think it's a fair assumption that they were more than mere roommates, unless someone has some solid information to the contrary.
But if we assume for the sake of argument that they were indeed "just friends" roommates, is that material? I don't think so. To the extent it bears on Milke's guilt at all, I think it would go the other way. Why did Styers kill the little boy? Scott's confession said it was for the insurance money. If Styers had no emotional connection with Milke and no reason to "get the kid out of the way," that would be a tad more reason to think that money was the reason, and money necessarily required Milke's involvement.
The bottom line here is that Milke's conviction has been reversed and she has been freed, but she has not been "found totally innocent," as Rehm understood Dunham to be claiming. That is the misrepresentation that the anti side gets away with again and again. We have exposed it again and again, but they continue to get away with it. It's very frustrating, although fortunately I was able to nail them in this instance.
And I put up with garbage like this in the email. That's part of the price for fighting for justice, and I accept it.
It would be refreshing if Rehm had the decency to make this clarification for her audience. I'm not holding my breath.
I don't quite follow that, Steve. I think the material facts of this case as stated to the radio audience are correct.
In one of my recent entries, I noted that abolition's primary weapons are condescension and deceit. Kent's story here is an object lesson.
The other side yelps "innocent!" (as they are doing now about Willingham), and it ties down the relatively meager resources on our side to answer the claim rather than (for example) further explore the hideous child murder in the Boston Marathon bombing.
Playing defense to a pack of lies is wearing, and it rewards the liars for their strategy. It also allows them more easily to avoid addressing the next grotesque murder and the next, while -- in addition to lying about supposed innocence -- they proceed to the On-High Lecture about how the rest of the world is against the death penalty (which is, not co-incidentally, also false).
I wish that I could come up with a strategy for just ignoring innocence and other lies, but I have yet to discover it.
I would only add that the Alabama case, Mr Hinton, is likewise more than somewhat problematic for those claiming an exoneration. Examining the facts of the case, an unbiased observer would probably conclude that Mr Hinton is, you know, guilty as sin, but so many years having passed, the government is simply unable to retry (or in this case, even try an original, uncharged case). Although Mr Hinton is legally now innocent of murder in that his convictions have been reversed and he is not going to be retried, the facts as known argue for his absolute guilt of 2 robbery-homicides and a 3rd robbery-attempted murder.
I'm going off your transcription, so maybe the context is off, but I'm thinking of this statement:
"Rehm: Exonerations - found totally innocent of the crime they were alleged to have committed."
As you pointed out, that's not what an exoneration means; there is no finding of innocence. Debra Milke has not been found to be innocent.
Where to start? It would be difficult to imagine that someone could be just as disingenuous as Richard Dieter--but lo and behold, we have someone willing to engage in breathtaking intellectual dishonesty. But this isn't really the issue. Mel Ignatow is "legally innocent" of murder, but everyone knows he did it. And no one would stand up and yammer about how Ignatow is "legally innocent." Yet, these people, who have to know the details of the crimes, will proclaim the 150 as pure as the driven snow. Disgusting. Newsflash--sometimes, people get away with murder.
what must be maddening--these people use the system's procedural liberality to indict the system.
There is, now, an additional tool to make these points.
make these points.
Some states have laws that determine actual innocence, in order for compensation to be given to those so proven.
Often, folks like Scheck have fought for these.
DPIC lists 12 death row "exonerations" or "innocents" removed from death row in Texas
Yet, only 1 has met the requirements of the law.
The other 11 have not qualified and will not qualify, even with the huge incentive of $80,000 per year of pay for the yers of wrongful incarceration.
Sadly, this process has been touched by politics, which threatens to destroy the credibility of the process.
The infamous Michael Graves case is that one case, proven through that law.
Well, no.
Graves could not be declared actually innocent under the law, because there was no proof that he was innocent, a declaration which must be made by the trial court judge,
So they amended the law to reflect a "belief" standard, "established" by the district attorney, is enough to prove "actual innocence".
Of course, a belief standard, by definition, cannot establish actual innocence.
For such determination, there cannot be any evidence that inculpates the subject,
The major problem with this is obvious and reflects the well known detective saying
Absence of evidence does not mean evidence of absence.
Elect Barry Scheck a district attorney in Texas, death row will be vacant!!!
Kent, I believe you are the one who participated in the IQ2 Death Penalty debate yesterday. I do not entirely agree with your views, but the discussion was very interesting.
As to Debra Milke, who certainly is guilty of murdering her son even in the minds of many of those who agree there were deficiencies in her trial:
1. The actual relationship between Milke and Styers was this: their living arrangements were indeed just that of roommates. That is not to say Styers didn't like to think of himself as her boyfriend. But he is much older than her. And, in reality, he was actually just a swooning lapdog whom she was taking advantage of. For example, to babysit her son while she went out with other men.
2. To the objection, should it arise, that her police interview was not recorded, and this is evidence of some sort of conspiracy, keep in mind that Milke was given the opportunity to have her interview taped but she strongly objected to it being recorded.
So the interview which is said to contain her confession was not recorded because Milke did not it recorded. Which I believe certainly has proven to be quite a shrewd move on her part.
Yes, that was me, and thanks for your comment.
We would appreciate it if you would adopt a recognizable handle and "sign" your comments in the text, so all can see which ones are coming from the same person. Yahoo, unfortunately, identifies you only with a string of apparently random characters.
Hmm, tried to attach my Yahoo to "Open ID", but the process did not run smoothly. Will try again next time. Meanwhile, further to my comment of Apr/16 (1:17pm)...
1. Typo: the second to last sentence of my above comment should read: "Milke did not WANT it recorded".
2. The Milke case I find a good argument for at minimum, placing a moratorium on capital punishment. Not on the basis that Debra Milke is innocent, because she is not. I don't doubt she is the mastermind of the murder.
However I consider it fundamentally unjust that the two patsies she put up to the murder are going to be executed while she now not only walks free, but is also in line (it turns the stomach) to possibly receive a large financial payoff (by way of civil lawsuit).
Signed,
Adam Lane
Thanks, Adam, no attachment is needed. This is fine.
I don't find this case an argument at all for a moratorium. It happens in criminal law that some people who deserve punishment escape it. That is a price we knowingly pay when we decide to require proof beyond a reasonable doubt. But the fact that one person has escaped punishment is no reason at all to let another off easy, in my opinion. He still deserves what he deserves.
If there is a civil suit, I hope the government fights it tooth and nail. There is no Confrontation Clause in civil court. The co-defendant's inculpatory statement comes in.
As Ward Campbell has documented, there are a number of people on the "innocence list" who lost lawsuits because the trier of fact found that they are not innocent.
Hi, Kent. I certainly agree that a person deserves what he deserves. Which is pretty much a tautology, I suppose.
However I also believe that what the person who is the least culpable in a criminal conspiracy deserves is some punishment which is less than that meted out to the person who is the most culpable. The Milke case is now on course to turn this equation on its head. And I find this inequitable and fundamentally unfair.
Incidentally, Debra Milke's conviction being thrown out had nothing to do with reasonable doubt. It was thrown out because, regardless of how guilty she is, her trial was found to be- and here's that concept again, the avoidance of which surely is crucial to any moral system of justice and punishment- unfair.
Signed,
Adam Lane