We previously applauded the Ninth Circuit panel of Chief Judge Kozinski, and Judges Farris and Bea,  for the Panel’s decision and its very clear instructions to the district court on remand for a hearing on the government’s misconduct in this prosecution which has imprisoned a woman for 22 years.

On Wednesday, Defendant Milke moved to disqualify the Maricopa County Attorney’s Office from the case.

The disqualification motion relies heavily on the Ninth Circuit’s opinion in Milke v Ryan. and Chief Judge Kozinski’s concurrence (with his majority opinion). It argues strongly that the potential for a DOJ investigation creates a conflict of interest for the prosecution.  The filing also notes, in FN 3, that the prosecution has announced plans to file “a motion in limine to preclude ‘any mention’ of the impeachment evidence against Saldate, the investigator whose misconduct infected the case. The government characterized this admissible impeachment evidence as ‘repeated attempts to sully his reputation.’!

It’s hard to imagine how there could be a retrial where that impeachment material was ruled inadmissible.  Hopefully, things won’t get that far.

Arizona’s Maricopa County district judge conducted a hearing on August 1 in which it is plain that she is taking Saldate’s misconduct more seriously-as she should-finally.  She noted:  “The court now has a lot more information available to it,” referring to the *Milke* opinion.  “I don’t think the court has a choice but to consider the items listed in the opinion.”  However, the bond hearing has been pushed to the end of the month.   The TV news report follows:

But we don’t understand why Milke is still in prison.

The Ninth Circuit could not have been more clear.  We quote the Court’s opinion again:  “Milke is entitled to habeas relief. We therefore REVERSE the decision of the district court and REMAND with instructions to GRANT a conditional writ of habeas corpus setting aside her convictions and sentences.”

SO  . . . WHY IS SHE STILL IN PRISON?