Milke, et al v. Schriro
FILED OPINION (ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA) 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. Prior to issuing the writ, the district court shall order the state to provide Milke s counsel with Saldate s police personnel records covering all of his years of service, including records pertaining to any disciplinary or Internal Affairs investigations and records pertaining to performance evaluations. If the state believes that any of the materials it is ordered to provide are not relevant to Brady or Giglio, it may present them to the district court in camera, and the district court shall review them to determine whether they are relevant to Brady or Giglio, as explicated in our opinion. Defense counsel shall be allowed to see the documents and to argue why each might be Brady or Giglio material. The district court may, in its discretion, enter a protective order requiring all contested documents to be filed under seal and to be designated For Attorneys Eyes Only, and setting such other conditions as the district court finds necessary and proper, while the district court decides whether the contested materials are relevant to Brady or Giglio. After the state has turned over these records, it shall provide a statement under oath from a relevant police official certifying that all of the records have been disclosed and none has been omitted, lost or destroyed. If a relevant police official is unable or unwilling to provide such a certification, the district court shall hold an evidentiary hearing to determine whether any records have not been produced, and, if so, why. Petitioner s counsel shall be given a reasonable period of discovery prior to the hearing. This panel retains jurisdiction over any appeal arising from this remand. Upon production of the certification described above or the conclusion of the evidentiary hearing, the district court shall order Milke released unless the state notifies the court within 30 days that it intends to retry Milke, and actually commences Milke s retrial within 90 days. The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldate s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents. Judge: AK Authoring, Judge: AK Concurring, FILED AND ENTERED JUDGMENT. --[COURT UPDATE: PDF of opinion replaced with corrected version (wrong headers on some of the pages). Resent NDA. 03/14/2013 by RY]
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