March 14, 2013
Ninth Circuit Reverses Death Sentence Because of Unconstitutional Actions of Police Officer and Prosecution
The Ninth Circuit has granted a writ of habeas corpus to Debra Jean Milke, a woman on Arizona's death row for the 1990 death of her four year old child, in its opinion today in Milke v. Ryan.
The opinion is noteworthy not only for the grant of the writ in a death penalty case, but for its portrayal of police and prosecutorial practices and for the work it took to uncover the problems. At the heart of the case is what the panel describes as essentially a "swearing contest" between the then 25 year old Debra Jean Milke (pictured right) and Phoenix Police Detective Armando Saldate, Jr. The Detective testified that Milke was given MIranda warnings and confessed to the murder of her son. Ms. Milke contended that she requested a lawyer, never confessed, and was innocent. There was no signed Miranda waiver, no tape of the interrogation or confession, and no evidence other than the Detective's oral statements linking Ms. Milke to the crime. Milke has maintained her innocence. At trial, Milke's attorneys requested the personnel files of Detective Saldate, but the state judge quashed the subpoena. The prosecution never disclosed the evidence despite Brady v. Maryland, 373 U. S. 83 (1963) which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment.
Detective Saldate's file would have included not only numerous disciplinary actions against him for untruthfulness, but also the major cases he had worked on, including those that had appellate opinions reversing convictions based upon Saldate's violations of constitutional rights or dishonesty. The appendix to the panel opinion lays out eight cases and one internal affairs investigation with specific findings regarding Saldate's "lying under oath" or Fourth or Fifth Amendment violations.
Also of note is the manner in which Saldate's transgressions were ultimately discovered:
Milke was able to discover the court documents detailing Saldate’s misconduct only after a team of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting through court records. Milke’s post-conviction attorney sent this team to the clerk of court’s offices to search for Saldate’s name in every criminal case file from 1982 to 1990. The team worked eight hours a day for three and a half months, turning up 100 cases involving Saldate. Another researcher then spent a month reading motions and transcripts from those cases to find examples of Saldate’s misconduct.
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. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.
Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?
It’s not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.
From the rendition of the facts in both the panel and concurring opinions, Ms. Milke was the victim of a grave injustice. But recall the Supreme Court's 5-4 opinion in Connick v. Thompson regarding the standard by which Brady violations should be evaluated: the "state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training.""
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