{Maricopa County} Benchslap of the Day: Kozinski & Co. Overturn a Murder Conviction

[mahatmakanejeeves]

Hat tip to Abovethe law.

Benchslap of the Day: Kozinski & Co. Overturn a Murder Conviction

As noted by Professor Eugene Volokh, who clerked for Judge Kozinski on the Ninth Circuit, the ruling came from “a pretty conservative panel — Chief Judge Alex Kozinski, Judge Carlos Bea, and Judge Jerome Farris (a Carter appointee who nonetheless, to my knowledge, has a fairly conservative reputation on criminal justice cases).” Professor Volokh quotes this excerpt from Milke v. Ryan, a concise summary of the facts:

In 1990, a jury convicted Debra Milke of murdering her four-year-old son, Christopher. The judge sentenced her to death. The trial was, essentially, a swearing contest between Milke and Phoenix Police Detective Armando Saldate, Jr. Saldate testified that Milke, twenty-five at the time, had confessed when he interviewed her shortly after the murder; Milke protested her innocence and denied confessing. There were no other witnesses or direct evidence linking Milke to the crime. The judge and jury believed Saldate, but they didn’t know about Saldate’s long history of lying under oath and other misconduct. The state knew about this misconduct but didn’t disclose it, despite the requirements of Brady v. Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 153–55 (1972). Some of the misconduct wasn’t disclosed until the case came to federal court and, even today, some evidence relevant to Saldate’s credibility hasn’t been produced, perhaps because it’s been destroyed. In the balance hangs the life of Milke, who has been on Arizona’s death row for twenty-two years.

What was in Detective Saldate’s “long history of lying under oath and other misconduct”? From the panel opinion by Chief Judge Kozinski (internal citation omitted):

This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this reflects a full account of Saldate’s misconduct as a police officer. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

You don’t need to be a constitutional law or criminal law expert to figure out what happened next. The panel held that the requirements of Brady and Giglio were violated, reversed the district court’s denial of federal habeas relief under 28 U.S.C. § 2254, and remanded to the district court “with instructions to GRANT a conditional writ of habeas corpus setting aside [Milke's] convictions and sentences.”

En route to reaching that conclusion, the panel had some benchslaps for other judges. Here’s what they had to say about Judge Cheryl K. Hendrix of of Maricopa County Superior Court (emphasis added):

In reviewing the exhibits attached to Milke’s post-conviction petition, Judge Cheryl K. Hendrix, who was also the trial judge, was “unable to find a reference to the type of evidence that is allowed under Rule 608 to impeach the credibility of a witness.” That is no doubt because she grossly misapprehended the nature and content of the documents that Milke presented….

Chief Judge Kozinski also wrote a separate concurrence — Kozinski, C.J., concurring with himself — because of his views on a separate Miranda issue. In his concurrence, he described the case as “disturbing” and offered harsh criticism for many of the actors:

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.

[HuskyOffset]

1. Can Milke sue?

I know there are rules that prevent the suing of public officials for things they did in the course of their duties, but in a case as egregious as this one, does Milke have some recourse for legal action against the prosecuter and judge?