The Presumption of Truth

Print This Post

You may also like...

94 Responses

  1. Joe Pullen says:

    It's this kind of shit that makes me hate the death penalty and corrupt cops.

  2. William Alden says:

    So where is the indigogo link to help raise enough money for this woman to help her put her life back together, get training and education and otherwise start the long road to recovery for having her world turned upside down and inside out by powerhungry sociopaths doing nothing but covering their ass?

    We all know she won't see a dime of restitution from the state or the lying cop.

  3. Peter says:

    As is usually the case, state actors who violate the rights of citizens will escape any significant consequences.

    But isn't it worse than that? State actors who routinely violate the rights of citizens to win a large number of convictions get promotions… promotions into positions where they set policy, turn a blind eye, give the ol' wink.

    Right?

  4. htom says:

    I'm not sure which is worse, the lying cop or the prosecution.

  5. Christina says:

    When I have gone in for jury duty and been voir dire'd for a criminal matter, they ALWAYS ask about law enforcement professionals among your family and friends, and if people answer in the affirmative about that, the follow up is about whether one would be able to treat law enforcement testimony exactly the same as any other testimony. I've always felt most jurors aren't really telling the truth about this — the problem is that it's massively common to regard the police as a beneficent profession, and also an "expert witness" as any other of that type who has training that the common citizen does not.

    Isn't that kind of witness prejudice common across lots of categories though – after all, attorneys work with their witnesses to put their best impression out for the jury, to highlight some aspect of their character that will make them sympathetic, and so forth, yes? Isn't it just that sort of jury prejudice that got OJ Simpson acquitted?

    I wonder if a solution would be to actually go through the "expert witness" process for law enforcement witnesses, where their credentials would be laid on the line and the value of their testimony could be judged based on explicit revelations about their history, experience, etc. Or does that already happen?

    The part I find most troubling about this story is that neither the cop nor the attorneys will endure any consequences for their corrupt actions. The system that has someone still a cop after NINE misconduct judgments? They system that allows attorneys who falsified their case and kept a woman on death row for 25 years to continue to practice? Corruption and malpractice happen in all professions, and in a free society it will never be possible to eliminate them entirely. But the risk of consequence is a vital piece of keeping unethical and criminal behavior rates down, and it sounds like the justice system eliminates any negative reinforcements from the picture.

  6. xbradtc says:

    I'm not sure which is worse, the lying cop or the prosecution.

    The prosecution. They HAD to know Saldate's history, and not only disregarded it, suppressed that information from the defense.

  7. Rob says:

    The two men who killed her son did not implicate her — in fact, they denied she was involved.

    Ken, do you have a source for this statement? There's an argument going on at another site I frequent, with one side saying she's probably guilty, and I'd like to be able to use this fact to argue against that position, but I can't find confirmation anywhere. Wikipedia's article on Milke states that one of the two men – Roger Scott – did in fact implicate her, but it doesn't have a cite either.

  8. Rob says:

    Nevermind, I found it, on page 6 of the ruling:
    http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/14/07-99001%20web%20-%20corrected.pdf

    The only person who heard Scott say that Milke wanted him and James Styers to kill the kid was Saldate, and as you said they refused to testify against her.

  9. Kevin says:

    I've said it before, I'll say it again: Kozinski is a BAMF

    Very moving piece, Ken.

  10. Malc says:

    @xbradtc not only do I agree that the prosecution most bear a greater share of the blame, but I also maintain that there is no other way. Law enforcement has to work "in the moment", responding on the fly to new or changing information, and mistakes are inevitable [honest, negligent, or corrupt]. By contrast, prosecutors are required to be methodical, careful, and in theory they have a duty to acquit the wrongfully accused equal to their duty to try to convict those responsible for crimes.

    In my not-so-humble opinion, electing prosecutors and judges is part of the problem. Personally, I would go for a system where the electorate had recall power (they can fire), but they cannot hire. Appointment of a DA should be via a nomination from the judges, confirmed by the legislature, and appointment of a judge should require a nomination by the state bar.

    Or something like that.

  11. Lucy says:

    Are all these prosecutors still in play? What positions of power do they hold now? What is the status of this good ol´ boy network now? Can anything be done about this? Is this cop still at large?

    How scary! The citizens under this umbrella should know about this as common knowledge and make sure they vote and voice accordingly.

  12. Lucy says:

    My apologies if any of my questions are answered in the links, I can't access links. Every time I select a link it shuts down my connection.

  13. C. S. P. Schofield says:

    That #$%^# cop and the prosecutors should, by rights, be put on trial for conspiracy to commit murder, using the State asa the intended murder weapon.

  14. Spodula says:

    I know this may sound a bit silly, but as an ignorant foreigner, Isnt the job of the Prosecuter to get to the truth of the matter, not necessarily secure a conviction? I admit, i dont know how this works in the US.

    As for the cop, well, Police unions…
    Although other countries that have a heavy public sector union presence dont have any problems firing people for gross misconduct…

  15. David Schwartz says:

    Spodula: In theory or in practice? Here they diverge. A conviction is a "win".

  16. Hal 10000 says:

    I realize it would never happen because he didn't go to Yale or Harvard, but I sometimes really wish Kozinski was on SCOTUS. It's a pity that only the Ninth Circuit gets to enjoy his brilliance.

  17. Lucy says:

    I read somewhere that the cop resigned in July and is now a constable for a court. I hope no-ones future falls in his disgusting hands again. (watched a video on YouTube. He oozes disgusting.)

  18. JimBob says:

    Jesus Christ on a cracker. Brady v Maryland was nearly thirty years old at the time of her case. They're REQUIRED to hand this sort of information over– Giglio, Brady, and Augurs were all decided well before this case went to trial, and they all hold that the prosecution had an absolute, unquestionable, you-ought-to-fucking-resign-your-job-if-you-don't-do-this legal requirement to hand over the material about Saldate.

    Milke requested the material. Specifically, she requested information about Saldate. From his personnel records. From internal affairs investigations. From previous cases.

    The prosecution gave her the chance for a one-time, in-camera review of a censored, limited subset of Saldate's that didn't include ANY of his misconduct.

    What this prosecutor did here was absolutely unconscionable. I know that absolute immunity for prosecutors is a thing, but this is probably one of the strongest arguments against it. Actively concealing exculpatory evidence about a known Brady cop in order to hold on to testimony that you KNOW is probably perjured? That's the sort of shit that should have people marching on the prosecutor's office with pitchforks, torches, tar, and feathers.

  19. perlhaqr says:

    So, was it the prosecutors authority or some judge who allowed the information about Saldate to be withheld? And if it was the prosecutor, how can we possibly be considered to have a balanced legal system, if the home team is allowed to handicap the opposing team? I mean, that's the rough equivalent of requiring visiting soccer teams to play two men down. Only in this case, you're not even allowed to reject the invitation to the game.

    I mean, I know the prosecution already has a ridiculous advantage, in terms of having effectively unlimited money, but this is just insane.

  20. Lindsay K says:

    This is fucking mind-blowing. I'm not just talking about withholding evidence either, although that's bad enough. But how the hell can a prosecutor justify putting a cop on the stand who is a known liar?? Not just accusations, not just findings that he violated the constitution in interrogations, not just internal complaints filed, but internal complaints sustained with his own colleagues finding he lied and rulings by judges that he lied under oath?

    The prosecutors can't even hide behind lack of personal knowledge, because the opinion makes abundantly clear that the prosecutors knew damn well what was going on, and goes so far as to name one specific prosecutor (Paul Rood) who himself handled cases where the officer lied and then PUT HIM ON THE STAND IN SUBSEQUENT CASES. What the fucking fuck!

    Can someone with PACER access verify whether or not the attorneys on this case- Terry Goddard, Kent Cattani, and Julie Done, per the opinion- strenuously argued, or submitted? Given the transparently obvious evidence that the state was wrong on both the facts and the law in this case, if the AGs failed to say "the prosecutors were wrong and this writ ought to be granted," they are equally culpable and share just as much blame as the unethical, amoral hacks that made up the Maricopa County Attorney's Office when this occurred.

  21. Lindsay K says:

    Spodula: You are correct, but as David points out, there's an unfortunate variance between theory and practice. In my personal opinion, the only thing worse than a crooked cop is a crooked prosecutor.

    One of my favorite quotations on the subject:
    "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. "
    – Berger v. United States, 295 U.S. 78, 88 (1935).

  22. Clark says:

    @Lucy :
    > Are all these prosecutors still in play? What positions of power do they hold now?

    Indeed, Ken: please dig into PACER and name and shame!

    > I hope no-ones future falls in his disgusting hands again. (watched a video on YouTube. He oozes disgusting.)

    Link, please?

    @ C. S. P. Schofield

    > That #$%^# cop and the prosecutors should, by rights, be put on trial for conspiracy to commit murder, using the State asa the intended murder weapon.

    900% agreed – you beat me to the comment.

  23. G Thompson says:

    What's worse than the prosecution or the moronic officer is the fact that this woman has languished in fear of her life since 1990 TWENTY THREE YEARS!!!!!!

    This above anything else is proof absolute that your "criminal justice system" has a system that is egregiously slow and wrongful, most definitely has no concept of justice due to that (cruel and unusual punishment beyond the pale actually) , though is absolutely criminal.

  24. Clark says:

    @Lindsay K :

    > This is fucking mind-blowing.

    Then you know nothing about cops.

  25. Lucy says:

    http://m.youtube.com/watch?v=RYDd8v26xzc

    IT WORKED!

    I may have a biased view, having read this article first, but this guy just does not give me a warm fuzzy secure feeling that if in uniform, he would tow the line for anyone but himself.

    For this guy, judgemental I may be. A shit I don't give.

  26. Lucy says:

    http://www.injustice-anywhere.org/DebraMilkeArticle2.html

    There are two dates coming up on this article so maybe he resigned July 1989 rather than more recently.

  27. NM says:

    [i]Isn't that kind of witness prejudice common across lots of categories though – after all, attorneys work with their witnesses to put their best impression out for the jury, to highlight some aspect of their character that will make them sympathetic, and so forth, yes? Isn't it just that sort of jury prejudice that got OJ Simpson acquitted?]/i]
    This is different because someone wearing that blue uniform is the only person who seems to have instant credibility and an air of infallibility before the jury. It is why police officer records are so important because making the jury question him is hard enough already. California has this stupid Pitchess process that I hope someone will challenge and overturn, which makes getting police records 10x harder than records for anyone else.

    OJ won because of an arrogant DA's office who filed a case before all the evidence was processed. If they had dismissed and refiled before trial to allow the processing to be complete OJ would likely have been convicted. Instead, they assumed a jury wouldn't actually require them to prove the case beyond a reasonable doubt, because, hell, juries don't do that very often, especially when they *know* the defendant is guilty.

  28. Lucy says:

    http://www.debbiemilke.com/en/mjplay/hendrixinfo.shtml#.UUM9P6MpAb0

    Judge Hendrix was found to be in violation of the judicial code of conduct in cases other than the Milke trial.

    I think that is what this legal font on unfortunate colored background is saying. The timing is unclear to me.

  29. Waldo says:

    "Nevermind, I found it, on page 6 of the ruling:"

    Rob, p.6 just says they didn't testify at trial. There's a much stronger description in Kozinsky's concurrence on p.54, where the killers say she had nothing to do with it.

  30. William the Stout says:

    What a mess. It's not absolutely clear that she didn't participate in the crime. Here's an article with some details dated shortly after her trial:

    http://www.phoenixnewtimes.com/1991-04-10/news/death-row-debbie-no-one-wanted-to-believe-she-could-kill-her-child/2/

    At least there's some semi-credible evidence that she had motive – that she wanted to be rid of the child.

    But that's not nearly enough to put somebody in prison, much less on death row.

    This will probably never be sorted out to the point where anybody but the participants knows what really happened. And the blame for that falls squarely on the State – they couldn't be bothered to see that crimes were investigated and prosecuted by honest people. Too many Bad Guys to put away to bother with details like that……

  31. Waldo says:

    If you don't read anything else in the opinion, I'd recommend reading Kozinsky's concurrence starting on p. 54. It's not written in a legal opinion style and is rather remarkable in its bluntness.

  32. Waldo says:

    One last remarkable find in reading the opinion:

    "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 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 spend a month reading motions and transcripts from those cases to find examples of Saldate's misconduct."

    I cannot imagine that Milke has the resources to have paid for this investigation herself. I presume that there's a non-profit group out there dedicated to justice that believed in her case and spent the time and money doing the boring, dirty grunt work that was necessary to overturn her conviction. Whoever they are, they deserve acknowledgement.

  33. Lucy says:

    http://www.cnn.com/2013/03/14/justice/arizona-death-sentence-overturned/index.html

    In this link is a mug shot of her now.

    http://m.fark.com/comments/7645753?from_page=main

    In this link, scrolling down a ways, is her original mug shot.

  34. Kris says:

    Maybe it's the obvious response, but I agree with Clark and others: let no unnamed prosecutors go free! Name 'em, shame 'em, and wish them the worst.

  35. Dan Weber says:

    If you don't read anything else in the opinion, I'd recommend reading Kozinsky's concurrence starting on p. 54.

    This. There's not a single wasted word there. He's great with the written word.

    Separately, if I'm on a jury, what am I supposed to do when a cop testifies? Can I request his internal record to review?

  36. the other alan says:

    Kosinsky:
    “[The] conversation was going
    to be noted by me in a truthful manner, so there was really no
    need for tape recording.” Right.

    Sarcasm from a federal judge towards a police officers statement = Gold!

    Seriously, how is it that is took 24 years and an appeal to the second-highest court in the country for someone to finally use some common sense?

  37. Kevin says:

    @the other alan : oh, you think THAT's sarcasm? Obviously you must not be too familiar with the writings of the honorable Alex Kozinski. Check out his dissent in US v. Ramirez-Lopez (starting on page 23). Now THAT's sarcasm.

  38. Roscoe says:

    While I don't doubt that a miscarriage of justice occurred here, I have to question the level of vitriol leveled at the prosecutors who actually tried the case. The presumption seems to be that they were aware of all the impeachment material on Saldate but chose not to produce it. But I don't see any support for that in Kozinski's opinion.

    The defense did subpoena Saldate's record. However it wasn't the prosecution that objected, it was the local police department (see note 2). It was the judge's fault for granting the motion to quash, and there is no evidence that the prosecutors ever had access to this file. To the contrary, if the trial court did an in camera review of the file and then quashed the subpoena, the prosecutors had every reason to believe that it didn't contain exculpatory evidence.

    The other exculpatory material was dug out of the public record by a team of 10 researchers who spent 7000 hours on the project. This file obviously did not exist at the time of the prosecution. All Kozinski can say is that the state must of known of this, because Saldate's prior false statements and testimony had damaged other cases.

    Maybe so, maybe no. The Maricopa County DA's office is a big place, and I don't see how any one prosecutor is supposed to have full knowledge of all of this stuff. At best, the "word" had gotten around that Saldate was not a witness to be trusted (as was the case with respect to certain cops back when I was prosecuting cases). If so (and there isn't any evidence of this) then shame on the prosecutor for relying on his testimony so heavily in a capital case. But this isn't the same thing as knowingly failing to disclose exculpatory evidence.

    Even in this age of Google and Pacer (which didn't exist in 1990), I think it places an impossible burden on prosecutors to expect them to know the results of every single case in which every single one of their witnesses has ever testified.

    That doesn't mean that the prosecutors are blameless. A prosecutor has an obligation not to go forward unless he (or she) is morally certain of the suspect's guilt. Here, where there was a single unwitnessed, unrecorded confession, with no corroborating evidence, I can't see how it is possible that this standard was met.

  39. AlphaCentauri says:

    The prosecutor is more culpable than the cop in my book. The cop is clearly a sociopath. You can't expect much from them. You just have to contain the damage they do. The prosecutor presumably has a graduate level education in law and logic.

    As far as what to do if you're on a jury and the cop is the witness, more and more jurors don't consider a cop a disinterested witness. There has become a real bias against cops because of the well-publicized actions of people like Saldate. If you have multiple cops testifying against one defendant and no physical evidence, you still have a decent chance of an acquittal here on the east coast. The Lemrick Nelson trial is a good example. http://en.wikipedia.org/wiki/Lemrick_Nelson#Murder_trial.2C_1992

  40. Ken says:

    Roscoe, as your last paragraph suggests — even if they didn't know, the prosecutors were wantonly reckless and indifferent to truth in procuring a death warrant.

  41. mcinsand says:

    I’m generally an opponent of the death penalty. Actually, if it’s a penalty, then I’m totally against it. More accurately, maybe, it’s capital sentencing that I’m generally against. Society needs a means of self-defense, and there are some individuals where capital sentencing can make sense as a means for preventing those individuals from inflicting damage on society. In the days of wood or simple brick jails and dynamite sold at every general store, capital sentencing made far more sense; the risk of a violent criminal getting back out into society was too great to take any chances.

    Risk and cost balances change, however. When was the last time a convict escaped? Combine that question with one of costs to the already-overburdened taxpayer. We have progressed in making a better, if still imperfect, effort to not convict the innocent, but the cost of capital sentencing still exceeds the cost of life in prison. Okay, let’s look at this again. Making the system more perfect will almost certainly not save any money. Where we are now with respect to putting someone to death still has mistakes, and putting someone to death costs more than keeping them alive.

    I did a little poking around on escapes, and found a couple of items. One recent item is a report on Florida for the 2009-2010 fiscal year (http://www.dc.state.fl.us/pub/annual/0910/stats/im_escapes.html) shows 150 escapes, with only one of those being from a prison, the rest being mainly tied to work release programs, and only 6 of the 150 were not recaptured within 24 hours. Unfortunately, the one escapee from ‘a correctional institution’ has no further details such as minimum versus maximum security, etc. Even though we can’t say what that one person did, we can say that Joe/Josephine taxpayer is getting royally hosed. For the exorbitant amount spent to have a capital sentencing system to defend the public from a dangerous escapee and there was only one successful escape, Florida’s tax base is being totally ripped off. Yes, if that person was violent, then that one escape could have cost several people their lives. For the cost, though, those millions could be far more effective spent elsewhere, such as highway safety.

    Then, there is the obvious problem with capital sentencing, which is that our sentencing is not perfect, and that’s even when the system is not corrupt. If a person is wrongfully convicted and sent to jail, then we can release that person. We can’t undo an execution. Let’s reword; we can incarcerate someone for life at a lower cost than capital sentencing with minimal (negligible?) chance of escape, and we can preserve a good chance of correcting a mistake.

    Of course, all of this hinges on how effectively incarceration keeps high risk individuals away from society. More specifically, the cost and risk balances are tied to how effectively imprisonment stops seriously dangerous prisoners from seriously damaging society. Penalties are only good for reforming people. When the potential danger to society exceeds a certain threshold, sending someone to prison is a matter of defending the populace, rather than punishment. Historically, this has come down to murder, ultraviolence, treason, and any other sort of crime that shakes the general public and/or security down to the core. One of the paths to death row has generally been to kill an officer of the law, which is very ironic in the Milke case. The intent was to preserve respect for people involved in our legal infrastructure. Officer Saldate and the prosecution did more to damage respect for the law than most police officer murders. Unless we develop a teleportation device that the criminal element can use to remove people from prison, keeping these people in jail is the more cost-effective way to protect ourselves … and we also get to keep our chance to address mistakes.

    That is all well and good for the crimes where someone generally has to be present to be dangerous, but there are other ways people can be intolerably destructive without even being present. Treason is different, especially when security-critical secrets don’t have to physically transfer from hand-to-hand. In fact, concrete and barbed wire… even oceans… cannot stop information misuse. In today’s information age, ideas, secrets, and legal moves can move very, very freely. I’m still borderline on treason, unless the person is sealed off from the world for the rest of his life. That would still preserve an out if the convicted traitor was found to have been set up by another agent or someone like Saldate, while also keeping that person isolated to prevent additional information flow. Putting someone in a cell and welding the door shut would make more sense than what we’re doing now. For the damage that they did to Milke and to further the distrust of our legal system, though, I do think that Saldate and the prosecutor should have all assets transferred to Milke, and they should be sealed into a windowless cell with the door welded shut…for the rest of their natural lives.

  42. AlphaCentauri says:

    Re: Volunteers who help exonerate the wrongfully convicted:
    http://www.innocenceproject.org/
    http://www.medilljusticeproject.org/
    http://www.centurionministries.org/
    and a whole list here:
    http://forejustice.org/wc/wrongful_conviction_websites.htm

    Ironically, the fact that she was on death row probably turned out to be a blessing. It's a lot harder to get someone to spend that many man-hours investigating on behalf of someone who got a life sentence, even if the prosecutorial misconduct is just as shocking. If you're not on death row and don't have DNA evidence that needs testing, you're mostly screwed.

  43. Roscoe says:

    Ken – No argument with your last. I just don't think the case has been made that the prosecutors who tried the case knowingly withheld exculpatory evidence.

  44. Terry Towels says:

    Heh. I've been dismissed from jury selection by a very irate judge because I wouldn't take his word that the policeman was being truthful.

    Very irate (something along the lines of don't ever pass these doors again).

    Having worked in the law enforcement area (not as a peace officer) I know there are good and bad, and that there are degrees of truthfulness.

  45. Isn't it just that sort of jury prejudice that got OJ Simpson acquitted?

    No, I'm pretty sure what go OJ acquitted was when Mark Fuhrman was asked on the stand if he had fabricated any of the evidence or reports presented in the case and he responded by taking the fifth. While I'm sure OJ did it, the jury reached the right verdict given the testimony. If you want to blame someone for OJ getting away with it, blame the LAPD, not the jurors.

  46. xbradtc says:

    I'm generally strongly in favor of the death penalty.

    Having said that, I'm also keenly aware that the state has awesome powers, and it is our duty as citizens to be constantly vigilant that they use those powers, and not abuse them.

    I've never sat as a juror on a trial, but I'd like to think that, especially in a death penalty case, I'd be highly skeptical of a "single point of failure" case such as this, where the entirety of the case depends on the testimony of ONE person, particularly when that person is an agent of the very state that is seeking the death penalty.

  47. @xbradtc

    I'm in favor of the death penalty in theory, but think it should banned in practice because it's not something I trust the government with administering.

  48. Clark says:

    @Dan Weber :

    > p. 54. There's not a single wasted word there. He's great with the written word.

    Indeed.

    > Separately, if I'm on a jury, what am I supposed to do when a cop testifies?

    Keep repeating to yourself "this man uses force and lies for a living".

    @the other alan:

    Kosinsky:

    > Sarcasm from a federal judge towards a police officers statement = Gold!

    Indeed!

  49. Waldo says:

    @ Roscoe,the prosecutor has the duty to learn of any favorable evidence known to the police. Any competent lawyer would know that this case would turn on the credibility of Saldate. The prosecutor knows that the defense has subpeonaed Saldate's police personnel file. It strikes me as surprising that under these circumstances the prosecutor did not have access to and review Saldate's personnel file. If he didn't, then I would think he should have. Likewise,the prosecutor would certainly have met with Saldate to prepare his testimony for trial. I would think questions about past misconduct and having been found to have lied under oath should have been asked.

  50. Ken says:

    Before you lecture Roscoe too much, Waldo, bear in mind he's a former prosecutor and long-time defense attorney and supremely competent.

  51. Waldo says:

    In other words, if the prosecutor truly did not know about Saldate's problems, then I think this link describes the prosecution's attitude.

    http://4.bp.blogspot.com/-1R864OW13ko/TyxLh24SZGI/AAAAAAAAAWY/r-gWFL42lrQ/s1600/hear-no-evil_see-no-evil_speak-no-evil.jpg

  52. Dan Weber says:

    Heh. I've been dismissed from jury selection by a very irate judge because I wouldn't take his word that the policeman was being truthful.

    How did that come up? I mean, did you offer your opinion of cops or was it asked of you?

    If you want to blame someone for OJ getting away with it, blame the LAPD, not the jurors.

    I'll agree the jury isn't responsible. It's the prosecution's job to convince the jury; if they can't, that's not the jury's fault.

  53. AlphaCentauri says:

    This case can suck you in reading the details. It's unbelievable they're still fighting her exoneration.

    Her habeas brief is here:
    http://www.injustice-anywhere.org/Debra_Milke_District_Court_07-99001.pdf

    and the ACLU had an amicus brief here:
    http://www.acluaz.org/sites/default/files/documents/Milke%20–%20ACLU%20Amicus%20Brief%20in%209th%20Cir.pdf

  54. Terry Towels says:

    @Dan Weber. It was during jury selection. As I remember (it was a long time ago), the judge asked something along the lines of "Would you take my certification that the policeman was telling the truth?" As I remember, the police officer was the only witness in the case.

    The judge asked for a show of hands. Two of us wouldn't raise our hands. Upon questioning, the judge seemed to take it personally that we wouldn't trust a police officer, (or, by extension, the judge). The two of us were angrily dismissed, and told not to come back to his court.

  55. Roscoe says:

    Wow, thanks for the kind words, Ken.

    Waldo, regarding Saldate's file, did you read what I wrote? The prosecutor knew that the judge had reviewed Saldate's file in camera, and then granted a motion to quash it. Any reasonable person would think that this meant that the file was clean.

    Maybe the prosecutor should have said "okay, the judge looked at the file but this is really important, so I will go through the process of getting it myself (and a lot of police departments make this very difficult) because maybe the judge screwed up." But when you are preparing for trial, time is sometimes very, very short.

    As for asking Saldate about whether he had ever committed perjury, I am sure Saldate would state with great conviction and fervor that of course he always told the truth. I mean, he lies to suspects, other cops, grand juries and trial judges, what the hell makes you think he is going to tell you the truth.

    At the end of the day, what a good prosecutor looks to is not doing a background check on his witnesses, but on corroboration, and lots of it. You tell whether your witnesses are lying to you by whether it is consistent with other testimony or the physical evidence. That, in my opinion, is where the guys here fell short.

  56. Michael says:

    Roscoe, thanks for a prosecutor's perspective. Just one question, though. The prosecutor must have found out early on that Saldate had failed to record the interrogation, that there were no witnesses to the interrogation, that there was no signed Miranda waiver, etc. At what point do the alarm bells become loud enough that a good prosecutor would demand to see whether the cop has a history of shenanigans?

  57. William the Stout says:

    Looks like the Arizona AG has decided to go all John Bradley on this one. For those unfamiliar with Bradley, he was the DA in Williamson County, Texas. A real political firebrand who was a rising Republican star.

    He opposed DNA testing on a blue bandanna related to the Michael Morton case, even though he had in his possession a file which contained several excuplatory items, including a transcript that indicated that Morton's 3 year-old kid saw the murder and said it wasn't his dad. Bradley even had the brass balls to claim publicly that Morton was "grasping at straws" and continue to oppose Morton's parole on the grounds he hadn't expressed regret for the crime he hadn't committed.

    Once the testing was done – oops. Egg meet face. Bradley ended up with an opponent in the most recent primary in Wilco and some of her supporters made the point by hanging blue bandannas on Bradley's campaign signs. He lost and is now more or less disgraced.

    Hopefully this ultimately blows up in the Arizona AG's face as well. What he is doing shows a total inability to engage in objective thought. Proves he's not fit for the job…..

  58. htom says:

    Some people appear to believe that "to tell the truth" means "tell me what I want to hear".

  59. Kat says:

    @William the Stout: That article is really biased, or at least it seems so to me. Lots of crap about how she was sexually experienced before marriage, what does that have to do with the case? It's irrelevant and put in there to damage her credibility. There are a lot of lines like that which are attributed to 'friends.' I didn't find it to be a very convincing article for those reasons.

    I wonder if any of this came out in court. Hunting down the original filings is something I'm increasingly interested in.

  60. Kat says:

    (should mention, was responding to the comment around 8:48 am; haven't gotten much further through the comments than that :>)

  61. AlphaCentauri says:

    Numerous details in the habeas filing: She was abused by Christopher's father, but recanted her complaint under oath after he got out of jail. She was so distraught after her son was reported missing that she was up all night and her friends were giving her sedatives and alcohol to calm her down. Saldate got the friend to confess with his aggressive interrogation (he revealed the location of the body) and heard a passing remark about Milke "being involved" with no specifics of involved with what, with whom or in what manner. He then sped by helicopter to talk to her. He found her at the police station waiting for news about her son. He cleared the interrogation room and sat writing, ignoring her while she asked if he'd heard any news. Then he said her son had been killed and she was under arrest for murder. She got hysterical despite the drugs. Despite this, she asked for a lawyer, but he ignored the request, putting his hand on her knee, putting his face 6-12 inches from hers, and yelling "I won't tolerate that" when she didn't say what he wanted her to say.

    I suspect that police officers are like emergency workers at being able to detect faint amounts of alcohol on people's breath. He knew very well she was impaired and was in a big rush to intimidate her as soon as possible, before anyone else could tell her about her son's death. If he had extracted a signed confession under those circumstances it wouldn't have meant much — a domestic abuse victim, chemically impaired, might be frightened my a shouting male police officer into acquiescing to a lot of things.

  62. RyuConnor says:

    You don't? Kozinski notes that Paul Rood, an ADA within the office of the prosecution, had multiple of his cases ruined due to Saldate. One prominently right before Milke's sentencing. Are we to believe Rood just silently accepted this outcome? That he never complained to his fellow ADAs, staff, or even his boss the DA?

    This case represents the worst failing of the entire system. Judges who fumbled the law they are meant to oversee (and who have been sanctioned over such behavior before). An office of prosecutors that had direct knowledge of a bad cop who had tanked multiple cases through deceit, but who decided the win mattered more. A crooked cop more interested in his own self-centered and misogynistic vision of the world.

    The AGs actions at this point is just a cherry on top of a whole mess of embarrassment.

  63. Roscoe says:

    Michael – Good questions, but I don't think it should ever get to that point. A good prosecutor wouldn't take a case that was entirely dependent on the uncorroborated word of a single witness.

    So if you think the only guy who heard the confession is slippery, the answer isn't to conduct a background check on him. Instead you say to the cops "I need more evidence that this woman is actually guilty before I go on this case."

  64. Malc says:

    @Roscoe it is, and should have been at the time, clear that this case boiled down to his word against hers. And is is clear, and was at the time, that there were problems with his word _in this very case_. Why did he not record or have a witness to the interrogation? What about the claim of interrogation proceeding without a lawyer after one was requested?

    And that's my basis for notion that the prosecutor deserves ALL the opprobrium leveled at him: despite the obvious problems with the case, he sought, and got, a capital murder indictment and conviction; he could have (instead) backed off the grandstanding death penalty bullshit and and proceeded with a regular murder charge.

  65. Joe Pullen says:

    @xbradtc – It’s cases like this one, among others, that are the exact reason I don’t support the death penalty. Since 1973, there have been at least 140 individuals on death row that have been exonerated. Keep in mind, that’s just since 1973 (no figures from before). And, it only includes the ones we KNOW about – the ones who were exonerated, the ones who had someone who cared enough to go back and make something happen. No telling how many others didn’t. No way would I take the bet that we haven’t sent at least one innocent person to death. Especially when I look at the case of Cameron Willingham who was convicted of murdering his three children by arson in a 1991 house fire. He was executed in 2004. A new report from a national arson expert, prepared for the Texas Forensic Science Commission, concluded that the original investigation of Willingham's case was seriously flawed and could not support a finding of arson.

    Our justice system was designed with the right of a presumption of innocence, something that far too frequently is not granted. All I have to do is look back at the Zimmerman situation to be reminded of that. Not everyone has the benefit of competent legal council, much less honest law enforcement.

    I, for one, would rather see a horrible killer end up with a life sentence than risk even one single innocent person being executed. Once you’re dead, they can’t take it back.

  66. AlphaCentauri says:

    @Joe Pullen — The other issue is that depending on what you are accused of, death row could be the safest place for you. John Wayne Gacy lived a lot longer in prison than Jeffrey Dahmer.

  67. Michael says:

    Thanks for the response, Roscoe. I'm afraid that does not do much to improve my opinion of the prosecutors in this case, though. You say that a good prosecutor does not bring charges on the uncorroborated word of a single witness. That's reassuring. But isn't it rather irresponsible to bring capital charges based on one person's uncorroborated word, when that person is a cop whose word is uncorroborated precisely becase he failed to follow orders to record the interrogation that yielded literally the only incriminating evidence in the case? Oh, and he also failed to get a signed Miranda waiver, so it's his word alone on that too. And the defendant is adamant that he flagrantly violated her rights.

    The prosecutors knew all of that. What kind of prosecutor would bring capital charges based on that record? What kind of prosecutor brings capital charges based on that record without even bothering to make sure the cop does not have a *documented* history of perjury and misconduct in interrogations? That's like checking to make sure the guy dating your teenaged daughter isn't a registered sex offender. The culture that office must have in order for that to go over is only slightly less terrifying than if the Brady violation were knowing and intentional.

  68. William the Stout says:

    @Kat – Yeah, I know. I like to find longer articles of that nature from local media sources that aren't just repeating the same stuff from AP or UPI. As with any other situation involving human beings there's a lot of complexity and it's nice to understand some of it to try to draw a well-formed conclusion. All I'd say about that article is that there's just the slightest wisp of smoke there – but it's a long way from that to saying that the house is on fire. If both guys who seem to have done it say she didn't, then odds are she really didn't. Obviously that detective destroyed his credibility to the point that you can't believe anything that he says.

    @Joe Pullen – There's a worse case in Texas than Willingham. Carlos DeLuna. Executed in 1988 and pretty clearly innocent.

    http://www3.law.columbia.edu/hrlr/ltc/chapter/foreword/1.html

  69. Malc says:

    @Roscoe Obviously you have loads of personal experience on both sides of the street, but I rather think that Alex Kozinski is not without _some_ experience, and the words "cavalier attitude of the Maricopa County Attorney’s Office toward its constitutional duty to disclose impeachment evidence" are hardly supportive of your view that it is reasonable that the prosecutor couldn't have been expected to know about impeachable cops, especially since the office was dealing with that particular cop being impeached between the trial and the sentencing in another case…

    Hmm…

  70. SIV says:

    (Under more revolutionary circumstances, they should be in a shallow grave.)

    Too good for 'em. Hanging in chains from a gibbet in front of the courthouse as an example to other prosecutors is more appropriate.

  71. Waldo says:

    @ Roscoe, yes I did read what you wrote. In stating that I would be surprised that the prosecutor did not have access to and review Saldate's personnel file under the circumstances, I was talking about before the court review of the personnel file; not after. Kozinski writes that "the government has a duty to examine personnel files upon a defendant's request for their production." (p. 36) The defendant requested production of the personnel files. The DA knew that Saldate's credibility was a crucial issue. From what I gather from the opinion, the DA either did not comply with this duty by examining Saldate's personnel file or, even worse, did and chose not to produce the internal investigation report of Saldate's official misconduct.

    I disagree with your suggestion that the buck was successfully passed to the trial judge. If you read the opinion, you'll see that the trial judge reviewed only a very limited part of the personnel file relating to training received by Saldate and police department policies re interrogations. The trial judge did not review the internal investigation report and determine it was not exculpatory. Thus, there is no basis for the DA to rely on the trial judge's in camera document review for there not being exculpatory evidence in the personnel file.

  72. ROBERT RUDZKI says:

    Why did the mother insure the toddler for $50,000? Income replacement? To pay funeral costs in case the kid ended up dead?

    Then two lowlifes take him out to the desert, shoot him 3 times in the head and hide the body. Why? Was this strictly random? Or $50,000 split 3 ways may have been a motive…?

    Mom got the kid dressed and told him the two lowlifes would take him to the mall to meet Santa, but they took him to the desert instead and shot him 3 times in the head. Why didn't she take him to meet Santa herself?

    There is something very odd about this chain of events…

  73. ROBERT RUDZKI says:

    Sorry, it was $5,000 for insurance.

    The wheelman got $250 and the rest went to the shooter.

    And she walked…

  74. C. S. P. Schofield says:

    The arguments I am seeing about who is more guilty and of what remind me of an old Mr. Boffo cartoon in which the title character is holding a copy of Variety and saying "Let's just say none of us came off looking good.". The headline? "Dopes dupe dummies as dingbats doze!". Everybody even remotely connected to the legal conduct of this case, including this poor woman'd defense attorney, should at a minimum be held up to public ridicule.

  75. Pau Amma says:

    To Roscoe: Hmm, aren't pages 37-39 of the ruling basically saying "If the prosecutors and the police dept. really didn't know at the time that Saldate was a lying scumbag – and I find it very hard to believe they didn't – it had to be willful ignorance"? (Serious question – I can only read them that way, but – as Ken pointed out to someone else – you're a lawyer and I'm not.)

  76. Reuven says:

    Now, why would a policeman lie?

    (j/k!)

  77. Pau Amma says:

    Also, re "Kozinski and sarcasm": That site was put together by Aaron Swartz *sigh*

  78. AlphaCentauri says:

    @ROBERT RUDZKI: The argument is only useful if you do a survey of how many preschoolers are insured for $5000 and how many end up murdered. It's not an accident that the Gerber baby is the logo for an insurance company. Many people buy whole-life policies for their infants because they aren't very disciplined about saving, or because other investments would disqualify them for things like medical assistance, or because an agent warns them their child might have difficulty buying insurance later if he develops an illness like asthma.

    $5000 pays for a very modest funeral, even with no body available, let alone legal fees. The fact that she only insured him for such a modest amount, when premiums for toddlers are so cheap, is pretty good evidence she didn't seriously expect him to predecease her.

  79. Waldo says:

    Re the $5,000 insurance money, I presume the mom would collect only if there's proof of the child being dead. The killers' original story is that the child went missing at the mall. I wouldn't think that's good enough to collect. The body was hidden in some remote area, so I don't know if it was ever likely to be found absent the killers telling where it was. I suppose they could have planned to anonymously called the cops sometime later. But, if the police find the body, then the killers have to worry that there will be forensic evidence tying them to the crime. Obviously, anyone plotting to murder a child for $5,000 is probably not thinking too rationally. But the difficulty of collecting the insurance money given the story that the child just went missing makes this purported motivation seem even more implausible.

  80. Malc says:

    One scenario that I find perfectly satisfactory is the Thomas a Becket one: she says "Who will rid me of this turbulent toddler?", the two confessed killers decide _on their own_ that killing the baby would leave more time for them to paaaartay with her, etc.

    But as the Judge writes, maybe she did arrange the child's death. But that is not the point, nor may it ever be the point. The point has always to be can the state prove, beyond a reasonable doubt, that she did. If they can't, the may not convict.

  81. Joe Pullen says:

    @ROBERT RUDZK – indeed, but all of that is at best circumstantial evidence. Worst case, you put someone in jail for life, but not on death row. Not for circumstantial evidence.

  82. JRM says:

    I don't know the procedural rules in AZ, but in California, the prosecutor may not review the personnel file of the police officers. The defense can file what is called a Pitchess motion to gain access to relevant witnesses; if the prosecution wants the same information it must successfully file a motion. (The information only goes to the moving party, which is almost always the defense.) The information given is limited to witnesses involved in the prior alleged misconduct; personnel records in full are simply unavailable.

    I thought this might be helpful to some commenters. (See City of LA v. Superior Court, 29 Cal.4th 1 for a discussion of the intersection of Brady obligations and Pitchess motions.)

  83. Chris R. says:

    This is why I can't support the death penalty and things like this:
    http://thinkprogress.org/justice/2013/01/04/1399551/law-enforcers-block-access-to-exonerating-dna-evidence/

    Scared people plead guilty to try and get a good deal when they assume they are screwed either way. Also add an over zealous prosecutor who even knowing the DNA evidence exonerates the man, doesn't want it admissible.

  84. AlphaCentauri says:

    And although in this case, the actual murderer was in custody, in many cases a false confession or a plea bargain will call off the search for the real perp, who remains free to strike again. And these people run on a "Law and Order" platform!

  85. NI says:

    Here's what I don't understand: One would think that even judges who don't care about defendants would nevertheless care enough about being lied to that they would fix the system on their own. A couple of well-publicized cases of judges holding lying cops in contempt and jailing them would work wonders. A couple of cases of judges telling prosecutors in open court, "Don't bother ever sending Detective So-And-So in here ever again, because going forward I'm never going to believe another word he says," would do wonders.

    Instead, judges don't seem to care if police tell them the truth or not.

  86. That Anonymous Coward says:

    I wonder if the AG's response is born out of the fear of undermining the office.

    Prosecutors want the world to see the system is always correct.
    They want to avoid upsetting the public, in a case such as this where emotions ran high, they might not get reelected or keep their job if they let that evil killer go free.

    Even when you can show there was misconduct they have to maintain the illusion the system was correct. More people in his state are more angry at a killer mom getting free, than being angry that someone with a badge had a history of lying. You have to protect the image of the police, even as the evidence piles up there is a problem.

    Officer Bologna pepper sprayed detained women at point blank range. The spokesman for the department supported the claims of the officer that he was aiming for some other protestors that had fled the scene. Even after multiple video angles were shown that he pepper sprayed the detained women, other officers, and fled the scene and threatened to pepper spray more people… they supported the story of invisible protestors who ninja vanished as he pulled the trigger and accidentally pepper sprayed the women.

    The system has changed from what it once was. Winning is what matters and it appears in many recent cases that if you can't get a slam dunk you don't even bother. Winning is everything, even if you have to apply pressure to break someone you keep at it because you know you will win.

    The first casualty of the pursuit of Justice appears to have been Justice, and the fact more people aren't outraged is heart breaking. They accept the claims as fact and refuse to question authority, because they don't care until it happens to them… and then it is to late.

  87. En Passant says:

    That Anonymous Coward wrote Mar 17, 2013 @12:56 am:

    The first casualty of the pursuit of Justice appears to have been Justice, and the fact more people aren't outraged is heart breaking. They accept the claims as fact and refuse to question authority, because they don't care until it happens to them… and then it is to late.

    True.

    Corollary: When it does happen to them, they respond "But I'm not a criminal scumbag like those others it happened to. I really didn't do it!"

  88. Pau Amma says:

    Lest anyone think this happens only in the US: http://www.bbc.co.uk/news/uk-england-london-19567298

  1. March 15, 2013

    [...] The presumption of truth: murder and the state. [...]

  2. March 17, 2013

    [...] Arizona tried to execute a crime victim on the word of a known liar. [...]

  3. March 21, 2013

    [...] let a woman off a traffic offence because she slept with him. In the words of Ken from Popehat: The Presumption of Truth | Popehat [...]

  4. April 15, 2013

    [...] let a woman off a traffic offence because she slept with him. In the words of Ken from Popehat: The Presumption of Truth | Popehat [...]

  5. April 23, 2013

    [...] Why does Arizona keep trying to put Debra Milke to death on the word of a multiply perjurious cop? [Popehat] [...]