The Presumption of Truth
Armando Saldate, Jr. had been adjudged to be a liar on four occasions and a lawbreaker on five others.
No rational person would accept his word as an adequate basis to do anything of importance — let alone as a basis to take a life.
But we do not speak of rational people today. We speak of the criminal justice system. And the criminal justice system is choked with people it has thoroughly captured — people irrationally convinced of, or indifferent to, the credibility of people like Armando Saldate, Jr.
That's because Armando Saldate, Jr. was a police officer.
The State of Arizona, based on almost nothing but Saldate's word, has been trying to kill Debra Jean Milke for nearly a quarter-century. Today the United States Court of Appeals for the Ninth Circuit said they can't.
Two men murdered Debra Milke's four-year-old son, Christopher. Armando Saldate, Jr. claimed that she confessed involvement in the crime to him. He claimed that she did so in a private interrogation he conducted without recording it — though he had been specifically instructed to record it. There was no physical evidence against Milke. The two men who killed her son did not implicate her — in fact, they denied she was involved. The case against her rested on Saldate's word. The prosecutors — the State of Arizona — accepted Saldate's word uncritically. That's what the state does. If the state begins to imagine that cops lie — if the state considers the possibility that its agents are not always reliable — well, that's too frightening for the state to contemplate.
Too often jurors, rendered dull and credulous by decades of "law and order" rhetoric and a media that cares more for ratings than accuracy, are also inclined to reward police officers with uncritical trust. Here, they might not have. Here, the facts might have moved jurors to consider the possibility that Armando Saldate, Jr. is not a man whose word should be believed at all, let alone believed enough to send a woman to her death. That's because multiple courts had found that Armando Saldate, Jr. had lied about criminal cases. Multiple courts had found that Armando Saldate, Jr. had committed misconduct violating the rights of defendants — including with respect to interrogations. Armando Saldate, Jr. had lied repeatedly under oath, had "taken liberties" with a woman he had detained in a traffic stop, had handcuffed a juvenile to a table without cause, had interrogated an incoherent suspect with a head injury in his hospital bed, had interrogated an intubated patient in intensive care.
Yes, these facts might have led jurors to doubt the word of Armando Saldate, Jr. The State of Arizona — through its prosecutors — eliminated that dangerous possibility by withholding Saldate's record from the defense in the prosecution of Debra Milke. As Judge Kozinski said in today's Ninth Circuit opinion:
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. See pp. 24–25 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.
The jury convicted Milke of her son's murder, and the judge sentenced her to death.
The Ninth Circuit's opinion overturning her conviction is here. You'll find that a large chunk of it discusses the Antiterrorism and Effective Death Penalty Act of 1996, a statute that governs when federal courts may even consider a state convict's arguments that she is innocent, that her rights were violated by the state. But the opinion also addresses Armando Saldate, Jr.'s record. You'll find a chart of his misconduct on pages 45 through 53. Judge Alex Kozinski is a good, clear, direct writer, and the opinion is easy to follow, if long.
Soon Arizona will have to decide whether to retry Debra Milke. Since its now clear that Armando Saldate, Jr.'s record will be an issue, and because the conviction relies entirely on his word, they probably won't. After a quarter-century Debra Milke will leave death row.
She spent that time there because the criminal justice system — which is required to accord to people like Debra Milke a presumption of innocence — instead accords to people like Armando Saldate, Jr. a presumption of truth. The system — and at least some of its participants — give that presumption freely because Saldate and his cohorts wear a badge and a gun. They do so no matter how many times Saldate and his cohorts show they are unworthy of the presumption.
The prosecutors who put Armando Saldate, Jr. on the stand after concealing his background should be in jail. (Under more revolutionary circumstances, they should be in a shallow grave.) But that won't happen. As is usually the case, state actors who violate the rights of citizens will escape any significant consequences.
That's the system we've decided to accept.
Hat tip to Brian Tannebaum.
Edited to add: Scott's take at Simple Justice.
Second Update: Here is a statement by Arizona Attorney General Tom Horne:
“We will be appealing this decision to the U.S. Supreme Court. If the Court takes the appeal, I will argue it personally as I have done in two previous cases over the past five months. In my last case, the Supreme Court accepted my argument and overruled the Ninth Circuit’s decision unanimously.
In this case, Ms. Milke was found to have arranged the killing of her own son, a four-year-old toddler, because he was too much of a burden and interfering with her life. After dressing him up and telling him he was going to the mall to see Santa Claus, Milke was convicted of sending her young son off to be shot, execution style, in a desert wash.
This is a horrible crime. The Ninth Circuit’s decision needs to be reversed, and justice for Christopher needs to be served.”
Someone who wasn't a totalitarian or a sociopath might have seen fit to address (1) why Arizona reposes trust in the uncorroborated word of a multiple-perjuring lawbreaker in its lust to kill a woman and (2) why its agents suppressed the evidence cited by the Ninth Circuit. But Horne is a totalitarian or a sociopath, or possibly both, so he toes the law-and-order line: all you need to know is that the state says she did it.
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