Good enough to put Debra Milke to death at the time, Armondo Saldate, Jr. was a cop who knew how to make a case stick.  His trick was simple, and played right into the hands of a flawed system. Set up the confession so no one but him hears it, then put a ribbon on it for the jury and make it a swearing contest between cop and killer. It’s a done deal.

Except Saldate’s history finally caught up with him, a mere 22 years after Debra Milke was sentenced to death for the murder of Christopher, her 4-year-old son, when a court finally took issue with the prosecution’s concealment of Saldate’s massive history of misconduct and deceit that was never disclosed at trial. You know the joke, Saldate and Brady walk into a bar, and nobody knows.

In his concurrence to his own majority opinion at the 9th Circuit, Judge Alex Kozinski writes of the trouble :

This is a disturbing case. There’s no physical evidence linking Debra Milke to the crime, and she has maintained her innocence since the day she was arrested. Neither of the men who actually did the killing testified against Milke. Roger Scott refused to testify because his “testimony would not be what he felt was the truth.” After spending many years on death row, James Styers continued to insist that “Debbie had nothing to do with it and thats [sic] the truth.” The only evidence linking Milke to the murder of her son is the word of Detective Armando Saldate, Jr.—a police officer with a long history of misconduct that includes lying under oath as well as accepting sexual favors in exchange for leniency and lying about it.

Judge Kozinski goes on to describe what he calls Saldate’s “unorthodox interrogation methods,” together with a litany of other misconduct. There is even a chart in appendix A to the opinion (pages 45 through 53) because it’s too much to follow otherwise,

Noting that Milke’s execution would be based on nothing more than the word of a liar, who studiously avoided any potential that his claims could be disputed by making certain that ordinary evidence, like a recording of her alleged confession, didn’t exist, Judge Kozinski wrote:

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.

As much as Judge Kozinski’s plain talk and clear grasp of the problem is refreshing, it’s strikingly inadequate.  You see, Debra Milke was convicted and sentenced to death in 1990.  The number of official hands this case passed through, from the date of her arrest to the grant of habeas corpus by the 9th Circuit Court of Appeals on March 14, 2013, is beyond counting.  Milke was the mother of a murdered 4-year-old who spent that time in a cell awaiting execution. And not until Judge Kozinski spelled out in excruciating detail the wrongs that happened did any cog in the wheel of our justice system give a damn.

This isn’t a success story.  Judge Kozinski’s opinion doesn’t validate the system. It condemns it, though he doesn’t go that final step, despite excoriating so many who could have stopped this outrage from happening, and concluding that the system and each and every one of the official participants, failed.  The system is a failure and cannot be trusted to determine guilt.

At  Popehat , Ken explained the failure thus:

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.

He notes that the cop, Saldate, and prosecutors who covered him up, will suffer no consequences. But what of the judges?  What of the jurors, the ones so many of you think will nullify bad law if only they knew of their power to do so? 

There will be no consequences for anyone, other than Debra Milke whose son is dead and life is lost.  And yet the system, the one that allowed and enabled this travesty to happen and be perpetuated for more than two decades, will emerge unscathed as well.

And tomorrow, the same players, cops, prosecutors, judges and jurors, will be asked to play their roles in what is euphemistically called the criminal justice system.  If insanity is doing the same thing over and over and expecting a different result, then Judge Kozinski should have said so. 

The reason I lay this particular problem on Alex Kozinski is that he is one of the few people with the power to alter the course of disaster who shows interest and willingness to do what every other player in this fiasco refused to do.  It’s all we’ve got, that one good man who calls out the wrong. Aside from Judge Kozinski, who 22 years later explained the error of Milke’s conviction, the only person who has yet to fail is the executioner. 

H/T Spencer Neal, Oregon law Center