XPost: az.swusrgrp, alt.fan.letterman, alt.fan.howard-stern   
   From: joe-hyman@attackwatch.com   
      
   Perhaps this should be “benchslap of a few days ago,” since it   
   happened last week. But it’s never too late to read about Chief   
   Judge Alex Kozinski, right?   
      
   This latest benchslap involves the Ninth Circuit setting aside a   
   murder conviction. So you might expect the benchslap to be   
   coming from a unanimous Supreme Court in a summary reversal.   
      
   But no. The benchslap — actually, make that benchslaps, plural —   
   come from the Ninth Circuit. On the receiving end: the police,   
   prosecutors, a state judge, and a federal judge. Names are named.   
      
   And I wouldn’t hold my breath while waiting for SCOTUS to   
   reverse. This decision looks pretty safe….   
      
   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.   
      
   He didn’t spare the third branch from scrutiny either (emphasis   
   added):   
      
   Both the district judge and the state trial judge found that   
   Saldate was telling the truth when he testified that Milke   
   waived her Miranda rights and didn’t ask for a lawyer. I   
   discount the state court’s finding because it was made with no   
   knowledge of Saldate’s repeated instances of lying under oath   
   and other professional misconduct. One hopes the judge would   
   have been more skeptical of Saldate’s account had she been aware   
   that Saldate was disciplined for taking advantage of a female   
   motorist and lying about it to his supervisors, and that he   
   habitually lied in court, abused the interrogation process and   
   disregarded Miranda.   
      
   Nor am I impressed by the district court’s finding. The district   
   judge was aware of Saldate’s suspension and noted it in passing,   
   but he didn’t specify the nature of the misconduct, nor did he   
   acknowledge that Saldate’s supervisors had determined that his   
   “image of honesty, competency, and overall reliability must be   
   questioned” as a result of the misconduct. It’s hard to say he   
   gave it due weight — or any weight at all.   
      
   These next comments from Chief Judge Kozinski might not be harsh   
   on the surface, but one doesn’t need to read too hard between   
   the lines to see that more might be going on:   
      
   [T]he district judge said nothing at all about Saldate’s   
   numerous instances of lying under oath, which tainted prior   
   criminal cases. I find this omission inexplicable and conclude   
   he must have overlooked them. Had the district judge taken these   
   incidents into account, he might well have made a different   
   finding.   
      
   In case you’re wondering, the district judge in question is   
   Judge Robert C. Broomfield (D. Ariz.).   
      
   For the Arizona state officials, the drama might not be over.   
   Here’s the last paragraph of the panel opinion:   
      
   The clerk of our court shall send copies of this opinion to the   
   United States Attorney for the District of Arizona and to the   
      
   [continued in next message]   
      
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