Two weeks ago I highlighted Radley Balko’s commentary on the lack of accountability for prosecutors through the courts – namely the fact that prosecutors are usually unnamed in court opinions when they have been found to commit misconduct. In addition to preventing public scrutiny, this practice also means other courts have no ability to distinguish patterns of misconduct among particular prosecutors.
A heartening story out of Arizona this week demonstrates how courts can impose meaningful accountability for actors in our criminal justice system by simply naming names. The Open File reported on Debra Milke’s case on Monday. The detective who arrested her for the murder of her son, interrogated her, reported that she confessed to him and then said as much on the stand at her trial turns out to be a serial liar – among other things. In its ruling to overturn Milke’s conviction, the 9th U.S. Circuit Court of Appeals summarized:[His] 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.
The officer’s name is Detective Armando Saldate, Jr., and his history of lying under oath made Milke’s death sentence untenable for the 9th Circuit since there was no other evidence against her except his word. However, were it not for the fact that courts have named Saldate before, his history of misconduct might never have come to light. The state certainly wasn’t going to produce it.
Not only did the 9th Circuit call Saldate out in their opinion by name, but the three-judge panel led by Chief Judge Alex Kozinski said it intended to forward the matter to the Attorney General’s office and the Department of Justice so they can investigate whether Saldate and the officials who have accommodated him over the years might be investigated for civil rights violations. That includes the prosecutor on the case, Noel Levy, of the Maricopa County DA’s Office. The opinion reads:The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents.
The 9th Circuit has provided an excellent model of how to deal with misconduct – naming those involved and then inviting further review by institutions that have the power to call them to account. Other courts should likewise name prosecutors when they encounter prosecutorial misconduct and forward their information to state bars for disciplinary proceedings and record-keeping.
As Balko points out, “These are public officials. They work for us. And they have incredible power — the power to ruin lives. There’s really no good reason why their misconduct should be obscured.”