Chief Judge Alex Kozinski speaking at Yale Law School last year.

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 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.

Most police officers and prosecutors are honest and honorable public servants. But there’s no denying that prosecutorial misconduct, or at least overzealousness, does happen. In the past few weeks alone, we’ve mentioned improper, racially charged remarks by a prosecutor — remarks that two Supreme Court justices openly condemned — and another case that one of our writers believes to be “a scandal and a disgrace.”

It’s no wonder, then, that even Chief Judge Alex Kozinski, a high-ranking member of the federal judiciary, has libertarian leanings and skepticism of government power. If your Kozinski fix is not yet sated, check out his excellent interview with Matt Welch of Reason.com:

Ninth Circuit Panel Overturns Murder Conviction [Volokh Conspiracy]
Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals [Reason.com]
Milke v. Ryan [U.S. Court of Appeals for the Ninth Circuit]

Earlier: Benchslap of the Day: Justice Sotomayor Thinks You Should Turn Off Your Racist Light Bulb
The Kevin Ring Case Is a Scandal and a Disgrace: Five Things I Think You Should Know


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