Steve Drizin, one of the world’s leading experts on wrongful convictions and false confessions, writes: I love the unexpected e-mail or phone message announcing a win in a wrongful conviction case. Such e-mails are rare, but even rarer in a capital case. I received such an e-mail today in the case of Debra Milke, an Arizona woman on death row for more than two decades for allegedly hiring two men to murder her son. I’ve always had my doubts about Milke’s guilt but I’ve never doubted that she was interrogated by a “bad cop” by the name of Saldate. The only evidence against Debra was an alleged unrecorded confession that was the product of an interrogation by a detective who was ordered to record the interrogation but refused to do so. The trial boiled down to a swearing contest between Milke and Saldate which Saldate won and these credibility findings have haunted the case ever since even as evidence of Saldate’s mendacious character surfaced again and again. The State knew that Saldate was a liar who had a long history of misconduct and disciplinary violations – yet they failed to produce this information to the defense. It was only through the brilliant post-conviction and habeas work of Milke’s lawyers – Lori Voepel, Mike Kimerer, and Larry Hammond – that the full scope of Saldate’s misconduct came to light. And the state court and the federal district judges paid little attention to it.
Their hard work finally paid off today in the stunning opinion of the 9th Circuit. The opinion is based on Brady and Giglio but it is the concurrence of Judge Kozinski that deserves special mention for those who support electronic recording of interrogations. Kozinski would have ruled that Milke should have been given a new trial on Miranda violations and on voluntariness grounds. His opinion provides one of the strongest arguments for electronic recording of interrogations and raises questions about how much deference to give to state court factual findings when there was no basis for the interrogating officer not to record the interrogation. Without a recording, Kozinski, writes the state of Arizona is prepared to execute a woman solely on the sayso of an admitted chronic liar, who disobeyed a direct order to record the interrogation. That is simply too thin a reed upon which to rest a capital conviction (or any conviction, for that matter). It’s hard to do justice to Judge Kozinski’s opinion which not only takes Saldate to task but takes his supervisors and prosecutors to task for continuing to let him interrogate suspects and build cases with confessions after his misconduct came to light.
Congratulations again to the lawyers and to Ms. Milke. After such disappointment, today is a day they can relish at least until they have to get back to work to prevent a higher court from snatching away their victory. The Center on Wrongful Convictions has been proud to play a small role in this effort. We filed an amicus brief in this case in 2007. Much of Judge Kozinski’s opinion – especially his defense of recording and his lack of faith in factual findings based on unrecorded interrogations (at least in a case with Saldate) – tracks arguments we made in the amicus brief. My colleague Laura Nirider, then “only” a law student, co-wrote the brief with me.
Steve Drizin, Center on Wrongful Convictions, Northwestern University School of Law