Having a Wonderful Adventure from Somewhere on the Road

September 7, 2014

Sunday, September 7, 2014

Good morning:

Crane-Station and I were hacked rendering our computers inoperable. Our place was burglarized, our property vandalized and stolen. Our bank account was breached and money stolen.

Our lives were threatened.

We left Kentucky in a hurry to avoid a worse fate.

This problem began when someone burglarized our home and obtained the access code to our AT&T router, which wasn’t difficult to do since it was printed on the side.

Our apartment was trashed.

Then both of our computers were hacked. Our administrator privileges were usurped, our passwords were altered, and we could no longer log-in to our computers.

I was able to reset and restore my computer to the state it was in when I purchased it, but Crane ended up in the same place unable to log-in after she reset hers.

My computer now appears to be operating normally with assistance from HP Tech Support.

Looks like we offended some people.


The Double Jeopardy Clause does not prevent charging Darren Wilson with murder

December 18, 2014

Thursday, December 18, 2014

Good morning:

The Double Jeopardy Clause does not prevent charging Darren Wilson with murder.

The Double Jeopardy Clause is in the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The basic purpose of the clause is to prevent a prosecutor from retrying a person who has been found not guilty. To understand double jeopardy, one has to know when jeopardy begins and when it ends. Note that the clause does not prohibit jeopardy; it prohibits double jeopardy.

When does jeopardy begin?

As a matter of law, jeopardy (i.e., the possibility of conviction) does not attach (i.e., begin or start) until the jury has been selected and sworn in a jury trial. It attaches in a bench trial when the first witness has been sworn. Note that jeopardy does not attach when a person is charged with a crime.

When does jeopardy end?

Jeopardy ends when a person has been found guilty or not guilty of a crime.

What happens when someone appeals a conviction and sentence?

If the conviction is reversed by an appellate court, the conviction is vacated or set aside and the case is remanded (i.e., sent back) to the trial court for further proceedings. This means the defendant returns to being in jeopardy again. However, it isn’t double jeopardy because the first state of being in jeopardy has not concluded yet. The prosecution has the option of dismissing the case, retrying the case, or resolving the case with a plea bargain.

Note that there is no limit to the number of times a person can be retried for the same offense, so long as an appeal from the result in each trial results in the conviction being set aside and the case remanded for a new trial.

What about a second prosecution by the federal government after an acquittal in state court?

The Double Jeopardy Clause does not prevent a subsequent prosecution for the same offense by a different sovereign. A good example is drug offenses, although for reasons of comity and proper allocation of resources, federal and state prosecutors have established guidelines generally based on drug quantities to avoid double prosecutions. The feds prosecute the cases that involve larger quantities of drugs with the states handling the lesser quantities.

Can Wilson be prosecuted for killing Michael Brown?

Yes, because jeopardy has not even attached yet.

Nothing except racism and an obvious conflict of interest prohibits McCulloch from charging Wilson with a prosecutor’s information or summoning a new grand jury to indict him.

With or without Witness 40, there never has been a legitimate or credible argument against probable cause to believe Wilson murdered Brown.

With the total collapse of her credibility, however, and the strong probability that the prosecution knew before they put her on the stand that she had not witnessed the shooting, I firmly believe the investigation of the Michael Brown shooting must now expand to include an investigation to determine if McCulloch, his prosecution team and the police officers who testified before the grand jury conspired to obstruct justice by concealing the commission of a murder.

Consider, for example, that Kathy Alizadeh, an assistant prosecutor informed the jury before Wilson testified that he could lawfully shoot and kill a fleeing felon. She also handed out a copy of a Missouri statute that contained that language. However, she did not tell them that the statute was declared unconstitutional in 1985 and replaced with language that limits a police officer’s use of deadly force to stop a suspect fleeing from the commission of a violent felony who reasonably constitutes a danger to others. Although she later provided the grand jury with a corrected version of the statute she did not expressly point out the difference between the two. The difference was significant because the police dispatcher broadcast a theft of some cigars, which is a misdemeanor shoplift and not a violent felony. In addition, Wilson told his supervisor at the scene of the shooting that he had not heard the dispatcher’s broadcast. Finally, Wilson could not have reasonably believed Brown was a danger to him or to others since he was unarmed and had stopped, turned around and raised his hands in the universal symbol of surrender. There simply is no excuse for a professional prosecutor to give an invalid instruction.

I believe McCulloch, his prosecution team and the police conspired to protect Wilson by obstructing justice and suborning perjury with Witness 40.

I would love to prosecute them for what they did and Darren Wilson for the murder of Michael Brown.


St.Louis County prosecutor should be investigated for conspiracy to suborn perjury

December 17, 2014

Wednesday, December 17, 2014

Good afternoon:

Missouri Governor Nixon should appoint a special prosecutor to to investigate St.Louis County prosecutor Robert McCulloch and his two assistant prosecutors for engaging in a conspiracy to suborn perjury in the Michael Brown shooting case and Darren Wilson should be charged with murder for killing Michael Brown.

Witness 40, whom we now know to be Sandra McElroy, was the only grand jury witness who corroborated Darren Wilson’s claim that Michael Brown grunted, lowered his head and bull-rushed him leaving him no alternative except to shoot him to death. Her testimony was contradicted by 16 eyewitnesses who testified that Darren Wilson shot and killed Michael Brown as he raised his hands in the universal gesture of surrender.

Thanks to Michael Bastone, Andrew Goldberg and Joseph Jesselli at the Smoking Gun, we now know that she committed perjury before the grand jury. She was not present at the scene and made everything up after following media reports about the shooting.

For example, she lives approximately 30 miles from Ferguson and initially told the grand jury that she drove to Ferguson to meet with an African-American friend with whom she had last had contact in 1988. But she could not recall her name or her address. When she returned to testify a second time before the grand jury, she admitted that she had not told the truth.

When Sandra McElroy [Witness 40] returned to the Ferguson grand jury on November 3, she brought a spiral notebook purportedly containing her handwritten journal entries for some dates in August, including the Saturday Michael Brown was shot.

Before testifying about the content of her notebook scribblings, McElroy admitted that she had not driven to Ferguson in search of an African-American pal she had last seen in 1988. Instead, McElroy offered a substitute explanation that was, remarkably, an even bigger lie.

McElroy, again under oath, explained to grand jurors that she was something of an amateur urban anthropologist. Every couple of weeks, McElroy testified, she likes to “go into all the African-American neighborhoods.” During these weekend sojourns–apparently conducted when her ex has the kids–McElroy said she will “go in and have coffee and I will strike up a conversation with an African-American and I will try to talk to them because I’m trying to understand more.”

Her journal entry for the day of the shooting says she went to Ferguson “to stop calling Blacks ‘ni**ers’ start calling them people.”

Hooray for her.

I encourage readers to read the article. The authors did a splendid job doing what good investigators should do. Discover the truth.

What is deeply troubling is how easy they were able to determine who Witness 40 was and prove that she made up everything. They figured that out in two days. The FBI figured it out when they interviewed her on October 22nd, before she testified before the grand jury. Questions we must all ask are:

1) why didn’t the police and the prosecutor figure this out?

2) if they did figure it out, when did they do so?

3) did they know that she made the whole story up before they put her on the stand for the first time at the grand jury?

4) if not, did they know that she was a liar before they put her on the stand for the second time at the grand jury?

They were incompetent, if they did not know she was a liar. If they did know she was a liar, they suborned perjury by having her testify before the grand jury — not once, but twice. Subornation of perjury is a felony.

St. Louis County Prosecutor Robert McCulloch has some ‘splainin’ to do, but he probably should exercise his Fifth Amendment right to remain silent as should his assistant prosecutors, especially the one who gave the wrong legal definition regarding the lawful use of force.

Seriously folks, you can’t make this stuff up.

Although McElroy did a terrible thing, she has serious mental health issues that need to be considered lest she be judged too harshly. I suspect she was used and I am more offended by the people who used her and abused the public trust to prevent the grand jury from indicting Wilson.


Why did the SCOTUS grant cert in Heien

December 16, 2014

Tuesday, December 16, 2014

Good afternoon:

Annie Cabani asked the following question:

It’s baffling, too, why they granted certiorari in this particular case. Apparently, the NC Supreme Court had achieved the same result as the SCOTUS, so why didn’t they just leave it alone?

It’s like they went out of their way to issue this constitutional ruling (and a quick one … only two months) when they didn’t even need to, yet they slam their door on folks who really need to be heard. What’s up with that?

Answer:

They had an agenda. They have been looking for a case with a suitably appropriate set of facts upon which they could base their decision carving out an exception to the reasonable-suspicion rule and the exclusionary rule, which is a judicial remedy that excludes evidence seized in violation of that rule (and others). They wanted the Heien case from NC because it only applies in NC. The federal courts and all other state courts are not bound by it. They accepted review because they wanted to establish that rule for all courts.

I believe this new rule that exempts operation of the exclusionary rule for reasonable mistakes by police regarding what is unlawful is absolutely awful. Only time will tell what constitutes reasonable ignorance or stupidity. Nothing good will come of this bizarre decision.

Explanation:

The SCOTUS has the power of discretionary review, which means they get to choose the cases they are willing to review. With few exceptions, intermediate courts of appeal do not have the power of discretionary review. They have to accept review because litigants in the trial, where all trials take place, have a right to appeal if they are unhappy with the result.

Before each term, the nine justices of the SCOTUS meet and decide what new legal rules they want to establish and what existing rules they want to eliminate or change. Each term they receive thousands of cert petitions, which are applications for discretionary review. They are called petitions (requests) for a writ (order) of certiorari (granting review). They review them for cases containing the issues they want to address. Within that group they look for cases with the best set of facts to support the decision they want to reach. They grant cert in those cases and deny cert in the rest. At least four votes in favor of granting cert are necessary for a petition to be granted.

All state supreme courts have the same power but they call the requests for review petitions for discretionary review.

A decision by a state supreme court is binding authority on every court within that state. It is non-binding authority on other state courts and the federal courts.

A SCOTUS decision interpreting federal law, the Constitution or its amendments, including the Bill of Rights, is binding authority on every court in the land. A decision by a federal circuit court of appeal interpreting federal law, the Constitution or its amendments, including the Bill of Rights, is only binding on courts in that circuit.

Procedural History of Heien

The following summary was prepared by the official Reporter of Decisions:

Following a suspicious vehicle, Sergeant Matt Darisse noticed that only one of the vehicle’s brake lights was working and pulled the driver over. While issuing a warning ticket for the broken brake light, Darisse became suspicious of the actions of the two occupants and their answers to his questions. Petitioner Nicholas Brady Heien, the car’s owner, gave Darisse consent to search the vehicle. Darisse found cocaine, and Heien was arrested and charged with attempted trafficking. The trial court denied Heien’s motion to suppress the seized evidence on Fourth Amendment grounds, concluding that the vehicle’s faulty brake light gave Darisse reasonable suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision, which requires that a car be “equipped with a stop lamp,” N. C. Gen.Stat. Ann. §20–129(g), requires only a single lamp—which Heien’s vehicle had—and therefore the justification for the stop was objectively unreasonable. Reversing in turn, the State Supreme Court held that, even assuming no violation of the state law
had occurred, Darisse’s mistaken understanding of the law was reasonable, and thus the stop was valid.

Note that this summary is not part of the decision itself. Better to read the opinion itself and cite from it rather than the summary that is not binding on anyone. Some summaries are better than others. Woe unto the law student or lawyer who gets it wrong by relying on the summary. Lawyers fondly refer to such moments as get-out-your-checkbook time.

We could sure use some donations. We have only had one donation for $10 this month. Please help, if you can afford it.

Thanks.


Police who act like members of an occupying army deserve no respect

December 15, 2014

Monday, December 15, 2014

Good morning:

Police who act like members of an occupying army are a clear and present danger to everyone and deserve no respect. All of them should be fired. We must demilitarize our police departments, subject them to citizen review and require them to engage in community policing in service to the people.

Yesterday, yet another cop made a fool out of himself by complaining about a professional football player who dared to protest two indefensible police killings of unarmed black males. This time it was Jeff Folmer, president of the Cleveland Police Patrolman Union. He complained about Andrew Hawkins, a wide receiver for the Cleveland Browns who wore a shirt over his jersey during the pregame introductions yesterday that said, “Justice for Tamir Rice – John Crawford.”

Tamir Rice is the 12-year-old boy who was playing by himself in a gazebo in a public park waving a toy gun around when two cops in a police vehicle suddenly drove up and stopped on the grass. In no more than two seconds, the cop sitting on the passenger side got out and shot him to death. John Crawford was shopping in a Walmart for a toy to give to his son. After he selected a pellet rifle, a cop shot and killed him. Rice and Crawford were black. The cops who killed them were white. Both were employed by the Cleveland Police Department.

They are not the only rotten apples in the Cleveland Police Department.

Two weeks ago Attorney General Eric Holder announced that the Justice Department’s civil rights investigation of Cleveland’s police department found that it had engaged in a “pattern or practice” of unreasonable and unnecessary use of force. CNN reports,

Above a vehicle bay at one of the Cleveland Division of Police’s district stations hangs a sign that reads, “forward operating base,” a term usually used to describe an area of tactical operations in a war zone. The sign sends a message indicative of the community’s opinion of the division, Justice Department officials said.

“This characterization reinforces the view held by some — both inside and outside the Division — that CDP is an occupying force instead of a true partner and resource in the community it serves,” the investigative report said. It’s one illustration, the Justice Department’s report says, that “officer training instills in officers an ‘us-against-them’ mentality.”

As a result of the DOJ’s disturbing findings, the DOJ and the City of Cleveland have signed an agreement “to develop a court-enforceable consent decree that will include a requirement for an independent monitor who will oversee and ensure necessary reforms.”

Despite the CPD’s shocking record of violating civil rights and its acknowledgement that it must change from its occupation-army-in-a-war-zone mentality to a community policing mentality working in partnership with the people it serves rather than ruling them, along comes Jeff Folmer with a gas can and match demanding an apology from Andrew Hawkins and the Cleveland Browns.

In a statement to Cleveland WEWS-Channel 5, CPPU President Jeff Follmer demanded an apolgy from the Browns. Follmer also called Hawkins’ actions pathetic.

“It’s pretty pathetic when athletes think they know the law,” Follmer said. “They should stick to what they know best on the field. The Cleveland Police protect and serve the Browns stadium and the Browns organization owes us an apology.”

Follmer does not get it. The Cleveland Police Department is not an occupation army that gets to kill anyone for any reason anytime it feels like it and literally get away with murder by saying “I thought I saw a gun.”


NYC Policemen’s Benevolent Association needs to STFU and stop killing people

December 14, 2014

Sunday, December 14, 2014

Good morning:

As thousands of people demonstrated in Washington DC, New York, Boston and other cities across the country yesterday against an epidemic of homicides in which police officers have killed unarmed black citizens, the New York City police officers union kicked off a campaign to prevent Mayor Bill de Blasio of New York City and City Council Speaker Melissa Mark-Viverito from attending police funerals.

WTF, you ask?

Patrick Lynch, the head of the NYPD Police Officers Benevolent Association, wants everyone to know that he is really really upset about their lack of support for Officer Pantaleo, the cop who killed Eric Garner with a choke hold. Never mind that Eric Garner was unarmed and had just broken up a fight by separating the combatants. He had to be stopped from selling single cigarettes, or loosies as they are called, don’cha know, because respect for the rule of law would cease to exist if they didn’t, and the terrorists would take over Staten Island and start beheading people. They have to be stopped over there so they don’t kill us over here, or some such nonsense.

Reuters reports that,

The New York City Patrolmen’s Benevolent Association posted a form on its website, for members to sign, that requests that de Blasio and City Council Speaker Melissa Mark-Viverito keep away from funeral services should an officer die in the line of duty.

/snip/

The form, entitled “Don’t Insult My Sacrifice”, accused the pair of “consistent refusal to show police officers the support and respect they deserve.”

Meanwhile Mayor deBlasio, who is married to a black woman, is more concerned about the survival and safety of their son than placating whining cops with sweet political nothings praising the incompetent grand jury decision not to indict Pantaleo and declaring that it’s time to move on. He didn’t have time for that bullshit. He had to have the talk that no parent wants to have.

He had to warn his biracial son to be wary of racist cops with guns and bad attitudes or he might end up as yet another name on a long list of innocent unarmed victims murdered by police.

Here’s Reuters again,

In response, de Blasio and Mark-Viverito released a joint statement saying the union’s campaign was divisive.

“Incendiary rhetoric like this serves only to divide the city, and New Yorkers reject these tactics,” local media quoted them as saying in the statement.

Good for them.

I think the NYPD Police Officers Benevolent Association and its members need to STFU and stop killing people.


The Importance of the Barn in Great Depression Farming

December 13, 2014

by Crane-Station

Letty, 89, addresses some of the structures on a farm that were important during the Great Depression.

Today when we think of  structures on a property, we tend to think of houses that people live in. To farmers, some of the other buildings, namely the barn, were more important because they housed the animals. The animals had to be protected. There were two barns- a main barn and a barn for the large animals. They were not connected to each other. The ‘lower barn’ was divided into stalls for the cows and horses.

Barns were constructed from timber off the property such as oak or walnut. Red was not a native color to that area of Missouri at that time, so the barn was the color of the natural wood. It had a metal roof and gutters that led into barrels. The collected rain water was used for cattle water, chicken water, and also to wash clothes. Kids were told to stay away from the barrels because if you fell in, you couldn’t get out. One child drowned after climbing into one of the barrels. The design of a barn was not hit and miss and it involved science, although we may not think of it that way today. People who didn’t know about farming failed.

It was important for the interior of the barn to be dry. The harnesses, tools and hay couldn’t get wet and the hay crop had to be kept dry and protected from mold. Bundles were pulled to the barn with a tractor, or with horses, and the hay was lifted by a fork to the hay loft. The hay was loose hay, for the most part. Some of the chickens favored the barn over the chicken house, so they could roost, lay eggs and hatch their own chickens. To prevent chickens from getting into the hay loft to lay eggs, the trap door in the hay loft floor was kept closed.

Perhaps the most difficult but the most pleasing job I did on the farm during those years was a winter job. In the off-season we repaired the gunny sacks for the wheat. There was no time to do this job in the summer; nobody had time to patch their sacks while tending to crops. Since we could not have the gunny sacks in the house, we would sit in the barn and patch the sacks using heavy thread and darning needles.

The hay loft was good for something else. When the folks left, the kids could jump out of it. We could have broken every bone we had, and the folks would have had a fit if they’d ever found out. The loft was also a haven, as a place to bring books and dolls.

Outside the back door of our house was a shed. Behind that was the outhouse. My mother would have preferred it to be behind the chicken house if possible because she was so meticulous. In the first place, there wasn’t any toilet paper in those days. We used catalogs and they usually hung on a hook on the wall.

Kids used to experiment with smoking corn silks. If they could find an occasional cigarette paper, they could roll the corn silks in that, but if not, they experimented with other papers. One time a boy was in the outhouse on his farm- it was behind the chicken house- and he lit a page of one of the catalogs. It caught fire, so he threw the paper down the toilet hole. It was a dry day, and the burning page, having fallen onto a dry pile of Sears and Roebuck pages in the hole, quickly lit the pile of pages. The outhouse caught fire, fell onto the chicken house, and that lit the chicken house on fire. Fortunately the chickens were out in the yard scratching around, but people came running with buckets of water for what was becoming a multi-structure fire.

Every farm house had an anteroom that people entered before entering the house. This was one hundred percent standard operating procedure, and the room had a place for boots, and a wash bucket or a large bowl for water. Some called this room a “summer kitchen,” because it was a room where, for example, hog intestines were cleaned for use as casing- a task for a sort-of-outside room.

We were also always bottling the lambs. I do not ever remember a year when we weren’t nursing lambs behind the stove in the house. There was always a mama who had triplets or twins she didn’t like or that were born early in the cold, and we brought the orphans into the house and fed them out of bottles with rubber nipples. The lambs were tame and very hungry and they got strong in a hurry. They would butt their little heads against you, and when they were old enough to run, we sent them back to mama. We always had an area behind the stove fixed for the bottling of the lambs.

Barns in America have almost become icons, and the styles and purposes are different from one place to another. Our barn was constructed in 1925-1926.

Creative Commons photo (barn) courtesy Nicholas A. Tonelli  on flickr.

Creative Commons photo (outhouse – Tinsley Living Farm) courtesy  Tim Evanson on flickr.

 

 

 

 

 


Debra Jean Milke is free after spending 22 years on death row

December 12, 2014

Friday, December 12, 2014

Good evening:

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the facts:

On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother to let him go again. Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing.

Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate’s day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate’s “style,” as he described it, was “a little different” — he preferred a frontal assault. “I knew that I was going to be straightforward with [Scott], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts.”

Soon after Saldate’s appearance, Scott broke. He led the detectives to Christopher’s body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved.Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Milke had gone to stay with her father and step-family after she learned of Christopher’s disappearance.

In Florence, a deputy sheriff invited Milke to headquarters to wait for Saldate. Saldate found Milke waiting in a 15-by-15-foot room of the Pinal County jail. She hadn’t been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm’s length at most, and leaned in even closer. That’s when he told her that the police had found her son — dead.

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to try to make me feel for her, and I didn’t buy it. I didn’t buy it….”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she’d complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.”

With that, Saldate claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke — his drug and alcohol abuse and his arrests — recounted how she’d gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate’s opinion about whether her family would ever understand. (His view: No.)

By the end of the interview, Saldate had more than just cinched the case against Milke; he’d helped her emotionally. According to Saldate, Milke said she was “starting to feel better and was starting to get some of her self-esteem back.” Saldate also testified that Milke asked whether she would be released that night, and when he said she wouldn’t be, she asked whether the court could give her “probation for life” if “she could have her tubes tied and never have children again.”

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

Normally that would be the end of the matter. Right or wrong, a jury’s credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

The Appendix contains summaries of some of Saldate’s misconduct and the accompanying court orders and disciplinary action. 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. See pp. 1010-11 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke, In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.

Comments on Torture

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

- right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.


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