Posted by Bob Lord
I've said before that Steve Lemons is the best journalist in Arizona. His Feathered Bastard post today, Bill Montgomery's Actions Argue in Favor of Ethical Rule He Opposes, helps make my case.
This seems simple enough. There's a proposed amendment to the ethical rule that requires prosecutors to turn over exculpatory evidence. The amended rule, Lemons reports,
would require prosecutors to reveal to defense counsel or a court any "new, credible, and material" evidence that creates a "reasonable likelihood" a convicted defendant did not commit the crime in question.
Under the suggested guidelines, a prosecutor must "make reasonable efforts" to look into the matter or have the "appropriate law enforcement agency" investigate the new evidence. And if there is "clear and convincing" evidence of a convicted person's innocence, the prosecutor must work to "set aside the conviction."
Seems that any ethical prosecutor would have no problem with this amendment. After all, nobody wants to keep wrongly convicted defendants locked up.
Well, nobody except Bill Montgomery. Montgomery is adamantly opposed to the amendment.
Does Montgomery have a rational basis for his opposition? Not so much. From Lemons:
Writing on behalf of his jefe in a commentary addressed to the Arizona Supreme Court , Monty's Chief Deputy Mark Faull calls the proposed rules, "confusing, burdensome, and unnecessary."
Faull contends that those pushing for new rules have presented "no convincing evidence there is a `problem' of wrongful convictions in Arizona." He argues that the amendments will not alter the behavior of "those few rogue prosecutors" out there.
Which is sort of like arguing there should be no laws against bank robbery, since there always will be bank robbers.
So, what's Montgomery's real reason for opposing the amendment? Here's Lemons' theory:
This year, Debra Milke's 1990 conviction in the murder of her four year-old son Christopher was overturned by the U.S. Ninth Circuit Court of Appeals because the Maricopa County Attorney's Office did not disclose evidence that could have impeached the testimony of the prosecution's chief witness, Armando Saldate, then a Phoenix homicide detective.
Saldate claims Milke confessed to him, but Milke denies this. There's no recording, witness or signed statement to back up Saldate's story. So you can see why Saldate's problem with truth-telling — kept on the DL by prosecutors back then — would be important info for Milke's defense.
The case against Milke now is so weak that she is out on bond, something that almost never happens in Arizona for a defendant charged with a capital offense. Saldate's attorney has indicated that his client will invoke his Fifth Amendment right to silence if Saldate is called to testify.
Nevertheless, Montgomery wants to put Saldate on the stand in a retrial of Milke. So much so, he even told reporters in a press conference that Saldate did not have to fear prosecution for anything he said on the stand. In fact, Monty had a letter from the U.S. Justice Department stating that the statute of limitations had expired on any federal charges.
It was a letter Monty neglected to make available to the court.
Judge Rosa Mroz, the jurist in the Milke matter, was annoyed to read of this development in the newspaper and ordered the prosecutor in the case to appear before her and offer an explanation.
Later, Mroz wrote that,
"The Court finds the State's explanation as to why the Court was not informed about such
a letter surprising. The Court advises the State that if the State believes the information to be relevant enough and developed enough to discuss it at a press conference, then the State should have given the information to the Court because the Court will be deciding whether Detective Saldate may invoke his privilege against self-incrimination, not the media."
Now, if Monty is not completely forthcoming to a judge in a case that is being closely watched by the press, how forthcoming will he and his prosecutors be if they have possibly exculpatory evidence in a case that the media has paid little heed to?
Exactly. Montgomery would prefer not to deal with the inconvenience of turning over exculpatory evidence.
So, some would say Lemons' conclusion is snarky:
There's even a Grand Canyon-sized loophole in the proposed rules: prosecutors who err while acting "in good faith" are off the hook.
Why do Faull and Monty want to block these proposals, despite this huge concession?
Perhaps for them, "good faith" is a foreign concept, and "bad faith" is something they practice on a daily basis.
Not me. I'd say it's fair comment.