Lawyers for an Arizona woman who spent more than two decades on death row before having her conviction overturned want a judge to bar a retrial in her son's 1989 killing on grounds that it amounts to double jeopardy.
During a hearing Friday, Debra Milke's attorneys argued a retrial would violate her Fifth Amendment right against being tried twice for the same offense since her conviction was overturned, in part, because of prosecutorial misconduct.
"The conduct is so egregious. Egregious is really an understatement," defense lawyer Michael Kimerer told the judge.
Milke was released on bond in September. She was found guilty in 1990 on charges that she had two men take her 4-year-old son, Christopher, into the desert outside Phoenix and shoot him in the back of the head.
The 9th U.S. Circuit Court of Appeals overturned her conviction in March. The panel cited, in part, the prosecution's failure to turn over evidence that deprived her attorneys of the chance to question the credibility of the state's key witness -- a detective who told jurors she confessed.
Doubts about now-retired Phoenix police Detective Armando Saldate's honesty arose during Milke's appeals. The 9th Circuit cited numerous instances in which Saldate committed misconduct in previous cases, including lying under oath and violating suspects' rights, details that were not provided to Milke's defense lawyers during her trial.
The case against Milke rested largely on the purported confession, which Saldate did not record, so jurors were left with his word alone that she told him of her involvement in the killing. Milke has maintained her innocence and denied she ever confessed. The two men convicted in the child's death did not testify against her and remain on death row.
Saldate has since asserted his Fifth Amendment right against self-incrimination and is refusing to testify at Milke's retrial.
In its ruling, the appeals court lambasted Saldate and prosecutors for an apparent win-at-all-costs strategy.
"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," Chief Judge Alex Kozinski wrote.
Kimerer argued the appeals court ruling should be enough to bar retrial, now set for 2015.
"The 9th Circuit said the state failed in its constitutional obligation to produce the material showing Saldate's false and misleading statements in court and before grand juries," he said. "Debra Milke gave up 23 years of her life based on testimony from a dishonest cop, and there's really no other evidence to support this conviction."
Prosecutors countered that the appeals court did not find the state intentionally deceived Milke's attorneys or knowingly withheld evidence.
"There is absolutely no basis under the facts or the law for this court to dismiss this case on the basis of double jeopardy," prosecutor Vince Imbordino said Friday.
Judge Rosa Mroz planned to rule at a later date.
Meanwhile, prosecutors have appealed the judge's ruling that allowed Saldate to assert his Fifth Amendment right and not testify at the retrial. He fears possible federal civil rights charges based on the 9th Circuit's accusations of his previous misconduct.
If her ruling stands and Saldate doesn't testify, it is unlikely the purported confession could be used at Milke's retrial, dealing a crushing blow to the prosecution's case.
Defense attorneys would likely then seek a dismissal of the charges based on lack of evidence.