PHOENIX - Attorneys for an Arizona woman awaiting retrial on charges that she had a part in the murder of her 4-year-old son asked a judge Monday to release her from jail
while she awaits trial.
Debra Jean Milke's lawyers want her released from jail even though another judge had ruled more than a week ago that she was to be held without bond.
They filed a motion with Maricopa County Superior Court asking that an evidentiary hearing be set, adding that Milke also would like to visit her terminally ill mother who's been battling cancer for more than three years.
A Sept. 30 retrial has been set for Milke on charges that she was involved in the 1989 shooting death of her son Christopher. Prosecutors are again seeking the death penalty.
Defense attorneys are focusing on a section of the Arizona Constitution that says people charged death penalty-eligible crimes are automatically denied bail if the proof against them is evident or the presumption of guilt is great.
They say Milke should be released because the evidence against her is weak. They cite a federal appeals court ruling in March that threw out Milke's conviction and death sentence.
The decision said there were no witnesses or evidence linking Milke to the murder besides a now-retired detective who claimed Milke confessed to the crime but who also had a history of misconduct, including four other criminal cases in which the appeals court concluded he lied under oath.
Milke has disputed that she confessed to the crime and has maintained that she is innocent.
Prosecutors adamantly oppose her release and argue that she isn't entitled to bail.
Maricopa County Superior Court Judge Rosa Mroz has set an Aug. 1 hearing to consider Milke's bond request.
Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in December 1989. He was then taken into the desert by two men and shot in the back of the head.
Milke's roommate, James Lynn Styers, and his friend Roger Mark Scott are on death row for carrying out the killing. Authorities say Milke's motive was that she didn't want the child anymore and didn't want him to live with his father.
Milke's lawyers also are planning to ask the judge in the coming weeks to throw out Detective Armando Saldate Jr.'s claim that Milke confessed to the killing. An Aug. 30 hearing has been set to consider the request to suppress the detective's claim.
It's unknown whether prosecutors will call Saldate as a witness or whether Styers and Scott will testify after declining to do so at Milke's first trial.