PHOENIX - A decision by a court to throw out the conviction of a woman who spent 22 years on death row in the execution-style murder of her 4-year-old son has created a dilemma for prosecutors as they decide how to move forward with the case.
Prosecutors insist that they plan to retry Debra Jean Milke in the 1989 death of her son Christopher, but their case will carry considerable baggage because the conviction was tainted by a detective with a long history of misconduct, including four other criminal cases in which an appeals court concluded he lied under oath. As a result, a confession obtained by the detective was called in to question.
At a hearing Wednesday, Maricopa County Superior Court Judge Rosa Mroz set a Sept. 30 retrial for Milke. The judge also scheduled an Aug. 1 hearing to consider an upcoming request by Milke to be released on bond and an Aug. 30 hearing to hear an expected request by defense attorneys to have the detective's claim that Milke confessed to the crime thrown out.
Milke, who sports shoulder-length white and gray hair, said nothing to the judge during the hearing. Arizona Milke, the ex-husband of Debra Milke and father of Christopher, was in court during Wednesday's hearing.
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.
James Lynn Styers, Milke's roommate, and his friend Roger Mark Scott are on death row for carrying out the killing, while Milke had been convicted of ordering Christopher's death. Authorities say Milke's motive was that she didn't want the child anymore and didn't want him to live with his father. Scott said in his confession that he was promised payment for his role in the killing from a $5,000 life insurance policy Milke had taken out on him.
A future court hearing before the new trial is expected to focus on the credibility of now-retired Phoenix Detective Armando Saldate Jr.
It's unknown whether prosecutors will call him as a witness to repeat his claim that Milke, now 49, had a part in her son's death. It's also unknown whether the two men convicted and sentenced to death in the murder will testify after declining to do so at her first trial.
Michael Kimerer, one of Milke's attorneys, said he will seek bond for his client and ask a county court to throw out the detective's claim. He also said he would reject any possible attempt by prosecutors to cut a plea deal to end the case.
"Debra has always taken the position that she will not accept a plea that involves admitting she had anything to do with the death of her son," said Kimerer said.
Milke has disputed that she confessed to the crime and has maintained that she is innocent. Prosecutors are again seeking the death penalty against her and contend Milke isn't entitled to release from jail while she awaits trial.
The 9th U.S. Circuit Court of Appeals said in a March ruling that prosecutors knew about but failed to disclose Saldate's history of misconduct, including multiple court rulings in other cases that Saldate either lied under oath or violated suspects' Miranda rights during interrogations. Saldate was suspended for five days for accepting sexual favors from a female motorist and lying to his supervisors about it, the appeals court said.
The court said there was a reasonable probability that providing jurors with information about Saldate's past would have led to a different result.
Alex Kozinski, the appeals court's chief judge, said prosecutors relied on an illegally obtained confession that probably never occurred. The appeals court forwarded its decision to the U.S. Department of Justice's civil rights division for possible investigation into Saldate's conduct. The Justice Department didn't return a call left to see whether such an investigation had been launched against Saldate.
Saldate said Milke confessed to plotting the boy's death while they were alone during an unrecorded conversation. He also claimed that Milke knowingly waived her rights during the interrogation.
A man who identified himself as Armando Saldate abruptly hung up the phone when The Associated Press called him for comment. Follow-up calls to that number weren't answered.
Bill Montgomery, the top county prosecutor for metro Phoenix, said he didn't yet know whether his office would call Saldate to testify at Milke's retrial and contends the attacks on Saldate don't mesh with the facts.
And he noted that some criticism of the detective wouldn't have been admissible at trial anyway. "Character assassination isn't permitted as a legitimate course of impeachment" of a witness in court, Montgomery said.
Montgomery said he didn't
know whether Styers or Scott would testify at Milke's retrial and declined to reveal what other evidence may be presented against her.
Attorneys for Styers and Scott didn't return a call seeking comment on Tuesday.
In a taped interview with another detective, Scott said he, Styers and Milke all discussed murdering the 4-year-old and that he was promised money from the insurance policy Milke had on her child. Scott's confession wasn't allowed at Milke's trial, however.
Kimerer said Scott would be an unreliable witness because he doesn't have firsthand knowledge of some of the claims he made and because his appeals over his death sentence are winding down.
Thomas Gorman, an Arizona attorney who has defended people accused in death penalty cases but isn't representing Milke, said if Saldate's claim that Milke confessed to the crime is allowed at trial, her attorneys will be able to grill him about his history of misconduct.
"It's pretty extraordinary that anyone would want anyone sentenced to death without giving them an opportunity to cross-examine basically their only accuser in instances that goes directly to that person's credibility," said Gorman, who testified as expert witness for Scott over whether his lawyers at trial were competent.