PHOENIX - Lawyers for an Arizona woman who spent more than two decades on death row before having her conviction overturned expressed optimism Thursday after an attorney for the lead detective in the case noted his client wouldn't testify at her planned retrial.
Debra Milke was released last week on $250,000 bond while prosecutors prepare to put her on trial again for the 1989 killing of her 4-year-old son. A refusal by the former detective to testify marks a big setback for the prosecution.
The 9th Circuit Court of Appeals overturned her conviction in March, stating that prosecutors should have disclosed information that cast doubt on the credibility of now-retired Phoenix police detective Armando Saldate Jr.
Saldate testified at Milke's trial that she confessed to him in a closed interrogation room, but the jury had only his word to go on. The interview wasn't recorded, and Saldate had destroyed his notes. Milke denied that she had confessed, but the detective's testimony was crucial to her conviction.
A new trial date had been set for Sept. 30, but Maricopa Superior Court Judge Rosa Mroz canceled it pending future hearings. Saldate is set to appear in court Sept. 23, during which the judge wants him to explain why he plans to assert his Fifth Amendment right against self-incrimination.
Saldate's attorney, Larry Debus, said his advice to his client was not to testify at Milke's retrial, "but he has to decide whether to take it."
Mroz made it clear that if Saldate doesn't testify, "the confession doesn't come in."
"If the confession is out, the state has to tell me whether they want to proceed with the trial," Mroz told attorneys on both sides.
Without the confession, "there's really no case," Milke's attorney, Michael Kimerer, said outside court Thursday.
Maricopa County Attorney Bill Montgomery declined comment.
Earlier in the week, however, Montgomery said his office was still preparing for a retrial, but wasn't ruling anything out.
"I am not so emotionally and personally invested in this case that we are hell bent for trial regardless of what happens," Montgomery said.
Doubts about Saldate's honesty arose during Milke's appeals. The 9th Circuit concluded in March that prosecutors' failure to turn over evidence related to Saldate's credibility deprived Milke's attorneys of the chance to question his truthfulness before jurors.
"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.
The court noted several instances in which judges threw out confessions or indictments because Saldate lied under oath and others in which cases were tossed out or confessions excluded because the detective violated the suspect's constitutional rights. Jurors at Milke's trial were not made aware of Saldate's dubious past.
The court ordered its clerk to send along copies of the opinion to federal authorities for "possible investigation into whether Detective Saldate's conduct ... amounts to a pattern of violating the federally protected rights of Arizona residents."
His attorney indicated Thursday that was at least partly why he advised his client to assert his Fifth Amendment right against self-incrimination.
Saldate has not returned telephone calls from The Associated Press.
Milke was convicted in 1990 for her role in the death of her 4-year-old son, Christopher. Authorities say she had him killed, in part, to keep him from her ex-husband. They say she dressed the boy in his favorite outfit in December 1989, telling him he was going to see a mall Santa Claus before handing him over to two men who took the child into the desert and shot him three times in the back of the head. Both men are currently on death row.