PHOENIX - A former detective under fire for wrongdoing and whose testimony was the crux of a conviction against a woman recently released from Arizona's death row shouldn't be forced to testify again at her retrial because he could be prosecuted on perjury and civil rights charges, the man's lawyer told a judge Friday.
Debra Milke was convicted in 1990 of having two men kill her 4-year-old son in the desert outside Phoenix.
She spent 24 years on death row before the 9th U.S. Circuit Court of Appeals overturned her conviction in March. The panel cited the prosecution's failure to turn over crucial evidence, saying that deprived Milke's attorneys of the chance to question the credibility of the state's key witness -- the detective who told jurors she confessed.
The appeals court cited numerous instances in which former Phoenix police Detective Armando Saldate committed misconduct in previous cases, including lying under oath and violating suspects' rights. The court also found that Milke had not waived her right to have an attorney present for Saldate's interrogation of her, something he contended she did.
Saldate now wants to assert his Fifth Amendment right against self-incrimination and not testify at Milke's retrial, a move that could decimate the case.
"He should not be placed in that situation," Saldate's attorney, Larry Debus, told the judge Friday. "We have a reasonable belief that he could be subject to prosecution."
Saldate did not record his interrogation of Milke, so jurors were left with his word alone that she confessed. If Saldate doesn't take the stand, the purported confession cannot be used, and there is very little other evidence linking Milke to the crime. The two men convicted in the killing did not testify at her trial and remain on death row.
Milke has maintained her innocence.
County prosecutors have assured Saldate they plan no charges against him for any wrongdoing. The U.S. Justice Department's Civil Rights Division said it had reviewed the appeals court's allegations and found there wasn't enough evidence to pursue federal charges.
But Debus argued the Justice Department's decision "isn't a grant of immunity" and, regardless, it's based solely on the Milke case, leaving Saldate open to prosecution in other cases where the appeals court found he committed misconduct.
If he takes the stand again, he would be forced to not only reiterate his previous testimony in the Milke case, a move that according to the appeals court could be considered perjury, but he would also be subject to cross-examination about the other cases in which misconduct was cited.
"It scares me and it scares Mr. Saldate," Debus said.
Prosecutors say the appeals court findings are inaccurate and Saldate did nothing wrong as they try to persuade him to testify again.
"The detective has been vilified by the media and by the 9th Circuit," prosecutor Vince Imbordino told the judge in arguing that he should be forced to testify. "If what we really want is the truth, then this detective really needs to testify.
"I'm not saying there is no basis for him to be afraid," Imbordino added while also telling the judge there is "no basis for you to permit him to take the Fifth."
Saldate spoke only briefly to the judge when asked if he still wanted to assert his Fifth Amendment right. He declined to comment outside court.
Milke also had no comment. A ruling is expected next week.
For now, a retrial is set for 2015 after Milke's release on bond in September.
Milke's attorney, Michael Kimerer, said if Saldate is allowed to assert his Fifth Amendment right, defense lawyers would seek a dismissal of the case based on lack of evidence. If Saldate does testify, Kimerer said he would use the appeals courts' assertions of misconduct to impeach the former detective's credibility.