PHOENIX - A judge on Monday set a 2015 trial date for a woman released from death row after an appeals court threw out her original conviction in the 1989 killing of her 4-year-old son.
Debra Milke was released Sept. 6 on bond. She was convicted in 1990 for having two men take her son, Christopher, into the desert outside Phoenix and shoot him in the back of the head.
The 9th Circuit Court of Appeals overturned Milke's conviction in March. The panel cited the prosecution's failure in her trial to turn over evidence that deprived her attorneys the chance to question the credibility of the state's key witness -- a detective who told jurors she confessed.
The court also found that Milke had not waived her right to have an attorney present during her interrogation by then-Phoenix police Detective Armando Saldate Jr.
During a hearing Monday, Maricopa Superior Court Judge Rosa Mroz set a Feb. 2, 2015, retrial date for Milke, who appeared in court with her attorneys but declined comment afterward.
The prosecution, however, faces several key hurdles, and it remains unclear if the case will ever go before jurors again.
Saldate's attorney, Larry Debus, told the judge his client plans to assert his Fifth Amendment right against self-incrimination and refuse to testify again.
Mroz made it clear that if Saldate doesn't take the stand at Milke's retrial, the purported confession, which was crucial to her original conviction, can't be used.
In its ruling, the appeals court accused Saldate of numerous instances of previous misconduct, including several 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, and requests for the entirety of his personnel file were rebuffed by prosecutors, the Phoenix Police Department and the trial judge.
Saldate has not returned telephone messages from The Associated Press.
Maricopa County Attorney Bill Montgomery has dismissed the appeals court's findings as a "wild-goose chase" and insists it got the allegations against Saldate wrong. He called the court's findings "patently false," referring to them as "grandiose mischaracterizations."
Regardless, the appeals panel sent its opinion to federal authorities, asking them to investigate whether Saldate's conduct amounted to repeated civil rights violations. Last month, the U.S. attorney's office in Arizona said statutes of limitations had passed and it had no case against him.
While Montgomery has repeatedly sought to assure Saldate he is not in danger of being charged, hoping to convince him to testify again, the Civil Rights Division of the Department of Justice still has not weighed in on whether it plans to pursue any probes against the former officer.
The appeals court's allegations and any potential threat of charges are at the heart of Saldate's intention to assert his Fifth Amendment right.
The judge has asked attorneys for the state, Saldate and Milke to prepare motions in the coming months as she decides whether to even allow the former detective to refuse to testify.
"It seems to me there is going to be an issue as whether he can or cannot," Mroz said Monday.
Separately, Milke's attorney is fighting to suppress the purported confession at her retrial. She has denied indicating to Saldate that she was in on the killing, and the jury had only his words to consider since he ignored a supervisor's directive to record the interview. The two men convicted in the killing did not testify at her trial and remain on death row.
In addition, Milke's attorney, Michael Kimerer, told the judge he planned to file a motion arguing that a retrial would be considered double jeopardy in violation of her Fifth Amendment right protecting citizens against being tried twice for the same offense.
"If you can show misconduct by the state, than double jeopardy applies," Kimerer has said.