Debra Milke appeared in Maricopa County Superior Court with hands and ankles free and dressed in civilian clothes for the first time in two decades. On Monday, the judge decided to set the retrial date for the beginning of 2015. There will be two hearings before then, one in December and one in January. Milke, now 49, is being tried again for the murder of her 4-year-old son, Christopher, in 1989.
She was convicted in 1990 and ever since then has been on death row. A three-judge appellate panel of the 9th U.S. Circuit Court of Appeals overturned her conviction and death sentence in March because her defense attorneys had not been told of the former Phoenix detective’s, who claims she confessed to him, sordid past.
Judge Rosa Mroz granted bond for Milke earlier this month. Her supporters posted the $250,000 bond and she is currently living in a home also purchased by those who believe she was wrongfully convicted. The retrial was supposed to start by the end of this year, but things have changed. A December 6th court hearing will decide whether the detective, Armando Saldate, can plead the 5th. Saldate said through his attorney that he doesn’t wish to testify and will invoke his 5th Amendment right not to incriminate himself. Prosecutors want the judge to force him to testify. They say that the statute of limitations is up.
In its ruling, the 9th Circuit asked that the U.S. attorney for Arizona and the U.S. Department of Justice investigate whether Saldate violated Milke’s civil rights. Since Saldate is the only person to claim he heard her confess, if he does not testify, her alleged confession cannot be evidence. Milke has always denied confessing and maintains her innocence.
The federal appellate panel said, “There is ‘no evidence’ that Milke ‘voluntarily, knowingly, and intelligently’ waived her Miranda rights before allegedly confessing…”
Chief Judge Kozinski wrote in his concurring opinion, “No civilized system of justice should have to depend on such flimsy evidence…possibly tainted by dishonesty…to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors…should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct…
We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent…Could the people of Arizona feel confident in taking Milke’s life when the only thread on which her conviction hangs is the word of a policeman with a record of dishonesty and disrespect for the law?”
The court also noted that if Saldate took the stand and contradicted court rulings that he has a history of misconduct, including perjury, he would be committing perjury. Under the pressure, Saldate has refused to testify. Maricopa County Attorney Bill Montgomery said in one of his many news conferences that the U.S. Attorney’s Office said that the statute of limitations had run out on charges against Saldate and accused Milke’s defense team of intimidating his star witness. The news conference angered Judge Mroz who demanded to now why Vince Imbordino, the prosecutor assigned to Milke’s retrial, had not told her that there was a letter from the U.S. Attorney’s Office and why the media was told first?
“If the information is relevant enough for the press, it’s relevant enough for me. After all, we’re not trying this case in the media, we’re trying this case with me.”
The judge also took issue with Imbordino’s motion to explain why Saldate should have to testify, “It does basically nothing for me,” Mroz said, noting that the motion did not indicate “why…I should not allow him to invoke the Fifth.” She requested, again, that the prosecution file briefs on why case law says that he should be compelled. After the prosecution’s news fiasco, the judge made it clear she doesn’t like the case being tried through the media and said that attorneys should talk less to the media about the case. She threatened a gag order.
“Both sides should act professional and refrain from making comments because eventually we are going to have to empanel a jury and it is going to be awfully hard to do that if it is all aired out in public,” said Judge Mroz.
“Certainly we don’t want to try it in the press either but the county attorney continues to make press releases every week, forcing us to try to respond to some of the false statements and representations they have been making,” said Milke’s attorney, Mike Kimerer.
If Saldate decides not to invoke his 5th Amendment right or the judge does compel him to testify, on January 13 – 15, 2014 will be hearings on whether or not the alleged confession is admissible.