Despite the fact that both the state of Arizona and federal authorities have declined to press any charges against Detective Armando Saldate, he still does not want to testify at the retrial of Debra Milke. Saldate, whose truthfulness has become an issue in the retrial, was lambasted by the 9th U.S. Circuit Court of Appeals for his history of misconduct along with prosecutors for hiding this evidence from defense attorneys and jurors in the original trial in 1990. Milke’s conviction was almost solely based on the word of Detective Saldate, who claimed she confessed to him. There is no independent evidence of her confession, only Saldate’s word, so his credibility as a witness was one of the most important questions of the trial, yet, defense attorneys were not allowed to broach the subject and jurors were not allowed to deliberate it.
Now that Saldate’s lurid past, including lying under oath and violating constitutional rights, has been exposed, the case against Milke, more specifically, the truthfulness of Saldate’s testimony is more questionable.
Debra Milke was accused of having two men shoot her 4-year-old son in the desert outside Phoenix. She was sentenced to die. She has always maintained her innocence and denies confessing. After spending 24 years on death row, she was released to await retrial. The appeals court cited the prosecution’s failure to turn over evidence thus depriving her attorneys the chance to question the credibility of the state’s key witness who claimed the defendant admitted guilt. They also found that Milke had not waived her Miranda rights when Saldate interrogated her. A retrial is set for 2015.
Prosecutors have consistently assured Saldate that they would stand behind him on the case and have even dismissed the appeals court’s findings as “grandiose mischaracterizations.” Now, the U.S. Justice Department’s Civil Rights Division has reviewed the case and concluded, “…the evidence does not indicate a prosecutable violation of the applicable federal criminal civil rights statutes.” Maricopa County Attorney Bill Montgomery has been trying to persuade Saldate to take the stand in the retrial and tell the jury that Milke confessed to him because the judge has made it clear that if he does not testify to that, the alleged confession cannot be shown to the jury. Saldate is currently still asserting his 5th Amendment right. The two men convicted of killing Milke’s son remain on death row and did not testify at her original trial.
Saldate’s lawyer, Larry Debus, filed a motion earlier this month saying that prosecutors were merely “trying to save a murder prosecution” with little regard for what happens to his client. A hearing held in the case on Friday was to decide whether Saldate indeed has a reasonable fear of future prosecution. Saldate’s attorney told the judge that,
“He should not be placed in [this] situation…we have a reasonable belief that he could be subject to prosecution.”
Saldate did not have a witness at the time of the alleged confession and he did not record his interrogation. If he doesn’t testify there is little to no evidence that Milke participated or ordered the murder of her son. In the original trial, jurors were left with Saldate’s word vs. Milke’s word. At the time jurors thought Milke’s credibility was questionable because she was charged with the murder of a child and Saldate’s word was unchallenged because his record of misconduct was not released.
Saldate’s attorney told the judge that the Justice Department’s findings are not a “grant of immunity’ and that since it is based upon Milke’s case only, Saldate could be 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, which according to the appeals court could be perjury, but he would also be cross-examined by Milke’s defense attorneys about misconduct in other cases, “It scares me and it scares Mr. Saldate.”
Prosecutors want to force him to testify and told the judge in Friday’s hearing, “The detective has been vilified by the media and by the 9th Circuit. 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,” but there is “no basis for you to permit him to take the Fifth,” said prosecutor Vince Imbordino.
Milke’s attorney, Michael Kimerer, said if Saldate does not testify, then the defense would motion for a dismissal based upon lack of evidence, but if he does testify then they would impeach him. A ruling is expected this week.