The prosecution trying to convict a woman who spent more than 20 years on death row in Arizona has been dealt a crushing blow.  A judge granted former detective Armando Saldate’s request to assert his Fifth Amendment right against self-incrimination.  The discredited detective will not be forced to testify at Milke’s retrial as the prosecution had hoped.

An alleged confession that Debra Milke gave Saldate is the largest piece of evidence in the prosecution’s scant case and is at the center of the controversy.  The judge previously informed prosecutors that without the testimony of Saldate, who is the only corroborating evidence that the confession even happened, they won’t be able to enter Milke’s disputed confession as evidence.

Milke was accused in 1990 of having two men shoot her 4-year-old son in the Pheonix desert in 1989.  She was convicted of first-degree murder and spent nearly 24 years on death row before the 9th Circuit Court of Appeals made a disturbing discovery.  They overturned her conviction citing the prosecution’s failure to turn over crucial witness credibility evidence, which deprived Milke’s attorneys of the chance to impeach the state’s key witness, Saldate.  Milke has always denied the confession and maintained her innocence.  Saldate did not record the confession, have anyone witness it, nor have a written confession signed.

“The court finds that Saldate has demonstrated a reasonable apprehension of danger that, if compelled to answer, he would face criminal charges,” Maricopa County Superior Court Judge Rosa Mroz wrote, while also noting she did “not fully agree” with all of the appeals court’s allegations.

The appeals court cited several instances in which Saldate committed misconduct in previous cases, including lying under oath and violating the Constitutional rights of suspects.  The court also found that Milke had not waived her Miranda rights before being interrogated.  At the original trial, jurors were left with Milke’s word vs. Saldate’s word and without the knowledge of Saldate’s past, jurors were never allowed to weigh it in their deliberations to determine his credibility.  The two men convicted in the murder of her son never testified at her trial and remain on death row.

Prosecutors assured Saldate they planned no charges against him and the Justice Department’s Civil Rights Division said they didn’t find enough evidence to pursue federal charges.  However, Larry Debus, Saldate’s attorney, told the judge last week that the findings were based solely on Milke’s case and leaves Saldate open for prosecution on the other instances of misconduct cited by the appeals court.

Judge Mroz agreed, explaining that if Saldate testified now, defense attorneys would question him about the others cases, “Depending on how Saldate answers those questions, his testimony could be used against him to support any potential federal criminal civil right charges.”

The judge also noted that in Milke’s case, “each time Saldate testifies against her could be deemed a re-violation of her civil rights.”

In addition to the Milke case, the appeals court found 8 other cases of misconduct in Saldate’s past that was suppressed by the prosecution.  For example, in 1982, Saldate interrogated a suspect who was hospitalized and so incoherent, he didn’t know his name.  The trial court threw out his statements.  And in 1989, Saldate interrogated a suspect who invoked his Miranda rights.

Judge Mroz noted that if Saldate answers questions under oath related to some of the eight cases, “he may be subject to prosecution under a theory of continuing conspiracy to violat[e]…civil rights” since some of the defendants are still in prison.

The prosecution declined to comment to the media on the status of their case.  Saldate’s attorney declined to comment on the new ruling.  Milke’s attorney, Michael Kimerer, has previously stated his intent to seek a dismissal due to lack of evidence if Saldate is allowed to plead the 5th.

A retrial is scheduled for 2015.

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