Friday, lawyers for Debra Milke, who spent more than 20 years on Arizona’s death row before her conviction was overturned, asked the judge to bar a retrial on the grounds that it is double jeopardy.  Milke’s lawyers argued that a retrial violates the Fifth Amendment because of double jeopardy and prosecutorial misconduct.

“The conduct is so egregious. Egregious is really an understatement,” defense lawyer Michael Kimerer told the judge.

Milke has been out on bond since September awaiting retrial.  She was convicted in a highly publicized trial in 1990 on charges that she had two men kill her 4-year-old son, Christopher.  The 9th U.S. Circuit Court of Appeals overturned her conviction last year because prosecutors failed to turn over evidence of the lead detective’s history of misconduct which deprived her of the chance to question his credibility in front of a jury and she was interrogated even though she did not wave her Miranda rights. 

The detective told the jury that she confessed to the crime.  Milke has always maintained her innocence and denies confessing.  Questions about retired Phoenix detective Armando Saldate’s testimony arose during Milke’s appeals.  The 9th Circuit cited numerous cases of misconduct including Saldate lying under oath and violating suspects’ rights.  These details were never provided to Milke’s defense.  The case against Milke rested almost solely on her alleged confession, which Saldate did not record, have anyone else witness, or have her sign a written version.  Jurors were left with his word against Milke’s.

The two men convicted of taking her son out into the desert and shooting him remain on death row and did not testify at her trial.

Recently, Saldate was allowed to assert his Fifth Amendment right not to testify at Milke’s retrial.

In the appeals’ court’s ruling, the judges chastised Saldate and prosecutors:

“No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty,” Chief Judge Alex Kozinski wrote.

The retrial is currently set for 2015.

“The 9th Circuit said the state failed in its constitutional obligation to produce the material showing Saldate’s false and misleading statements in court and before grand juries,” Kimerer said, “Debra Milke gave up 23 years of her life based on testimony from a dishonest cop, and there’s really no other evidence to support this conviction.”

Prosecutors told the judge that the appeals court did not find that the state intentionally deceived the defense or knowingly withheld relevant evidence,

“There is absolutely no basis under the facts or the law for this court to dismiss this case on the basis of double jeopardy,” prosecutor Vince Imbordino said.

Judge Rose Mroz plans to rule on this issue at a later date.

Prosecutors, who want Saldate to be forced to testify, are currently appealing the judge’s ruling that allows Saldate to assert his Fifth Amendment right for fear of possible civil rights charges in connection with the 9th Circuits’ findings.  If Mroz’s ruling is upheld, it is unlikely that Milke’s alleged confession will be admitted into evidence.  The defense has expressed their wish to move for dismissal of the case based upon lack of evidence if the prosecution’s appeal is denied.

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