Judge Rosa Mroz denied a motion to dismiss murder charges against Debra Milke, who spent more than 20 years on death row before her conviction was overturned.  Milke was convicted of first-degree murder in 1990 and sentenced to death in connection with two men who shot her 4-year-old son, Christopher.  Judge Mroz disagreed with defense attorneys that a retrial would be double jeopardy.

An appeals court in March overturned Milke’s conviction citing the prosecution’s failure to reveal evidence that defense attorneys could have used to call into question the prosecution’s star witness, Detective Armando Saldate.  Saldate told the jury that Milke confessed.  Her alleged confession is a highly contested piece of evidence.  It was never recorded nor witnessed by anyone and Milke denies she ever confessed.  The appeals court also found that Saldate violated Milke’s Miranda rights.

In their motion for dismissal, Milke’s attorneys said that amounted to egregious prosecutorial misconduct and should bar a retrial under her Fifth Amendment right against being tried twice for the same crime.  Prosecutors countered that the appeals court didn’t find that they purposefully deceived the defense or knowingly withheld relevant evidence, the threshold for the double jeopardy clause to apply to a retrial.

In her ruling, Mroz wrote that she didn’t find the prosecutor’s actions in Milke’s original trial “constituted active concealment…The court cannot conclude that the prosecutor intentionally engaged in conduct which he knew to be improper, or that he did so with indifference, if not a specific intent, to prejudice the defendant.”

Concerns about Saldate’s honesty arose during Milke’s appeals.  In its ruling to grant Milke a new trial, the 9th U.S. Circuit cited numerous instances in which Saldate committed misconduct including lying under oath and violating suspects’ rights, details Milke’s lawyers and the jury never learned.  The case against Milke rested on the alleged confession.  The two men convicted of killing Milke’s son remain on death row and never testified in her original trial.

Saldate is now refusing to testify at Milke’s retrial for fear of facing charges based upon the 9th Circuit’s findings.  Judge Mroz allowed Saldate to assert his Fifth Amendment right against self-incrimination.  Prosecutors plan to appeal the decision to a higher court in the hopes they can make Saldate testify.  Without Saldate, the only link to the alleged confession, it is unlikely it will be allowed into evidence.  The judge has noted previously that the “only direct evidence linking the defendant to the murder is the defendant’s alleged confession.”

If Saldate is ultimately allowed to assert his Fifth Amendment right, defense attorneys said they will seek a dismissal of the charges based upon lack of evidence.

Milke’s retrial is set for 2015.

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