Debra Milke’s attorneys have filed for dismissal of her charges for lack of evidence.  The case against an Arizona mother whose 1990 conviction in her son’s killing was overturned by an appeals court should be dismissed based on lack of evidence because the key witness against her refuses to testify at her retrial, defense attorneys wrote in a motion.  Debra Milke was found guilty of first-degree murder in 1990 for having two men kill her 4-year-old son, Christopher.  She was sentenced to death.  After more than 20 years on death row, an appeals court overturned her conviction.  Milke was then released on bond awaiting her 2015 retrial.  In their motion, defense attorneys argue that the case should be dismissed with prejudice (meaning that she cannot be retried) because the detective who told jurors she confessed to him has now asserted his 5th Amendment right against self-incrimination out of fear of federal civil rights charges.

The case against Milke largely rested on the disputed confession.  Detective Armando Saldate did not document the confession in any way, so jurors were left with his word alone.  Milke has always maintained her innocence and has always denied confessing.  The two men convicted of killing her son did not testify at her trial and remain on death row.  Milke’s attorneys argue that Saldate, being the only link to the alleged confession, refuses to testify, “effectively gutt[ing]” the state’s case.

“Ms. Milke, who has already served 23 years on death row and whose conviction was reversed nearly one year ago on the basis of `flimsy evidence’ and the testimony of a seriously discredited (and now unavailable) detective, has the right to move forward with her life,” defense lawyers wrote.

The 9th Circuit Court of Appeals overturned Debra Milke’s conviction citing the prosecution’s failure to reveal evidence to defense attorneys that could have changed the detective’s credibility in the jurors’ minds and that Saldate infringed on Milke’s Miranda rights.  The appeals court cited numerous instances in which Saldate committed misconduct in previous cases, including lying under oath and violating suspects’ rights, details that were not provided to Milke’s defense lawyers or the jury during her original trial.

Judge Rosa Mroz previously denied the prosecution’s request to force Saldate to testify, prosecutors plan to appeal that ruling.  Defense lawyers argue that even if Saldate testifies, the appeals court ruling “casts serious doubts on the validity of the…alleged confession.”

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