Should a retired detective be forced to testify at the retrial of Debra Milke, an Arizona woman accused of having two men kill her son in 1989?  Detective Armando Saldate’s attorney, Treasure Van Dreumel argued before the Arizona court of Appeals that he should be allowed to invoke his Fifth Amendment privileges because he could face perjury and other charges after a federal appeals court accused him in various cases, including Milke’s of misconduct.  He was accused of violating Miranda rights and lying under oath, among other accusations.

“The message is simply this, if under the law it’s possible to prosecute him, than that is sufficient for invocation of the Fifth Amendment,” his attorney told the three-judge panel in oral arguments Wednesday.

Authorities allege that Debra Milke had two men, both currently on death row, take her 4-year-old son, Christopher, into the desert outside of Phoenix and shoot him.  She was found guilty in a high-profile case in 1990 and spent more than 20 years on death row before an appeals court overturned her conviction and sentence.  Her retrial is set for 2015.  The original case against Milke rested on her alleged confession, which she denies ever making.  Retired Phoenix Detective Armando Saldate did not record the confession and no one else witnessed it, so jurors were left with his word vs. Milke’s.  Milke has always maintained her innocence.

Neither of the men who killed her son testified against her.  The 9th U.S. Circuit Court of Appeals, in overturning her conviction, cited, in part, the prosecution’s failure to reveal evidence against Saldate that could have called his credibility into question.  The court cited numerous incidents where he committed misconduct, details of which were never provided to Milke’s defense attorneys.  The federal appeals court requested that the Justice Department investigate Saldate for possible civil rights violations.

In December, Judge Rose Mroz, the presiding judge over Milke’s retrial, granted Saldate’s request not to testify in the case.  Prosecutors are asking the appeals court to reverse that ruling and compel him to testify.  Without Saldate’s testimony, the alleged confession will most likely be excluded as evidence.  This would effectively gut the state’s entire case.

Saldate does not have reasonable fear of prosecution because both county and federal authorities have declined to prosecute him based upon the accusations, leaving him able to testify in Milke’s retrial, Diane Meloche of the Maricopa County Attorney’s Office told the appellate judges.

“In this case, we don’t have to speculate on the possibility of harm…” Meloche said, noting that Saldate must have reasonable fear to be allowed to assert his Fifth Amendment right to remain silent.  Meloche insisted that there is no evidence against Saldate and that “we can’t prosecute [him].”

Saldate’s attorney rebutted that there are no guarantees in the future that he won’t be prosecuted for his testimony at the retrial.  If, as Milke’s defense erodes his credibility, Saldate testifies and admits he lied on the stand previously, as the 9th Circuit alleges, he could be charged with perjury.  If he denies having lied on the stand previously, he could also face perjury charges.

“The question, with all due respect, is not whether some prosecutor wants to prosecute [him].  The question is whether he can be…” Van Dreumel argued.

Milke’s defense attorneys, meanwhile, are seeking a dismissal of the charges against her based upon a lack of evidence, noting that “the only direct evidence linking [the] defendant to the crimes is the defendant’s alleged confession.”

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