Late last month, Debra Milke argued that her second trial was a violation of double jeopardy protections before a 3 judge appellate panel.  Milke, 50, spent more than 20 years on Arizona’s death row after being convicted of planning the death of her 4-year-old son, Christopher.  Prosecutors convinced an Arizona jury in 1990 that Milke hired two men to take her son into the desert and kill him.  The two men that Milke allegedly hired have never implicated her and did not testify at her original trial.  They remain on death row.  Milke’s conviction was overturned by a federal appeals court last year because prosecutors withheld misconduct by detective Armando Saldate, the key witness in the prosecution’s case.  Saldate’s credibility was central to the trial because he alleged that Milke confessed.  There was no evidence to back up his allegation and Milke denies confessing.

Milke made bail with the help of her supporters and is now free awaiting retrial.  Milke’s attorneys hope to convince the 3-judge panel that a second murder trial is double jeopardy because of the misconduct.  The argument failed to convince a separate judge in January.

“The remedy is dismissal; it is to dismiss the charges,” her lawyer, Lori Voepel, said.

Prosecutors disagree.  Prosecutors have been successful in their pursuit to retry Milke.  They were able to convince an appellate court that the trial judge was incorrect in allowing the detective to plead the 5th.  Detective Saldate is still their star witness and the new trial judge has made it clear to prosecutors that without the confession they have no case.  The appeals court ruled that Saldate must testify.  Saldate said that he fears perjury charges.  Milke’s defense says that they plan to make clear to the jury the extent of Saldate’s misconduct and unreliability.  Federal and state agencies have said they will not charge Saldate with anything.

The judges are expected to rule in the next few weeks.

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