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Updated Jan 22, 2014 - 5:43 pm

Judge won’t dismiss charges in Debra Milke murder case

PHOENIX — A judge on Wednesday denied a motion to dismiss a murder charge
against an Arizona mother whose 1990 conviction in the killing of her 4-year-old
son was overturned by an appeals court, setting the stage for a retrial.

Judge Rosa Mroz discounted defense arguments that another trial would amount to
double jeopardy.

Debra Milke was found guilty of first-degree murder, among other charges, after
prosecutors said she had two men shoot her son in the head in the desert outside
Phoenix. After she spent more than two decades on death row, an appeals court
overturned the conviction in March.

The panel cited, in part, the prosecution’s failure to reveal evidence to
defense attorneys that could have called into question the credibility of the
state’s key witness _ a detective who told jurors that Milke had confessed.

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 offense.

Prosecutors countered that the appeals court did not find the state
intentionally deceived Milke’s attorneys or knowingly withheld evidence _ a
threshold that must be met for the double jeopardy clause to apply.

Judge Mroz heard the arguments last week.

In her ruling, Mroz said she did not 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,” Mroz wrote.

Prosecutors declined comment Wednesday. Defense attorneys didn’t immediately
respond to telephone messages and emails.

Concerns about now-retired Phoenix police Detective Armando Saldate’s honesty
arose during Milke’s efforts to get a new trial. In its ruling overturning her
conviction, the 9th U.S. Circuit Court of Appeals 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 during her trial.

The case against Milke rested largely on the purported confession, which
Saldate did not record, so jurors were left with his word alone that she told
him of her involvement in the killing. Milke has maintained her innocence and
denied she ever confessed. The two men convicted in the child’s death did not
testify against her and remain on death row.

Saldate is now refusing to testify at Milke’s retrial for fear of facing
federal civil rights charges based on the 9th Circuit’s accusations of his
previous misconduct.

In her ruling, Mroz also declined to reconsider her previous decision allowing
Saldate to assert his Fifth Amendment right against self-incrimination.

Prosecutors plan to appeal to a higher court, hoping to force his testimony.
Without him taking the stand, it is unlikely the purported confession could be
used at Milke’s retrial, now set for 2015.

The judge noted in her ruling 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 say they will likely seek dismissal of the charges based on lack of
evidence.

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