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Updated Nov 1, 2013 - 4:15 pm

Debra Milke attorneys claim retrial is double jeopardy

PHOENIX — Retrying a woman released from death row after an appeals court
overturned her conviction in her son’s 1989 killing would amount to double
jeopardy, her attorneys wrote in a motion this week.

Debra Milke was released Sept. 6 on bond. She was convicted in 1990 based on
charges that she had two men take her 4-year-old son, Christopher, into the
desert outside Phoenix and shoot him in the back of the head.

The 9th U.S. Circuit Court of Appeals overturned Milke’s conviction in March.
The panel cited the prosecution’s failure to turn over evidence that deprived
her attorneys of the chance to question the credibility of the state’s key
witness _ a detective who told jurors she confessed.

The court also found that Milke had not waived her right to have an attorney
present during her interrogation by then-Phoenix police Detective Armando
Saldate Jr.

Milke’s defense attorneys say that because her conviction was overturned, at
least in part, because of the prosecution’s failure to turn over evidence of
Saldate’s checkered past, a retrial violates her Fifth Amendment right against
being tried twice for the same offense.

“Saldate’s credibility was central at Milke’s 1990 trial, and the state’s
failure to disclose impeachment evidence of his misconduct was a clearly
improper method used to convict,” defense attorneys wrote in the motion.

In its ruling overturning Milke’s conviction, the appeals court accused Saldate
of numerous instances of previous misconduct, including several in which judges
threw out confessions or indictments because Saldate lied under oath and others
in which cases were tossed out or confessions excluded because the detective
violated the suspect’s constitutional rights.

Maricopa County Attorney Bill Montgomery has previously dismissed the appeals
court’s findings as a “wild-goose chase” and insists it got the allegations
against Saldate wrong. He called the court’s findings “patently false,”
referring to them as “grandiose mischaracterizations.”

Montgomery’s office declined comment Friday.

Milke’s attorneys say that had Saldate’s record been revealed to jurors at her
original trial, it “very likely could have changed the outcome of this case and
kept Ms. Milke from serving 23 years in prison.”

The two men convicted in the killing of Milke’s son did not testify at her
trial and remain on death row.

Saldate has not returned telephone messages from The Associated Press. His
attorney previously told the judge that his client plans to assert his Fifth
Amendment right against self-incrimination and refuse to testify at Milke’s

A Dec. 6 hearing has been set during which Judge Rosa Mroz plans to hear
arguments from attorneys and Saldate before determining whether to allow the
former detective to assert his right against self-incrimination.

Mroz made it clear that if Saldate doesn’t take the stand at Milke’s retrial,
the purported confession, which was crucial to her original conviction, can’t be

For now, Milke’s retrial is set for Feb. 2, 2015.


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