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Updated Dec 10, 2013 - 6:03 pm

Feds decline civil rights charges in Debra Milke case

PHOENIX -- A former Arizona detective under fire for wrongdoing and whose testimony was the crux of a conviction against a woman recently released from death row won't face federal charges himself, authorities said Tuesday.

Debra Milke was accused of having two men shoot her 4-year-old son in the desert outside Phoenix in 1989. She was found guilty in 1990.

She spent 24 years on death row before the 9th U.S. Circuit Court of Appeals overturned her conviction in March. The panel cited the prosecution's failure to turn over evidence, saying that deprived her attorneys the chance to question the credibility of the state's key witness- a detective who told jurors she confessed.

The appeals court lambasted prosecutors for not revealing to Milke's lawyers during her original trial that former Phoenix police Detective Armando Saldate committed misconduct in previous cases, including lying under oath and violating suspects' rights.

Saldate did not record his interrogation of Milke, so jurors were left with his word alone that she confessed. Milke has maintained her innocence and denied she ever told Saldate she had any part in the killing.

A retrial is set for 2015 after her release on bond in September, but since the appeals court's allegations against Saldate, he is now trying to assert his Fifth Amendment right against self-incrimination and not testify again.

While county prosecutors had assured Saldate he would not face state charges based on the appeals court's assertions, the ruling was sent to the U.S. Justice Department's Civil Rights Division for review.

In a statement emailed to The Associated Press on Tuesday, the Justice Department said investigators ``reviewed this matter and concluded that the evidence does not indicate a prosecutable violation of the applicable federal criminal civil rights statutes.''

Maricopa County Attorney Bill Montgomery has dismissed the appeals court's findings of misconduct by Saldate as ``grandiose mischaracterizations.''

Montgomery has been trying to persuade Saldate to testify again at Milke's retrial, since the judge made it clear that if he doesn't, the purported confession can't be used, and there is very little other evidence linking her to the crime.

The two men convicted in the killing did not testify at her trial and remain on death row.

Montgomery's office declined comment Tuesday on the Justice Department's decision. Saldate has not returned telephone messages from the AP. His lawyer, Larry Debus, also did not return a telephone message.

In a motion filed earlier this month, Debus noted prosecutors were merely ``trying to save a murder prosecution'' with little regard for what happens to his client, citing the then-outstanding probe being conducted by the Justice Department as reasonable fear for Saldate wanting to assert his Fifth Amendment right.

A hearing in the case is set for Friday, during which a judge will determine whether Saldate indeed has a reasonable fear of future prosecution should he testify again.

Milke's attorney, Michael Kimerer, said if Saldate is allowed to assert his Fifth Amendment right, defense lawyers would likely seek a dismissal of the case based on lack of evidence.

If Saldate does testify, Kimmerer said he would use the appeals courts' assertions of previous misconduct to impeach his credibility on the witness stand.

Experts say either way, the state's case against Milke is coming unraveled.

``If the judge orders him to testify, he's wide open to impeachment and it will be up to the jury to decide'' if he is telling the truth, said Phoenix School of Law professor Stephen Gerst, a former Maricopa County Superior Court judge.

If Saldate is allowed to assert his Fifth Amendment right, Gerst added, Montgomery ``might just fold up his cards and say, `You know, judge, because of your order, I can't present my case. You just gutted it.''

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