PHOENIX -- The case against a woman who spent two decades on death row in the murder of her 4-year-old son was dealt a crushing blow Wednesday when a judge ruled that a discredited detective won't be forced to testify at her retrial.
A judge granted former detective Armando Saldate's request to assert his Fifth Amendment right against self-incrimination and not testify again. A purported confession that Debra Milke gave Saldate represented the crux of the case. Without his testimony, prosecutors can't use the confession at her retrial and have little other evidence against Milke.
She was accused of having two men shoot her son in the desert outside Phoenix in 1989. 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 crucial evidence, saying that deprived her attorneys of the chance to question the credibility of the state's key witness, Saldate, who told jurors she confessed.
Prosecutors are likely to appeal the judge's ruling.
The appeals court cited numerous instances in which the former Phoenix police detective committed misconduct in previous cases, including lying under oath and violating suspects' rights. The court also found that Milke had not waived her right to have an attorney present for Saldate's interrogation of her, something he contended she did.
Prosecutors said the appeals court findings are inaccurate and that Saldate did nothing wrong as they try to persuade him to testify again.
The two men convicted in the killing did not testify at her trial and remain on death row.
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.
County prosecutors have assured Saldate they plan no charges against him for any wrongdoing. The U.S. Justice Department's Civil Rights Division announced this week that it had reviewed the appeals court's allegations and found there wasn't enough evidence to pursue federal charges.
Maricopa Superior Court Judge Rosa Mroz heard arguments Friday on whether Saldate has a reasonable fear of future prosecution should he testify again.
Saldate's attorney, Larry Debus, argued that the Justice Department's decision "isn't a grant of immunity" and, regardless, it's based solely on the Milke case, leaving Saldate open to prosecution in other cases where the appeals court found he committed misconduct.
If Saldate took the stand again, he would be forced to not only reiterate his previous testimony in the Milke case, a move that according to the appeals court could be considered perjury, but he would also be subject to cross-examination about the other cases in which misconduct was cited.
Milke's attorney, Michael Kimerer, said previously if Saldate was allowed to assert his Fifth Amendment right, defense lawyers would likely seek a dismissal of the case based on lack of evidence. If Saldate had testified, Kimmerer said he would have used the appeals courts' assertions of previous misconduct to impeach Saldate's credibility on the witness stand.
Saldate has declined comment. His attorney did not return a phone call Wednesday seeking reaction to the decision. Prosecutors also declined comment.
A status conference has been set for Jan. 17.
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