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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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