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 is set for a hearing Friday as he asks a judge to allow him to assert his Fifth Amendment right against self-incrimination and not testify at her retrial.
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 crucial evidence, saying that deprived her attorneys of the chance to question the credibility of the state's key witness — the detective who told jurors she confessed.
The appeals court cited numerous instances in which former Phoenix police Detective Armando Saldate 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.
Prosecutors say the appeals court findings are inaccurate and that Saldate did nothing wrong as they try to convince him to testify again. If he doesn't take the stand, the purported confession cannot be used at her retrial, 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.
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.
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 will hear arguments Friday and 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 he does testify, Kimmerer said he would use the appeals courts' assertions of previous misconduct to impeach Saldate's credibility on the witness stand.
Saldate has not returned telephone messages. His lawyer also hasn't returned telephone messages.