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Updated Dec 11, 2014 - 4:08 pm

Court: Debra Milke will not be retried in son’s death

PHOENIX — In a scathing critique of Arizona’s criminal justice system, a
state appeals court on Thursday ordered the dismissal of murder charges against
a woman who spent 22 years on death row in her son’s killing.

The Arizona Court of Appeals said the charges against Debra Jean Milke in the
1989 death of her son Christopher can’t be refiled. A three-judge panel said it
agrees with Milke’s argument that a retrial would amount to double jeopardy.

The court held that prosecutors’ failure to turn over evidence that could have
helped Milke’s defense was egregious, calling the actions “a severe stain on
the Arizona justice system.”

“Nondisclosure of this magnitude calls into question the integrity of the
system and was highly prejudicial to Milke,” the court wrote. “In these
circumstances — which will hopefully remain unique in the history of Arizona law
— the most potent constitutional remedy is required.”

Authorities say Milke dressed her son in his favorite outfit and told him he
was going to see Santa Claus at a mall in December 1989. He was then taken into
the desert outside Phoenix by two men and shot in the back of the head.

The court said it wasn’t expressing an opinion on Milke’s guilt or innocence,
though it heavily criticized authorities for staking much of their case on a
detective with credibility problems.

A federal appeals court threw out Milke’s first-degree murder conviction in
March 2013, saying prosecutors knew about a history of misconduct by the
detective but failed to disclose it. Maricopa County prosecutors were preparing
for a retrial.

Milke’s appellate attorney, Lori Voepel, was ecstatic at the victory, which
prosecutors could appeal to the state Supreme Court.

“We’re all thrilled,” Voepel said. “We still have the gag order so we can’t
say much more than we’re all thrilled with the opinion.”

Milke has been free on bail since September 2013 as she awaited retrial.

A spokesman for Maricopa County Attorney Bill Montgomery had no immediate
comment.

“This is really a sock in the gut — it’s a cheap shot,” said Arizona Milke,
Christopher’s father and ex-husband of Debra Milke. “She shouldn’t walk free,
because she’s guilty.”

Milke was convicted in 1990. The original case rested largely on her purported
confession, which Phoenix police Detective Armando Saldate did not record. He
has since retired, and The Associated Press has made repeated efforts to reach
him for comment.

That left jurors with Saldate’s word alone that she told him about her
involvement. Milke has maintained her innocence and denied she ever confessed.

In its ruling overturning Milke’s 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. The
federal appeals court also asked the Justice Department to investigate whether
Saldate had committed civil rights violations.

Prosecutors insist Milke is guilty, but Saldate has claimed he fears potential
federal charges if he testifies at a retrial, based on the appeals court
accusations of misconduct.

In December, Superior Court Judge Rosa Mroz granted Saldate’s request to assert
his Fifth Amendment right, allowing him to refuse to take the stand.

The state Court of Appeals overturned that ruling in April and said Saldate
would be forced to testify at the retrial. Both county and federal authorities
said they don’t intend to seek charges against the detective based on any of the
accusations leveled by the federal appeals court.

Saldate’s attorney countered that authorities had offered no guarantees that he
wouldn’t face charges in the future based on his testimony, and an appeal to the
state Supreme Court was expected.

Judge Mroz had previously said that if Saldate didn’t testify again, the
purported confession likely couldn’t be used at her retrial.

Milke’s defense sought dismissal of the entire case against her, noting in a
previous motion that “the only direct evidence linking defendant to the crimes
is the defendant’s alleged confession to Saldate.”

The two men convicted in Christopher’s death did not testify against Milke and
remain on death row.

Milke, whose mother was a German who married a U.S. Air Force military
policeman in Berlin in the 1960s, has drawn strong support from citizens of that
nation and Switzerland, neither of which has the death penalty.

Milke’s mother died in Germany in August after a battle with cancer. A week
earlier, a judge had denied Milke’s request for permission to travel to Germany
to visit her sick mother.

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