PHOENIX (AP) -- A retired detective shouldn't be forced to testify at the retrial of an Arizona mother who is charged with having her son killed in 1989 because he could face perjury or other charges himself after a federal court accused him of misconduct, the man's lawyer argued Wednesday before the state Court of Appeals.
"The message is simply this," attorney Treasure Van Dreumel told the three-judge panel. "If, under the law, it's possible to prosecute him, than that is sufficient for invocation of the Fifth Amendment."
Authorities say Debra Milke had two men shoot her 4-year-old son in the desert outside Phoenix. She was found guilty in 1990 and spent more than two decades on death row before a federal appeals court last year overturned her first-degree murder conviction, setting the stage for a 2015 retrial.
Milke has since been released on bond.
The original case against Milke rested largely on her purported confession, which now-retired Phoenix police Detective Armando Saldate did not record. That left jurors with his 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, in part, the prosecution's failure to reveal evidence that could have called Saldate's credibility into question.
The court cited numerous instances in which he 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 federal appeals court also asked the Justice Department to investigate whether Saldate had committed civil rights violations.
Saldate did not attend Wednesday's hearing and has not returned repeated phone calls from The Associated Press. He now claims he fears potential federal charges if he testifies again 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 at Milke's retrial.
Prosecutors are asking the state Court of Appeals to reverse that ruling and force him to testify again.
Without Saldate's testimony, Mroz has said, the purported confession would most likely not be allowed at Milke's retrial, effectively gutting the state's case.
Saldate has no reasonable fear of prosecution after both county and federal authorities informed him that they don't intend to seek charges based on any of the accusations leveled by the federal appeals court, Diane Meloche of the Maricopa County Attorney's Office told the appellate judges on Wednesday.
"In this case, we don't have to speculate on the possibility of harm from prosecution," Meloche said, noting that Saldate must have a reasonable fear of being charged in order to be allowed to assert his Fifth Amendment right.
There is no evidence to charge him with any crimes, she said.
"We can't prosecute," Meloche said.
However, Saldate's attorney argued there are no guarantees he wouldn't face charges in the future based on his testimony at the retrial.
If, as defense attorneys work to chip away at his credibility, Saldate testifies at the retrial and admits that he lied on the stand previously, as the federal appeals court contended, he could be charged with perjury, Van Dreumel said. If he denies having falsely testified in the past, he could also face perjury charges, she added.
"The question, with all due respect, is not whether some prosecutor wants to prosecute," Van Dreumel argued. "The question is whether he can be prosecuted."
The state Appeals Court did not immediately issue a ruling.
Milke's defense attorneys, meanwhile, are seeking 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."
Milke, whose mother was a German who married a U.S. Air Force military policeman in Berlin in the early 1960s, has drawn strong support from citizens of that nation and Switzerland, neither of which has the death penalty.
The two men convicted in the child's death did not testify against Milke and remain on death row.
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