Milke attorneys claim retrial is double jeopardyPosted: Updated:
PHOENIX (AP) -- Retrying a woman released from death row after an appeals court overturned her conviction in her son's 1989 killing would amount to double jeopardy, her attorneys wrote in a motion this week.
Debra Milke was released Sept. 6 on bond. She was convicted in 1990 based on charges that she had two men take her 4-year-old son, Christopher, into the desert outside Phoenix and shoot him in the back of the head.
The 9th U.S. Circuit Court of Appeals overturned Milke's conviction in March. The panel cited the prosecution's failure to turn over evidence that deprived her attorneys of the chance to question the credibility of the state's key witness - a detective who told jurors she confessed.
The court also found that Milke had not waived her right to have an attorney present during her interrogation by then-Phoenix police Detective Armando Saldate Jr.
Milke's defense attorneys say that because her conviction was overturned, at least in part, because of the prosecution's failure to turn over evidence of Saldate's checkered past, a retrial violates her Fifth Amendment right against being tried twice for the same offense.
"Saldate's credibility was central at Milke's 1990 trial, and the state's failure to disclose impeachment evidence of his misconduct was a clearly improper method used to convict," defense attorneys wrote in the motion.
In its ruling overturning Milke's conviction, the appeals court accused Saldate of numerous instances of previous misconduct, including several in which judges threw out confessions or indictments because Saldate lied under oath and others in which cases were tossed out or confessions excluded because the detective violated the suspect's constitutional rights.
Maricopa County Attorney Bill Montgomery has previously dismissed the appeals court's findings as a "wild-goose chase" and insists it got the allegations against Saldate wrong. He called the court's findings "patently false," referring to them as "grandiose mischaracterizations."
Montgomery's office declined comment Friday.
Milke's attorneys say that had Saldate's record been revealed to jurors at her original trial, it "very likely could have changed the outcome of this case and kept Ms. Milke from serving 23 years in prison."
The two men convicted in the killing of Milke's son did not testify at her trial and remain on death row.
Saldate has not returned telephone messages from The Associated Press. His attorney previously told the judge that his client plans to assert his Fifth Amendment right against self-incrimination and refuse to testify at Milke's retrial.
A Dec. 6 hearing has been set during which Judge Rosa Mroz plans to hear arguments from attorneys and Saldate before determining whether to allow the former detective to assert his right against self-incrimination.
Mroz made it clear that if Saldate doesn't take the stand at Milke's retrial, the purported confession, which was crucial to her original conviction, can't be used.
For now, Milke's retrial is set for Feb. 2, 2015.