Lawyers fight over double jeopardy in son killing retrial

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By Mike Gertzman By Mike Gertzman
By Mike Gertzman By Mike Gertzman
By Mike Gertzman By Mike Gertzman
By Mike Gertzman By Mike Gertzman
By Mike Gertzman By Mike Gertzman

PHOENIX -- Lawyers are expected to argue over whether an Arizona mother who is out of prison after spending more than 20 years on death row can be retried.

Debra Milke was convicted in the 1989 death of her 4-year-old son. Prosecutors said she hired two men to take him into the desert to kill him, telling him that he was going to see Santa Claus.

A federal appeals court overturned that conviction in March 2013. She was released on bond several months later pending a new trial

The most compelling evidence against Milke was the testimony of a now-retired detective who claimed that she confessed. He did not, however, record the alleged confession and his credibility has since been called into question. Armando Saldate's history of misconduct and lying on the witness stand came to light years after Milke's trial.

Milke said she never confessed and has maintained her innocence.

There has been much legal wrangling over her retrial, which is scheduled to take place next year.

Tuesday's proceeding centers on double jeopardy, which says a defendant cannot be retried on the same or similar charges once there is a conviction or acquittal in the case.

Her defense team will argue that jeopardy attached after her 1990 conviction, meaning she cannot be retried.

Milke's lawyers lost the double jeopardy argument with one judge in January.

The lawyers said "egregious misconduct" on the part of prosecutors -- failing to reveal evidence questioning Saldate's credibility -- in the original trial should preclude a retrial.

Prosecutors said the appeals court that overturned Milk's conviction found the original prosecution team did not purposefully deceive the defense or knowingly hold back evidence.

Judge Rosa Mroz sided with the prosecution and refused to drop the charges against Milke. Tuesday's arguments are an appeal of that decision.

Once both sides wrap up their arguments, the judge will have 10 days to make a decision.

Even as the dispute over the applicability of double jeopardy continues, both sides are preparing for trial.

The most recent development came in April when the prosecution won an appeal that will force Saldate to testify in Milke's retrial should it go forward. Saldate had asserted his Fifth Amendment right to avoid self-incrimination. An initial ruling allowed the former detective to refuse to take the stand in a new trial. The state Court of Appeals overturned that decision.

Without that win for the prosecution -- Saldate's testimony is essential to its case -- the defense probably would have made a motion to dismiss the case for lack of evidence.

Link: More Debra Milke stories