Judge: Prosecutors will stay on Milke retrial

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by Catherine Holland

azfamily.com

Posted on August 27, 2013 at 9:23 AM

Updated Tuesday, Sep 3 at 9:54 PM

PHOENIX – The Superior Court of Arizona has denied Debra Milke’s request to disqualify the Maricopa County Attorney’s Office as the prosecutor in her retrial for murder.

Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in 1989. He was later shot to death by two men.

Milke was convicted and sentenced to death in 1990. An appeals court overturned that conviction in March, after finding that prosecutors hadn't turned over evidence of misconduct by a police detective. The detective testified at her trial that she confessed to him in a private interrogation room.

Milke, maintaining her innocence, claimed the Maricopa County Attorney’s Office is pursuing her retrial for political reasons and asked a judge to disqualify the office from the case. For its part, the Maricopa County Attorney’s Office said there are no political motives fueling its decision to retry Milke for her little boy’s death.

Judge Rosa Mroz of the Superior Court of Arizona, in an opinion issued Tuesday morning, sided with the Maricopa County Attorney’s Office and denied Milke’s request that it be prohibited from prosecuting the case due to conflict of interest.

"The case is complex not only because it is a capital case but also because it has been 23 years since the Defendant’s original trial such that witnesses may not be available and the evidence may have degraded," reads the opinion. "Complicating matters is the Ninth Circuit opinion, which declared the State’s key witness, Detective Saldate, as having lied on multiple occasions and violated various defendants’ constitutional rights. The Ninth Circuit opinion is critical of the actions of Detective Saldate, the Phoenix Police Department, the original prosecutor Noel Levy, and the Maricopa County Attorney’s Office."

Milke's attorneys pointed out that current Maricopa County Attorney Bill Montgomery and current prosecutor Vince Imbordino had worked with Levy and claimed that one of their goals in retying Milke was to vindicate him.

Mroz's opinion calls that "pure speculation."

"The actions of which the Ninth Circuit was critical occurred over 23 years ago. Much has changed in the ensuing 23+ years.

"The Court also believes that the public can distinguish between bad acts committed over 23 years ago by individuals who are no longer with MCAO or the Phoenix Police Department, and the current prosecutors," the five-page ruling continues. "The Court finds that any public suspicion that could exist if MCAO continues prosecuting this case does not outweigh the benefits of permitting MCAO to remain on this case.

"The Court also finds that the Defendant did not establish any prejudice to her or her case if MCAO continues to prosecute her case."

The Maricopa County Attorney's Office declined to comment on Tuesday's ruling.

"Given all that has gone on surrounding this case, we need to restrict our communication to the courtroom," public information officer Jerry Cobb wrote in an email to a 3TV executive producer.

Milke’s retrial, with the Maricopa County Attorney's Office prosecuting, is scheduled to begin on Sept. 30.

The Associated Press contributed to this story.

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