Detective won't testify in AZ child death retrial - FOX13 News, WHBQ FOX 13

Debra Milke case: Judge rules detective can't be forced to testify in retrial

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Debra Milke Debra Milke
PHOENIX (KSAZ) -

A judge made a crucial ruling that could sink the murder case against a woman who spent 24 years on death row.

She ruled that prosecutors cannot force a former Phoenix Police detective to testify against Debra Milke after he took the fifth to avoid getting on the witness stand.

It's the worst possible crime you can imagine: A little 4-year-old boy was told he was going to see Santa Claus.  Instead, two men brought him out to the desert and shot him in the head -- killing him.

Those two men, James Styers and Roger Scott, are on death row for the crime.  So was the boy's mother, Debra Milke, but she is now out of prison after a federal appeals court threw out her conviction.

The federal court tossed Milke's conviction because of what it described as misconduct by the man who claims to have taken her confession in 1989 -- former Phoenix Police detective Armando Saldate.

He failed to tape record the confession, there were no witnesses, he threw out his notes and Saldate is accused of lying under oath in other criminal cases.

There was no other evidence against Milke, so she's out on bond.

Maricopa County Attorney Bill Montgomery wants to retry her, but the judge ruled he won't be able to put Saldate back on the stand because he took the fifth to avoid exposing himself to possible perjury charges.

What's next for prosecutors?

"They could appeal that decision to the Court of Appeals to see if the trial judge's decision is going to stand and that is going to make its way up the appellate ladder in due course," said Arizona State University's Sandra Day O'Connor College of Law Professor Sigmund Popko.

If the appeals court upholds the trial judge, the heart of the prosecution case is gone.

If prosecutors have to give up on the prospect of retrying Milke for murder, what will the judgment of history be about the conduct of Detective Saldate?

"Why he put himself in this situation where twenty-some-odd years later, he is facing this is just absolutely ridiculous," said Popko.

Prosecutors had no comment about the judge's ruling.

Milke's defense attorney told me he is hopeful prosecutors will drop the case, but expects they will keep trying to retry her.

Meanwhile, Milke is at an undisclosed location in Maricopa County.

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