PHOENIX - A decision by a court to throw out the conviction of a woman who spent 22 years on death row in the execution-style murder of her 4-year-old son has created a problem for prosecutors as they decide how to move forward.
Prosecutors insist that they plan to retry Debra Jean Milke in the 1989 death of her son, Christopher, but their case will carry considerable baggage because the conviction was tainted by a detective with a long history of misconduct, including four other criminal cases in which an appeals court concluded he lied under oath. As a result, a confession obtained by the detective was called into question.
At a hearing Wednesday, Maricopa County Superior Court Judge Rosa Mroz set a Sept. 30 retrial for Milke. The judge also scheduled an Aug. 1 hearing to consider an upcoming request by Milke to be released on bond and an Aug. 30 hearing to consider an expected request by defense attorneys to have the detective's claim that Milke confessed to the crime thrown out.
Milke said nothing to the judge during the hearing. Arizona Milke, ex-husband of Debra Milke and father of Christopher, was in court during Wednesday's hearing.
Authorities say Milke dressed her son in his favorite outfit and told him he was going to see Santa Claus at a mall in December 1989. He was then taken into the desert by two men and shot in the back of the head.
James Lynn Styers, Milke's roommate, and his friend Roger Mark Scott are on death row for carrying out the killing, while Milke had been convicted of ordering Christopher's death. Authorities say Milke didn't want the child anymore and didn't want him to live with his father. Scott said in his confession that he was promised $5,000 from a life-insurance policy Milke had taken out on Christopher.
A future hearing before the new trial is expected to focus on the credibility of now-retired Phoenix Detective Armando Saldate Jr.
It's unknown whether prosecutors will call him as a witness to repeat his claim that Milke, now 49, had a part in her son's death. It's also unknown whether the two men convicted and sentenced to death will testify after declining to do so at her first trial.
Michael Kimerer, one of Milke's attorneys, said he will seek bond for his client and ask a county court to throw out the detective's claim. He also said he would reject any possible attempt by prosecutors to cut a plea deal to end the case.
"Debra has always taken the position that she will not accept a plea that involves admitting she had anything to do with the death of her son," said Kimerer said.
Milke has disputed that she confessed and has maintained that she is innocent. Prosecutors are again seeking the death penalty against her and contend Milke isn't entitled to release while she awaits trial.
The 9th U.S. Circuit Court of Appeals said in March that prosecutors knew about but failed to disclose Saldate's history of misconduct, including multiple court rulings in other cases when Saldate lied under oath or violated suspects' Miranda rights during interrogations. Saldate was suspended for five days for accepting sexual favors from a female motorist and lying to his supervisors about it, the appeals court said.
It said there was a reasonable probability that providing jurors with information about Saldate's past would have led to a different result.
Alex Kozinski, the appeals court's chief judge, said prosecutors relied on an illegally obtained confession that probably never occurred.