Case tossed vs. woman held 22 years in son's death

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Case tossed vs. woman held 22 years in son's death
FILE - These undated combo images provided by the Arizona Department of Corrections shows Debra Jean Milke, convicted for plotting the murder of her 4-year-old son, Christopher, in December 1989. Lawyers for Milke, an Arizona woman who spent more than two decades on death row before having her conviction overturned want a judge to bar a retrial in her son's 1989 killing on grounds that it amounts to double jeopardy. (AP Photo/The Arizona Republic, Arizona Department of Corrections, file)
Debra Jean Milke, left, sits next to one of her attorneys during a hearing as she awaits a retrial in the 1989 shooting death of her 4-year-old son, Christopher, at Maricopa County Superior Court on Thursday, Aug. 1, 2013, in Phoenix. A recent federal appeals court ruling threw out her conviction and death sentence, after a jury convicted her in 1990 in the killing of her son. (AP Photo/Ross D. Franklin, Pool)
**ADVANCE FOR SUNDAY, OCT. 18** Debra Jean Milke, who has been on Arizona's death row for nearly 20 years for plotting her 4-year-old son's murder, is seen in this undated photo taken from the Arizona Department of Corrections Web site. Milke could get a new trial, and even her freedom, because the police detective skipped one of the most basic steps when officers interview suspects _ getting them to sign a "Miranda waiver" giving up their right to remain silent. (AP Photo/Arizona Department of Corrections)
Arizona Mark Milke, foreground, sits in the courtroom, as his former wife, Debra Jean Milke, top background, listens as a judge speaks during a hearing while she awaits a retrial in the 1989 shooting death of their 4-year-old son, Christopher, at Maricopa County Superior Court in Phoenix on Thursday, Aug. 1, 2013. A recent federal appeals court ruling threw out her conviction and death sentence, after a jury convicted her in 1990 in the killing of her son. (AP Photo/Ross D. Franklin, Pool)
FILE - In this Aug. 1, 2013 file pool photo, Debra Jean Milke listens to a judge during a hearing as she awaits a retrial in the 1989 shooting death of her 4-year-old son, Christopher, at Maricopa County Superior Court in Phoenix. Arguments set for Wednesday, April 9, 2014 before the state Court of Appeals could determine the outcome of the case against Milke, whose 1990 conviction in the killing of her young son was overturned after she had spent more than two decades on death row. (AP Photo/Ross D. Franklin, Pool, File)
Maricopa County Attorney Bill Montgomery speaks during a news conference regarding the status of the State of Arizona v. Debra Jean Milke murder retrial, the 9th Circuit Court of Appeals decision to overturn her conviction, and one day after it was disclosed that now-retired Phoenix police detective Armando Saldate Jr. plans to invoke his Fifth Amendment right to not testify in a retrial, on Friday, Sept. 13, 2013, in Phoenix. (AP Photo/Ross D. Franklin)
FILE - In this Aug. 1, 2013, file photo, Debra Jean Milke, convicted in the 1989 shooting death of her 4-year-old son for an insurance payout, arrives for a hearing at Maricopa County Superior Court in Phoenix. Milke, who spent more than two decades on death row, was released on bond on Friday, Sept. 6, 2013, with a judge saying there's no direct evidence linking her to her son's death other than a purported confession to a detective. The state Court of Appeals ruled Thursday, April 17, 2014 that former Phoenix Police Department detective Armando Saldate Jr. will be forced to testify at the Milke retrial after he asserted his right against self-incrimination and had been refusing the take the stand again. (AP Photo/Ross D. Franklin, Pool, File)
Debra Jean Milke, left, speaks with one of her attorneys during a hearing as awaits a retrial in the 1989 shooting death of her 4-year-old son, Christopher, at Maricopa County Superior Court in Phoenix on Thursday, Aug. 1, 2013. A recent federal appeals court ruling threw out her conviction and death sentence, after a jury convicted her in 1990 in the killing of her son. (AP Photo/Ross D. Franklin, Pool)
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PHOENIX (AP) - A state appeals court has ordered the dismissal of murder charges against a woman who spent 22 years on Arizona's death row for the killing of her 4-year-old son.

The Arizona Court of Appeals on Thursday leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke's trial about a detective with a long history of misconduct and lying. The court called prosecutors' actions "a severe stain on the Arizona justice system."

A three-judge panel of the appeals court said it agreed with Milke's argument that a retrial would amount to double jeopardy.

The failure to disclose the evidence "calls into question the integrity of the system and was highly prejudicial to Milke," the court wrote. "In these circumstances - which will hopefully remain unique in the history of Arizona law - the most potent constitutional remedy is required."

The court said the charges against Milke in the 1989 death of her son Christopher can't be refiled, but prosecutors could appeal Thursday's ruling to the state Supreme Court.

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 near Phoenix by two men and shot in the back of the head.

Authorities say Milke's motive was that she didn't want the child anymore and didn't want him to live with his father.

She was convicted in 1990 and sentenced to death. The case rested largely on her purported confession to Phoenix police Detective Armando Saldate, which he did not record.

Milke, 50, was on death row for two decades, and the Arizona Supreme Court had gone so far as to issue a death warrant for Milke in 1997. The execution was delayed because she had yet to exhaust federal appeals.

The appeals court said Thursday it wasn't expressing an opinion on Milke's guilt or innocence, though it heavily criticized authorities for staking much of their case on a detective with credibility problems.

A federal appeals court threw out Milke's first-degree murder conviction in March 2013, saying prosecutors knew about a history of misconduct by the detective but failed to disclose it. Maricopa County prosecutors were preparing for a retrial.

Lori Voepel, Milke's appellate attorney, was ecstatic at Thursday's victory.

Milke has been free on bail since September 2013 as she awaited retrial.

"This is really a sock in the gut - it's a cheap shot," said Arizona Milke, Christopher's father and Debra Milke's ex-husband. "She shouldn't walk free, because she's guilty."

Maricopa County Attorney Bill Montgomery, whose office is handling the case, said he plans to ask the Arizona Supreme Court to overturn Thursday's ruling.

Montgomery said the accusations of misconduct happened well before he took over as the county's top prosecutor and would not happen today, citing safeguards such as having detectives record interviews with suspects.

Montgomery also said he would not be pursuing the case if he believed the evidence could not lead to a conviction in Christopher's killing.

"He should not be forgotten in all of this. Justice and due process for Christopher is a right that he has, too," Montgomery said. "And it's the job of prosecutors, unfortunately in situations like this, where we have to be the voice of the voiceless."

Milke has maintained her innocence and denied she ever confessed to the killing. The two men who led her child to his death in the desert were convicted of murder but refused to testify against Milke.

That left jurors with Saldate's word alone that she told him about her involvement. Saldate has since retired, and The Associated Press has made repeated efforts to reach him for comment.

In its ruling overturning Milke's conviction, the 9th U.S. Circuit Court of Appeals cited numerous instances in which Saldate committed misconduct in previous cases, including lying under oath and violating suspects' rights. The federal appeals court also asked the Justice Department to investigate whether Saldate had committed civil rights violations.

Prosecutors insist Milke is guilty, but their ability to try her again was limited by the fact that Saldate said he wouldn't testify. He fears potential federal charges based on the 9th Circuit's accusations of misconduct.

In December, Superior Court Judge Rosa Mroz granted Saldate's request to assert his Fifth Amendment right, allowing him to refuse to take the stand.

The state Court of Appeals overturned that ruling in April and said Saldate would be forced to testify at the retrial. Both county and federal authorities said they don't intend to seek charges against the detective based on any of the accusations leveled by the federal appeals court.

Milke, whose mother was a German who married a U.S. Air Force military policeman in Berlin in the 1960s, has drawn strong support from citizens of that nation and Switzerland, neither of which has the death penalty.

Milke's mother died in Germany this year after a battle with cancer. A week before the August death, a judge had denied Milke's request for permission to travel to Germany to visit her mother.

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