Detective Criticized by 9th Cir. Won't Testify in Milke Retrial

She spent more than two decades on death row before the Ninth Circuit set her free because of questions about the investigating detective's credibility. Now, thanks to those questions, the case against her is unraveling.

Deborah Milke was convicted in 1991 of having her 4-year-old son murdered. But decades later, Milke was set free after the Ninth Circuit granted habeas, citing multiple findings by lower courts of Detective Hector Saldate's misconduct in other cases.

Now, after the trial court today allowed Saldate to invoke his right against self-incrimination, the prosecution is scrambling to gather enough evidence to retry the case, 20 years later.

The Alleged Facts

Prosecutors allege that in 1989, Milke told her 4-year-old son Christopher that he was headed to the mall to meet Santa Claus. Instead, Milke's roommate James Lynn Styers and his friend, Roger Mark Scott, took the child to the desert and shot him in the back of the head three times. Scott confessed and implicated Milke to Det. Saldate, who flew via helicopter to where Milke was staying, took her into a small room, and in 30 minutes, convinced her to waive her Miranda rights, confess, and to provide details of her life history and abusive relationship with Christopher's father.

But despite his supervisor's orders, Saldate failed to record the interrogation, destroyed his notes, and forgot to obtain a written Miranda waiver.

Ninth Speaks on Saldate

In granting habeas relief, the court took pains to highlight Saldate's long list of transgressions, including multiple overturned convictions for lying on the stand and a prior suspension for "taking liberties" with a female motorist.

The prosecutors knew about it and didn't disclose it. Wasn't Kozinski just lamenting a Brady epidemic?

Speaking of Kozinski, he was at his finest in the opinion, writing a separate, concurring bench-slap of the police department, the prosecutors' office, and every court involved, highlighted by this passage:

"No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone's life or liberty. The Phoenix Police Department and Saldate's supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney's Office, which continued to prosecute Saldate's cases without bothering to disclose his pattern of misconduct."

Plead the Fifth

In an order released earlier today, the judge assigned to the retrial ruled that Det. Saldate, quite obviously, has a reasonable fear of prosecution for perjury if he takes the stand. According to the Ninth Circuit's opinion, Milke's confession would only be admissible if the impeachment evidence (the eight or more instances of misconduct) were admitted as well.

If Saldate admits the misconduct, then he has no credibility. If he denies it, he faces perjury charges.

"The court finds that Saldate has demonstrated a reasonable apprehension of danger that, if compelled to answer, he would face criminal charges based on his past testimony and/or present disclosures, and that the Fifth Amendment affords protection," Judge Rosa Mroz wrote.

The Ninth Circuit described the case as a "swearing match" between Milke and Saldate, and without her confession, and his testimony, a weak case is beginning to look all but impossible.

Related Resources:

• Detective in Milke case can plead 5th, judge rules (The Republic)
• Not Reading the Case File Is Ineffective Assistance (FindLaw's U.S. Ninth Circuit Blog)
• OC Gang Injunction Invalidated Over End-Run Around Due Process (FindLaw's U.S. Ninth Circuit Blog)