After nearly 24 years in custody, Debra Milke will step back into the real world, probably today, until the murder charge against her is settled one way or another.
But the prosecution has hurdles to overcome before taking Milke back to trial. A judge must decide whether a contested confession can be admitted into evidence. And the Phoenix detective who allegedly obtained the confession has to agree to testify.
Maricopa County Superior Court Judge Rosa Mroz ruled Thursday morning that Milke, 49, can be released on a secured bond of $250,000, pending her retrial.
Sheriff Joe Arpaio issued a statement Thursday afternoon saying that Milke would likely be released some time today, and that she was refusing all requests for interviews on the advice of her attorneys.
At a court hearing Aug. 30, Milke’s attorneys, Mike Kimerer and Lori Voepel, told the court that Milke’s supporters would be able to put up bond money and had provided a house for her to live in as the legal process plays out.
Milke has a strong following of people who believe she is innocent, especially in Europe, where she has family.
Kimerer said that Milke was stunned and ecstatic to learn she would be released, and that she broke down in tears.
“I’m so overwhelmed by this, I don’t know how to react to it,” Kimerer said she told him.
Milke’s ex-husband, Arizona Milke, the father of the murdered child, said, “She’s going to get something she’s wanted for a long time.”
The judge ordered that Milke post a secured bond, which requires that the entire amount be put up as assurance that the defendant does not abscond; or, if contracted through a bondsman, it would require putting up collateral one and a half times the amount of the bond, in addition to paying a fee. Milke must wear a monitoring device and adhere to a curfew.
Debra Milke and two accomplices, James Styers, the suspected shooter, and Roger Scott, were sent to Arizona death row for the December 1989 murder of Milke’s 4-year-old son, Christopher. They told the boy that they were taking him to see Santa Claus at the mall and instead took him to the desert and shot him in the head.
But in March, the 9th U.S. Circuit Court of Appeals threw out her conviction and death sentence, because the prosecution had failed to turn over evidence about the Phoenix police detective who claimed that Milke confessed.
Milke denied confessing; the detective, Armando Saldate, had not recorded the confession and there were no witnesses to confirm it took place.
Prosecutor Vince Imbordino asked the court to ignore the 9th Circuit decision. Mroz said she would not. Mroz noted that the withheld evidence “casts serious doubt on the validity of the defendant’s alleged confession.”
“The existing information does not make it ‘plain and clear’ … that the defendant committed the crimes,” Mroz wrote. “The court finds that the proof is not evident or presumption great that the defendant committed the crimes charged in the indictment.”
Whether the confession comes into evidence will be argued on Sept. 23. The court appointed attorney Larry Debus to represent Saldate in that hearing. Debus told The Arizona Republic that he has just begun evaluating the case and does not yet know what advice he will give to Saldate.
But Saldate is under great pressure in the case. The chief judge of the 9th Circuit asked the U.S. Attorney General’s Office to investigate the Milke case for civil-rights violations. The 9th Circuit ruling also noted that Saldate was found by courts to have lied in various court cases, and if his future testimony varies from those findings, he runs the risk of committing perjury.
If Saldate invokes his Fifth Amendment rights and refuses to answer questions, the confession probably would not be allowed.
When the case was first returned to Maricopa County for retrial, prosecutors were hopeful that Milke’s alleged accomplice, Scott, would testify against her. Scott confessed to taking part in the murder in 1989, but did not testify in Milke’s first trial. Last week, Imbordino stated in open court that Scott would probably not testify in the retrial either.
Without Saldate and without Scott, the prosecution has a weak case.
According to the 9th Circuit, Milke had to be taken to trial within 90 days of the completion of a U.S. District Court order transferring her to the jurisdiction of the Maricopa County Attorneys Office, which is Oct. 7. If Milke’s trial did not start by that date, the 9th Circuit said, she would have to be released from custody during her trial.
On Thursday, the Arizona Attorney General’s Office filed a motion in U.S. District Court on behalf of the Maricopa County attorney to have the trial deadline pushed back, a request that may have been rendered moot by Mroz’s ruling.