Debra Milke murder charges dismissed; state vows appeal
Milke, 49, spent 23 years on Arizona's death row for the murder of her 4-year-old son in 1989. But her conviction and death sentence were thrown out
Debra Milke murder charges dismissed; state vows appeal Milke, 49, spent 23 years on Arizona's death row for the murder of her 4-year-old son in 1989. But her conviction and death sentence were thrown out Check out this story on azcentral.com: http://azc.cc/1DiDmZM
Michael Kiefer, The Republic | azcentral.com Published 2:34 p.m. MT Dec. 11, 2014 | Updated 10:56 p.m. MT Dec. 11, 2014
The Court of Appeals ordered all charges dismissed because of "egregious prosecutorial misconduct."
Debra Milke(Photo: The Republic)
Court cites "egregious prosecutorial misconduct"
Milke spent 23 years on Arizona's death row for murder of her son
Montgomery: "Trying to get justice for Christopher Milke"
Citing "egregious prosecutorial misconduct," the Arizona Court of Appeals on Thursday ordered a Maricopa County Superior Court judge to dismiss murder charges against Debra Milke with prejudice, meaning they cannot be brought again.
Milke's attorneys said they were thrilled.
County Attorney Bill Montgomery vowed to take the decision up to the Arizona Supreme Court.
"This office today bears the burden for trying to get justice for Christopher Milke," he said.
Milke, 49, spent 23 years on Arizona's death row for the murder of her 4-year-old son, Christopher, in 1989. But her conviction and death sentence were thrown out in March 2013 by a federal appeals court because of the original prosecutor's failure to disclose evidence that might have helped Milke's attorneys challenge the then-Phoenix detective who claimed she had confessed to him.
The confession was not recorded, there were no witnesses to confirm it took place, and Milke denies confessing. But defense attorneys in the 1990 trial were unable to obtain the detective's personnel record, which detailed his misconduct in other cases. The 9th U.S. Circuit Court of Appeals regarded that as a "Brady violation" and ordered Milke be released or retried.
Montgomery decided to take her back to trial.
ROBERTS: Milke walks free because police/prosecutor cut corners
MONTINI: Milke should not be retried; judges got it right
But Milke's attorneys, Michael Kimerer and Lori Voepel, filed a motion stating the case should be thrown out altogether because the prosecutor's conduct was egregious and constituted double jeopardy, meaning Milke would be unfairly tried twice for the same crime.
Superior Court Judge Rosa Mroz, who was assigned as the judge in Milke's retrial, denied the motion. She wrote in a January 2014 ruling that the usual remedy for prosecutorial misconduct is a retrial, except in the most serious cases. Milke's case was not one of the latter, she wrote.
Mroz, a former deputy Maricopa County attorney, wrote that she "does not have any evidence that the prosecutor's actions constituted active concealment" and that she did not feel the original prosecutor, Noel Levy, who is now retired, acted in bad faith. Retrying the case was sufficient remedy, Mroz wrote.
Kimerer and Voepel took the case to the Arizona Court of Appeals, resulting in Thursday's ruling.
The Appeals Court did not say that Milke is innocent.
"Our analysis is based entirely on whether double jeopardy applies to bar Milke's retrial in this case, and we express no opinion regarding her actual guilt or innocent," the judges wrote.
But the three-judge panel took a swipe at prosecutors.
"We are unable to conclude that the long course of ... violations in this case are anything but a severe stain on the Arizona justice system," they wrote.
Kimerer and Voepel felt they could not comment on the ruling because it is up to Mroz to actually dismiss the charges, and she has imposed a gag order on the case.
But Kimerer said Milke was thrilled.
"To say we're happy is an understatement," he said.
It was the second trip to the Appeals Court in the case.
Armando Saldate, the Phoenix detective, tried to invoke the Fifth Amendment and not testify in the case. Mroz ruled in his favor, given the strong language of the 9th Circuit Court ruling that sent Milke's case back to Superior Court.
But the Appeals Court overturned Mroz's decision, saying that a person could not invoke the Fifth Amendment out of fear of being prosecuted for perjury.
That issue is now moot.
Prosecutors and police believe that in December 1989, Debra Milke recruited her roommate, a would-be suitor named James Styers, and his friend Roger Scott to kill her 4-year-old son, Christopher, to collect an insurance policy on the boy.
The boy thought he was going to the mall to see Santa Claus, but instead, he was taken to the desert and shot in the head.
Scott confessed. He pointed to Styers as the triggerman and led police to the boy's body.
Scott was sent to death row, and because he has exhausted his appeals, he is on the short list for execution.
Styers was also sentenced to death.
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