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Back in 1990, Debra Milke was convicted of killing her son and sentenced to death. After languishing in prison for over two decades, an appeals court reversed her conviction. Some will read about cases such as this one, where an appeals court reverses a conviction, and suggest that the result was based upon a “technicality.” While there may certainly be cases where a reversal is based upon factors other than the issue of whether the defendant actually committed the act in question, this is not one of those cases.
In any criminal trial, perhaps the most damning piece of evidence that can be introduced by a prosecutor is a confession out of the defendant’s own mouth. That’s what happened at Milke’s original trial. Proof of the confession came, however, not from a video of the defendant, or from a signed statement, but rather from the testimony of a cop – in this case, Phoenix Detective Armando Saldate, who told the jury that Milke admitted committing the crime when he interviewed her. The crucial question in the case was whether they should believe Saldate. And as in many such credibility cases, the jury apparently sided with the cops.
The problem was, and is, that Saldate is a liar. In fact, he has been cited by an appeals court as having a “long history of lying under oath.” His history, however, was not revealed to the defense. As indicated in our blog of August 2013 (Police Misconduct and Debra Milke Retrial), this caused the appeals court to reverse the conviction. The issue currently under discussion in the case is the status of the state’s attempt to retry the case. This month a judge ruled that the retrial is not barred on the grounds of double jeopardy.
Double jeopardy is a concept contained in the United States Constitution. It states that no one shall be subject to being “twice put in jeopardy of life or limb” for the same offense. In its simplest terms, the clause prevents the state (or the federal government) from trying a person for a second time after the person has been acquitted of a crime. There is an exception to this rule, however, where the defendant seeks a retrial (or challenges a verdict on appeal). And that’s what Milke did in this case. But, as you might expect, there is an exception to the exception, where the defendant’s action is seeking a new trial is forced by prosecutorial misconduct.
In Arizona, the rule regarding prosecutorial misconduct is applied only if, among other things, the misconduct was intentional. And that is the issue that formed the basis for the court’s ruling allowing the new trial to go forward.
The retrial is now scheduled for 2015, but we expect to hear more on the double jeopardy issue prior to the commencement of the new trial.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028
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