The defense attorney of Debra Milke, a woman who has served 23 years in prison for the death of her son and was released from death row last year, claims that retrying Milke in court because of the prosecution’s withholding of evidence in the initial trial would violate her Fifth Amendment rights.
The 9th U.S. Circuit Court of Appeals overturned Milke’s case when it was found that the state did not turn over evidence of misconduct by their key witness, Armando Saldate Jr., in the emotionally-charged 1990 trial. The evidence would have allowed the defense to question the witness’s credibility. 
Saldate, a Phoenix police detective at the time, told jurors that Debra Milke confessed to the 1989 killing of her son when he questioned her, which was a key piece of evidence in the case. After Milke’s conviction, the court found that Milke never waived her right to have an attorney present in the interrogation.
The court accused Saldate of multiple occurrences of misconduct and eradicated many of his confessions in the case and other cases because he lied under oath and violated Milke and other defendants’ constitutional rights.
The overturned case now faces a new problem: the defense claims that retrying Debra Milke in court would be “double jeopardy”, violating her Fifth Amendment right of not being tried twice for the same offense.
Saldate is attempting to refuse to testify at Milke’s retrial by asserting his Fifth Amendment right against self-incrimination. In December, a judge sided with Saldate, although prosecutors are currently challenging the ruling.
Why would Saldate choose to plead the fifth?
If Saldate changes his testimony now from what he said in the original trial, he could face criminal charges for violating Milke’s rights. If he maintains the same testimony, he could be pursued for perjury charges based on the appellate court’s evaluation that his testimony may not have been credible – including a concurring opinion by Justice Kozinski indicating he believed the confession probably had never taken place.
Until further notice, Milke’s retrial is set for February 2, 2015.
