Debra Milke Still Has Shot at Bail, Despite Bill Montgomery's Statements

Milke in an old jailhouse pic...
Milke in an old jailhouse pic...
Jon Gipe

At his Wednesday press conference where he doubled-down on his support of deceitful ex-Phoenix detective Armando Saldate, Maricopa County Attorney Bill Montgomery insisted that Debra Milke, the person Saldate put on death row, would remain nonbondable pending trial.

"I want to underscore, she's not entitled to bail under the Arizona constitution," Monty told reporters. "So folks asserting she's going to be released pending trial, that's not going to happen."

See, Milke's back to being "the accused," since the Ninth U.S. Circuit Court of Appeals threw out her conviction on March 14, and since Monty has decided to retry the 49 year-old.

Article II, Section 22 of the Arizona Constitution makes capital offenses nonbondable, if "the proof is evident or the presumption great" as to the accused's guilt.

See Also: Bill Montgomery Doubles Down on Armando Saldate, Debra Milke Denied Bail Pending Trial (For Now) Bill Montgomery Wants to Retry Debra Milke: Lying Ex-Cop Armando Saldate Monty's Major Handicap

"She is charged with a capital crime, a jury returned an indictment, so we're well beyond the proof evident presumption great level," maintained Monty.

But isn't that up to a judge? Couldn't a judge decide to grant Milke bail, after 22 years on death row?

"In violation of the Arizona Constitution, I guess a judge could do that," said Montgomery.

Initially, that assertion seemed validated late Wednesday by a minute entry from Superior Court Judge Joseph Welty, setting a status hearing before Judge Rosa Mroz for July 17, and ordering that Milke be held without bond. (Milke will also be transported from Perryville Prison, where she lives now, to county jail.)

But that ain't the final word, according to Milke's defense attorney Michael Kimerer, who got back to me this morning via email.

"There was no bail hearing," wrote Kimerer. "Judge Welty, the presiding Judge entered his order assigning the case to Judge Mroz, set a status conference, and ordered ex parte to hold [Milke] without bond.

"This was expected because the presumption in Arizona is that you are nonbondable in a capital case. However, that presumption can be challenged if we can show the `proof is not evident or the presumption not great' that she committed the crime. (See A.R.S. 13-3962). We will be doing that and Judge Mroz will probably set what is called a `Simpson Hearing' to make that determination."

 

A Simpson hearing is named after a 2004 Arizona Appeals Court case Simpson v. Owens, where the court held that "due process requires that a full and adversarial evidentiary hearing be conducted."

The accused can be kept behind bars while that hearing is pending, but the court stated that the hearing "should take place as soon as is practicable to ensure that the accused is afforded due process and to maintain the presumption of innocence."

Kimerer believes he can make the case for Milke to be set loose on bond..

"I don't believe, based upon the Ninth Circuit's ruling, that the proof is evident or the presumption great at this point," Kimerer told me Wednesday when we spoke, "because all they have is this statement by Saldate claiming she confessed.

"The Ninth Circuit just shredded [Saldate's] credibility, so I would argue that the proof's not evident, [nor] the presumption great, unless Bill Montgomery has something else out there. And I've been trying to say, what other evidence does he have that would help, other than to make a deal with one of the two shooters?"

In fact, Montgomery left open the possibility of doing just that during his presser. That is, bargaining with the two men directly responsible for the homicide of Milke's son Christopher, both of whom are on death row, in order to secure a new murder conviction and death sentence for Milke.

Is there any new evidence, the county attorney was asked at his press conference?

"Nothing that I can reveal," said Monty slyly.

Translation: I've got bupkis save for Saldate.

The disgraced detective and the local legal system that sheltered and used him were taken to the woodshed in the Ninth's decision.

The jurists berated Saldate for his "mendacity and disregard for constitutional rights," offering numerous examples that were suppressed by the prosecutor and the local courts during Milke's trial.

As a result, Saldate's claim that Milke confessed to him -- a claim that relies on Saldate's word alone -- is worthless.

And if the court concurs with that simple logic, Milke might taste freedom, sooner rather than later.


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