After 23 years on death row, Debra Milke will have to wait at least another month to learn if she is eligible for bail, pending retrial for the 1989 murder of her four year-old son Christopher.
Thursday afternoon, Maricopa County Superior Court Judge Rosa Mroz set August 30 as the new date for a bond hearing, stating that so much had transpired since Milke's 1990 conviction, a so-called "Simpson hearing" was necessary.
"I don't believe the court has a choice," Mroz said at one point, disagreeing with the prosecution's argument that Milke's indictment and denial of bail of more than two decades ago should stand.
Rather, Mroz concurred with the defense that whether Milke is granted bail hinges on the testimony of lying ex-Phoenix cop Armando Saldate, the only witness to Milke's "confession," which was not recorded or properly documented.
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"It centers on Detective Saldate," Mroz stated. "We need a Simpson hearing....Saldate's credibility is at issue."
In March, the Ninth U.S. Circuit Court of Appeals overturned Milke's murder conviction, ordering that she be released or retried, and berating county prosecutors for not revealing to the defense Saldate's extensive record of dishonesty and abuse of authority.
Mroz observed that the possibility of bail for Milke will depend on "whether a confession was actually made," and "whether Milke invoked her right to counsel."
First-degree murder is a nonbondable offense in Arizona, as long as the "proof is evident or the presumption great" that the defendant committed the crime in question.
Kimerer argues that the proof is not evident, nor the presumption great regarding Milke's guilt, given that Saldate's credibility has been eviscerated by the Ninth Circuit's scathing decision.
Additionally, Kimerer has moved to disqualify the county attorney's office from being the prosecuting agency in the Milke case, claiming that the MCAO is conflicted, as the Ninth sent the case to the U.S. Attorney's Office and the U.S. Department of Justice's civil rights division, requesting an investigation into all parties involved in Milke's original prosecution, including the MCAO.
Moreover, the MCAO may be attempting to mitigate its potential civil liability by retrying Milke, as Milke is likely to sue for wrongful prosecution.
Mroz scheduled oral arguments on Kimerer's motion to disqualify for August 23, instructing deputy county attorney Vince Imbordino to address certain questions in a future filing, such as what his involvement has been in the case to date.
Throughout the hearing, Milke sat quietly next to her lawyers, occasionally whispering into the ear of one.
Other than the handcuffs and black and white county stripes she wore, Milke's dark-frame glasses and her gray shoulder-length hair made her look like any middle-aged woman you might see in a supermarket, and quickly forget.
Kimerer complained that in the Maricopa County jail, Milke has not had access to a phone so she can call collect to her cancer-stricken mother in Germany. The judge told Kimerer to take it up with the prosecutor's office.
Milke was then escorted out by a sheriff's deputy, back to Sheriff Joe Arpaio's jail, at least until the next hearing.
