FILE - This combination of undated file photos shows Debra Jean Milke, convicted for plotting the murder of her 4-year-old son, Christopher, in December 1989. Nearly 24 years later, the case is returning to a courtroom after an appeals court has ruled that holes in the case against her entitle her to a new trial. (AP Photo/The Arizona Republic, Arizona Department of Corrections)
Saturday, September 21, 2013 3:49 pm
Cop's credibility key to murder suspect's retrial
By BRIAN SKOLOFF and ADAM GELLERAssociated Press
Investigators quickly zeroed in on the mother, Debra Jean Milke, later condemned by her own family for treating Christopher with contempt. She was arrested, convicted and sentenced to death.
But nearly 24 years after the crime, the case returns to a courtroom Monday - with the verdict and the detective who cemented it effectively on trial.
A day after the killing, then-Phoenix police Detective Armando Saldate Jr. sat down alone with Milke to question her. A half-hour later, the young mother was arrested for plotting Christopher's murder based on a detailed confession, one whose veracity she and her defenders have refuted ever since.
But Saldate, a 21-year veteran of the force, proved a most convincing witness. Listening to him, jurors looked past the fact that he had ignored a directive to record the interview, failed to secure a witness to observe it and destroyed his notes. And prosecutors did not share with them, or Milke's own lawyer, a personnel record that included previous allegations of misconduct.
It came down to his hard-boiled version of the truth over hers, based on words uttered in an interrogation room turned "into a black box, leaving no objectively verifiable proof as to what happened inside," an appellate court opined in a scathing March decision setting aside Milke's conviction.
"No civilized system of justice should have to depend on such flimsy evidence," the court said.
This month, Milke was released on $250,000 bond as prosecutors prepare to bring her to trial once more. But holes in the case feed doubts that linger among both those certain of her guilt and those convinced of her innocence. Confronting those questions cannot bring Christopher back, but it is forcing reexamination of the system sworn to do him justice.
After all, the detective's testimony put Debbie Milke away. Now, will troubling questions about his police work and the way it was presented by prosecutors ensure her freedom?
When Milke came home to Phoenix in the fall of 1988, she was a 25-year-old single mom searching for a job and a place to live, and trying to keep her distance from an ex-husband she despised. The two were, nevertheless, bound together by a son.
Christopher was a rambunctious kid who liked cartoons and tearing around on a Big Wheel. In fading photos, the boy flashes a winning smile. But he also showed a hyperactive streak, throwing fits those close to Milke said got under her skin. In that way, he echoed his father, Mark, an alcoholic, back then, who served time for driving under the influence with a suspended license.
"He looked like my clone," recalls Christopher's father, who has since changed his name to Arizona Milke and remains convinced of his ex-wife's guilt. "Debbie often called him Mark by mistake, and he'd get this Kool-Aid grin on his face and say `I'm not Mark. I'm Chris. Mark's my daddy.'"
After the couple split, Milke and Christopher stayed for a time in Colorado with family friend Dorothy Markwell, who remembers Milke as a "young mom trying to make it with her child."
"She wasn't a bad mom. She was a mom still learning," Markwell says, recalling how Milke read to Christopher each night and how she panicked when the boy wandered away and ended up at a neighbor's home.
But Markwell confirms her testimony at Milke's trial: "Yeah, she would say `This kid looks so much like Mark I can't stand it!'" she says. "Does that mean she was wanting him murdered? No!"
Markwell heard little from Milke after she and Christopher left. But back in Phoenix, Milke found ready support. She frequently left Christopher with her sister, Sandy, her ex-husband's parents or her father, a former Air Force military policeman. Soon she found a secretarial job at an insurance agency.
And she met James Styers, a Vietnam veteran who sublet her and Chris a room in his apartment.
Then came the morning of Dec. 2, 1989. According to Milke, Christopher asked his mother if he could go with Styers to a shopping mall to see Santa Claus. On the way, Styers picked up a friend, Roger Scott.
What authorities say happened next is based on interviews Saldate and others conducted with Scott and Milke.
Instead of heading to the mall, Scott told police, the two men drove to the edge of Phoenix, telling Christopher they were going to look for snakes. There, amid rocks and creosote bushes, Styers shot Christopher, then drove to the mall and reported him missing.
Scott, court records show, told police that the killing was Milke's idea - and that all three had planned to share in a $5,000 life insurance policy she held on the child.
The day after Christopher's disappearance, Saldate and Milke came face-to-face, and soon the mother was placed under arrest along with her alleged cohorts.
On the witness stand at Milke's 1990 trial, Saldate spoke with the assurance of a man who'd spent many hours in courtrooms. Confronted, the detective testified, Milke opened up to him.
"`Look, I just didn't want him to grow up like his father. I'm not a crazy person. I'm not an animal. I just didn't want him to grow up like that,'" Saldate testified she told him.
"She said that she then decided that it would be best for Christopher Milke to die."
When it was her turn to take the stand, Milke denied uttering those words. She also claimed she never waived her right to have an attorney present, and that Saldate badgered her into talking. While Saldate's recounting was correct in content - except for anything that could be considered a confession - it was wrong in context, she told jurors.
"I said, `I just didn't want Christopher to grow up like his dad.' Is there anything wrong with that?" Milke testified.
Jurors, though, placed their faith in the detective's account, despite learning he had failed to record the interrogation.
But there was more: Milke's sister, Sandy, testified, describing a woman who was never fit to be a mother. Before sentencing, she reiterated those claims, telling court officials that Milke once taped a pacifier to Christopher's mouth to keep him from spitting it out and sometimes threw him across the room.
The jury also learned that Milke had dated a co-worker, Ernie Sweat. Prosecutors described a budding relationship with long-term potential - until Christopher got in the way, which, they said, played into the motive. Sweat, in an interview with The Associated Press, said the notion of Chris as a burden is "absolutely not true."
Milke, meanwhile, often appeared cold and detached on the witness stand, which her supporters blamed on antidepressants she was taking.
Brent Whiting, who covered the trial as a reporter for The Arizona Republic, remembers one moment when the prosecutor produced Christopher's tiny cowboy boots. Milke's face, Whiting recalled, soured with disgust.
"What jurors saw was a very cold heart," Whiting said. "I thought: `It's all over.'"
In closing arguments, prosecutor Noel Levy returned repeatedly to the only thing that tied Milke directly to the killing: Saldate's testimony about the interrogation.
"What is the keystone of the state's case, really?" the prosecutor told jurors. "It's the confession of Debra Milke."
At trial, Milke's lawyers had sought to learn more about Detective Saldate, but requests for the entirety of his personnel file were rebuffed by prosecutors, the Phoenix Police Department and the trial judge. Not until Milke was already convicted did a far fuller portrait of the policeman - and his past problems - begin to take shape.
Among them, according to court documents:
- In 1973, Saldate was suspended for five days after he stopped a female motorist and "took liberties" with her before agreeing to meet her later for sex. He then lied to investigators about the incident, admitting to it only after a polygraph test. In a disciplinary write-up, signed by the police chief and the city manager, Saldate was told "your image of honesty, competency, and overall reliability must be questioned."
- In 1982, he interrogated a suspect who was strapped to a hospital bed and so incoherent he did not know his own name. At a later court hearing, those statements were suppressed.
- In 1989, when the defendant in a killing invoked his right to remain silent, Saldate pushed on with an interrogation, telling the man he didn't want an admission but only his side of the story. An appeals court later found that had violated the defendant's rights and suppressed some of the statements.
Other allegations cited in the 9th U.S. Circuit Court of Appeals opinion setting aside Milke's conviction include lying or omitting details in testimony before grand juries.
The police department gave "free rein to a lawless cop to misbehave ... undermining the integrity of the system of justice they were sworn to uphold," the court's chief judge, Alex Kozinski, wrote in an opinion that also castigated prosecutors.
The appeals panel sent its opinion to federal authorities, asking them to investigate whether Saldate's conduct amounted to repeated civil rights violations. Last month, the U.S. attorney's office in Arizona said statutes of limitations had passed and it had no case against Saldate.
Saldate retired in 1990, and was later elected to a county constable post. He has since left that job and still resides in Phoenix. He did not return messages from the AP. His lawyer also has not returned telephone messages. The Phoenix Police Department declined comment, as did Levy.
Bill Montgomery, the chief county prosecutor now, dismisses the appeals court's findings as a "wild-goose chase" and insists it got the allegations against Saldate wrong. He called the court's findings "patently false," referring to them as "grandiose mischaracterizations."
As he prepares to retry Milke, Montgomery is also standing by Saldate's testimony about Milke's confession. Asked if he felt Saldate was an honest police officer, Montgomery said, "I believe he gave honest testimony" at Milke's trial.
But his ability to retry Milke hangs on whether a new jury will believe Saldate - and if he will even testify. The others charged in the case, Scott and Styers, never testified at Milke's trial. They were convicted of murder in separate trials and remain on death row.
Saldate's attorney said in court this month that he had advised his client to assert his Fifth Amendment right against self-incrimination. A new judge has made clear that if Saldate doesn't take the stand at her retrial, Milke's purported confession can't be used.
On Monday, attorneys on both sides return to court to discuss the case.
Without the confession, "there's really no case," Milke's attorney, Michael Kimerer, said. "When do you stop being vindictive and start doing justice? I think it's time for that."
But without a trial, how will doubts about both the defendant and the detective be put to rest? Even the judge who sentenced Milke to death says it is time to reopen the case.
"Personally, I'm glad that Debra Milke is alive and well, and that she is going to get a new trial," now-retired Maricopa County Superior Court Judge Cheryl Hendrix told the AP in an interview.
"Without a smoking gun, there's always doubt in the back of one's mind."
AP news researcher Rhonda Shafner contributed to this story. Geller, an AP national writer, reported from New York. He and Skoloff can be reached at features(at)ap.org or followed on Twitter at https://twitter.com/AdGeller or https://twitter.com/bskoloff