Procedural SNAFU Sets Murderer Free, For Now
Thursday, March 27th by Robert LoblawHarvest v. Castro, 05-16879 (9th Cir., March 27, 2008)
When courts decide that a constitutional error requires a new trial for a convicted criminal, they typically issue a conditional writ of habeas corpus. The conditional writ gives prosecutors a limited time frame in which to retry the defendant; otherwise, the defendant goes free.
In this case, the Ninth Circuit granted a conditional writ to convicted murderer Joshua Harvest, on the ground that inadmissible hearsay tainted the jury’s verdict in violation of his Sixth and Fourteenth Amendment rights. The State of California had sixty days to decide whether to accept a modified conviction of second degree murder or to retry Harvest for first degree murder. But somehow, word of this deadline did not make it from the Attorney General’s office, which handled the habeas litigation, to the local District Attorney’s office, which handled Harvest’s prosecution.
Almost a month after the deadline expired, the local District Attorney checked up on the status of the case, learned about the lapsed deadline, and immediately set the wheels in motion for a retrial. Three days later, the Assistant Attorney General handling the habeas case filed a big mea culpa with the district court, asking it to extend the conditional writ and keep Harvest behind bars in the meantime. Of course, Harvest opposed this motion and demanded immediate release. The district court sided with the prosecutors, concluding that the delay was excusable.
On appeal to the Ninth Circuit, the Court reverses. The Court acknowledges that other circuits have allowed district courts to extend conditional writs under similar circumstances. The good news for the State is that the Ninth agrees that such extensions are permissible.
And now the bad news for the State: the Ninth holds any extension must be subject to the strict rules of Rule 60(b) of the Federal Rules of Civil Procedure, which provides relief from judgment in limited circumstances. The panel concludes that none of Rule 60(b)’s limited exceptions applies to the facts of this case, where the Assistant Attorney General’s mistake was, in his own words, “professionally inexcusable.”
So a convicted murderer may walk free. But his freedom may be short-lived, as the panel notes that its decision does not bar prosecutors from rearresting and retrying Harvest. It’s unclear whether this means that police will be waiting with a warrant outside the prison door, in which case this decision is much ado about nothing.
In any event, the decision highlights an important practice tip for litigators: while a mea culpa may sometimes be necessary, you should probably not volunteer the opinion that your mistake was “inexcusable.”
