LINCOLN — A convicted Omaha killer, ordered to go free earlier this week, will stay put in prison for now.
Lancaster County District Judge Jodi Nelson opted Friday to keep Jack E. Harris, 47, in prison while the state appeals her decision to turn him loose on speedy trial grounds.
The move means this twisting, turning case now is in the lap of the Nebraska Supreme Court. In the next six to 12 months, the state’s high court will decide whether Harris, who is serving a life sentence, will finish out that term.
Nelson had ordered Harris free — ruling that the Nebraska Attorney General’s Office had done “nothing” after appealing retired Judge William Zastera’s decision to grant Harris a new trial in the Aug. 23, 1995, drug-related killing of Anthony “Boo” Jones. By taking no action, Nelson wrote, prosecutors violated Harris’ right to a speedy trial.
Even with Nelson’s move Friday to put his release on hold, Harris’ eventual freedom is still very much a possibility.
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A review of Nelson’s order, court records and interviews with two one-time prosecutors, who spoke on condition of anonymity, suggested that scrutiny will focus on three players:
Prosecutor Corey O’Brien and the Nebraska Attorney General’s Office: Judge Nelson, a former prosecutor, spent much of her dismissal order blasting the Attorney General’s Office for not following through with challenges to Zastera’s order granting Harris a new trial. She noted that O’Brien, chief of criminal prosecutions, could have obtained a hearing date before Zastera retired and could have sought a new judge to hear his motion for reconsideration after Zastera retired.
Further, after filing an appeal, O’Brien did not respond when the Nebraska Supreme Court sent an email to him, asking him to explain why the case didn’t include an order on the motion to reconsider. Nelson ruled that O’Brien and the Nebraska Attorney General’s Office failed to act from October 2017 through March 2018.
“The state could have done several things,” Nelson wrote. “It could have asked for another district judge to be appointed, it could have begun preparing to retry Harris. ... Instead the state apparently did nothing.”
O’Brien defended himself briefly outside court on Friday. He said he wanted to protect the state’s interests by filing both an appeal and a motion for new trial. “We erred on the side of caution,” O’Brien said.
Judge Zastera: On his third try in deciding Harris’ case — his first two attempts were sent back by the Nebraska Supreme Court — Zastera ordered that Harris should be granted a new trial. The judge issued his order Sept. 21, 2017, just 10 days before he retired.
However, prosecutors say that order was faulty because Zastera didn’t hold an evidentiary hearing on the purported new evidence entitling Harris to a new trial. Harris had pointed to a police report that wasn’t turned over — and to an inmate’s account that an accomplice had recanted his testimony against Harris and had confessed to the killing. (Such recantations aren’t rare, especially when they come from informants who subsequently become concerned about their safety in prison.)
Two questions the high court may be asked: Was the judge’s order for a new trial faulty? And if it was, should Harris’ speedy-trial clock have started ticking?
Court officials: No court administrator assigned Harris’ case to a different judge after Zastera retired. Logistics may have had something to do with that. The state’s high court had reassigned the Douglas County case to a Sarpy County judge after all of Douglas County’s judges recused themselves. They stepped aside because one of their colleagues, Leigh Ann Retelsdorf, was the original prosecutor on the case.
When Zastera readied for retirement, Douglas County court administrators say it doesn’t appear he or his staff alerted them that they needed a new judge for the case, perhaps assuming the case immediately would be assigned to Zastera’s successor. It wasn’t.
The two prosecutors agree that Harris had no duty to seek out a judge; a defendant never does. But they disagree on who should have been seeking a replacement.
One of the attorneys noted prosecutors drive all criminal cases. Plus, in this case, O’Brien had sought a hearing on his motion to have Zastera reconsider his order. He should have alerted court administrators that the case had no judge, the attorney said. “It’s the prosecutor’s job.”
But the other former prosecutor suggested that the court system should have ensured that Harris’ case was assigned to a new judge. “The parties to a case shouldn’t have to run around looking for a judge,” the attorney said. “It’s the judiciary’s responsibility.”
Now, it’ll be the Nebraska Supreme Court’s duty to sort out the mess.
Jones’ wife found him bound and shot in the head in their apartment at 7317 Grant St. After a jury deadlocked in the first case, Harris was convicted largely on the testimony of an accomplice, Howard “Homicide” Hicks, and three inmates who said Harris made various admissions. In addition to Jones’ killing, Harris had been suspected, but never tried, in another shooting death in the mid-1990s.
One judge called the dismissal the “Hollywood definition of a technicality.”
But one man’s technicality is another man’s constitutional right: Under the Sixth Amendment, a defendant has an absolute right to be tried within six months, not including any time it takes to decide defendants’ motions. And in this case, Harris’s speedy-trial clock was ticking while the courts — and more pointedly, prosecutors, according to Judge Nelson — were doing “nothing.”
Harris’ attorney, Sarah Newell of the Nebraska Commission on Public Advocacy, filed for the dismissal. Now, his family is hopeful that Harris is on the cusp of freedom.
“God has the last say so,” said a woman who identified herself as Harris’ cousin.
Meanwhile, the victim’s brother, Gary Jones, 58, said his phone “was blowing up” Thursday after The World-Herald first reported the dismissal.
Jones and his sisters are so concerned that they went downtown Friday to Douglas County Attorney Don Kleine’s office to ask what was going on. Kleine, whose office recused itself from the case more than a decade ago, told the family what he knew.
“We’re pretty upset,” Gary Jones said. “I just want to know — is he gonna get off on a technicality? I’m kind of puzzled by the whole thing.”