For the past 20 years, Jack Harris has remained in a Nebraska prison, serving a life sentence for the 1995 execution of Anthony “Boo” Jones of Omaha during a drug robbery.
Now, a judge has ordered that Harris, 47, go free.
The reason: After 20 years of twists and turns, the judge ruled that prosecutors did not try Harris within his six-month speedy-trial rights.
In turn, the Nebraska Attorney General’s Office is scrambling, asking Judge Jodi Nelson to keep Harris in prison while it appeals.
Corey O’Brien, chief prosecutor in the Attorney General’s Office, wrote that Judge William Zastera, on the eve of his retirement, improperly granted Harris a new trial without first holding an evidentiary hearing.
However, Judge Nelson pinned the problems on the Attorney General’s Office for not pushing for a hearing after asking Zastera to reconsider his order for a new trial.
It also appears that the case was delayed as the Nebraska Supreme Court sought to replace Zastera after he retired.
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Watching from the sidelines, Douglas County Attorney Don Kleine is alarmed. Kleine’s office originally obtained Harris’ conviction before having to recuse itself as Harris filed repeated appeals.
“This is a big deal; the defendant was somebody we were very concerned about,” Kleine said. “Now, 20 years later, a judge grants a motion for absolute (dismissal). It’s a very troubling turn of events.”
So troubling that the Attorney General’s Office has requested an emergency hearing for Friday — as the office asks a judge to keep Harris in prison while it appeals.
The 1995 case has had more twists than the ties that bound the victim’s hands and feet.
Start with the crime: On Aug. 23, 1995, Jones’ wife found her 35-year-old husband bound and shot in the head at their apartment at 7317 Grant St. An accomplice, Howard “Homicide” Hicks, eventually admitted to helping plan the robbery of Jones, who was believed to keep money and drugs in a closet.
Hicks, who took a plea bargain in return for his testimony, alleged that Harris shot Jones. His testimony was buttressed by two other inmates who said Harris told them about the killing and a third man who testified that Harris told him about robbing Jones.
The first jury at Harris’ trial deadlocked, and a judge ordered a new trial.
In July 1999, the second jury convicted Harris of first-degree murder and weapon use. He was sentenced to life in prison.
Then the twists began. “Homicide” Hicks recanted, saying he was pressured and intimidated by police into testifying.
Such recantations are not rare — and are not necessarily evidence that a defendant is innocent. At the time, then-prosecutor Leigh Ann Retelsdorf noted that Hicks, after testifying, ended up in prison with people who might not take kindly to a so-called snitch. “Who is to say what kind of pressures, threats he’s receiving?” Retelsdorf said then.
That started Harris’ process of appeals. And a series of recusals. The Douglas County Attorney’s Office got out of the case because Harris originally had been represented by a law partner of a prosecutor. Its replacement: the Nebraska Attorney General’s Office.
All the judges of the Douglas County District Court bench then recused themselves after Retelsdorf became a judge.
So the case was assigned to Zastera in Sarpy County. The judge twice was reversed after the Nebraska Supreme Court ruled that he had filed incomplete orders.
When he got it back a third time, Zastera took under advisement several allegations that Harris believed should merit a new trial. Among them, Harris’ attorney, Sarah Newell of the Nebraska Public Advocacy Commission, pointed out that:
» Terrell “Big Horse” McClinton, who had been convicted in a brutal rape and attack on his wife, claimed that “Homicide” Hicks confessed to killing “Boo” over “money for the dope he got fronted.” Another inmate alleged that a second witness had said he had lied at Harris’ trial.
» Harris had claimed at trial that he had never met Hicks. However, unbeknownst to Harris’ defense attorney, Omaha Police Officer Leland Cass had written a report, claiming that Harris had called Hicks by the nickname “Homicide.” Harris denied that. And Harris’ attorney argued on appeal that he never would have asserted to the jury that his client didn’t know Harris if police had turned over that report, as required.
On Sept. 21, 2017, 10 days before he retired from the bench, Zastera shocked prosecutors by ruling that Harris should receive a new trial.
O’Brien immediately filed a motion for new trial — and an appeal. O’Brien noted that Zastera had ruled without holding an evidentiary hearing on the purported new evidence. He just took the allegations as gospel, O’Brien argued.
By the time the ink dried on O’Brien’s motion, Zastera was retired.
The case entered a sort of judicial ether. Prosecutors’ motion for a new trial, and their appeal, languished.
On Dec. 11, 2017, the Nebraska Supreme Court asked prosecutors to explain why “the appellate record in this case does not contain ... a final order on the motion for reconsideration.” All appellate cases must include final orders.
The Nebraska Attorney General’s Office did not respond to the court’s question. In turn, the high court dismissed the attorney general’s appeal.
The reason? No judge had ruled on the state’s motion to reconsider Zastera’s ruling.
The reason no judge had ruled? No judge had been assigned to take over Harris’ case.
The record shows that court officials were hardly on top of the case. The Nebraska Supreme Court had appointed former prosecutor Nathan Cox to replace Zastera. However, no one had assigned Harris’ case to Cox.
On March 30, 2018, six months after Zastera retired, prosecutors wrote to ask Douglas County’s presiding judge to petition the high court to appoint a new judge to Harris’ case.
On May 1, 2018, the Nebraska Supreme Court appointed Cox. But — wait for it — Cox later recused himself.
On July 10, 2018, the high court appointed Judge Nelson, of Lancaster County.
The wheels of justice were grinding. And Harris’ speedy trial clock was ticking.
Under the law, prosecutors have six months — not including any time it takes to address a defendant’s motion — to bring a defendant to trial.
More than 10 months had passed since Zastera issued his order for a new trial.
Now prosecutors are scrambling to hit rewind on the case. The predicament has brought up all sorts of questions, including this: Was it prosecutors’ responsibility to remind officials to assign the case to another judge after Zastera’s retirement? And this: Were Harris’ speedy trial rights truly violated?
Judge Nelson wrote that the state’s motion to reconsider “could have been resolved well within the six-month speedy trial clock.” Instead, “it is still pending.”
The judge noted that the state “did not ask for another judge until March 30, 2018.” Nelson also faulted the Attorney General’s Office for not responding to the Nebraska Supreme Court’s request to explain why there was no ruling on their motion to reconsider.
“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 ... it could have done all of the above.
“Instead the state apparently did nothing.”
The state disagrees. Out of caution, prosecutors say, they filed both a motion to reconsider and an appeal of Zastera’s order. Both were pending — and Harris’ speedy-trial clock should not have been ticking down during that time, they argue.
In turn, the state has asked Nelson to keep Harris in jail while it appeals her order.
Suzanne Gage, spokeswoman for Nebraska Attorney General Doug Peterson, said in a statement: “The Attorney General believes the significant and complicated issues should be reviewed by an appellate court before the defendant’s case is discharged.”
If the judge refuses, Harris will go free. A hearing is scheduled for Friday.