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California man still behind bars 2 years after judge orders release

By Victoria Kim and Weston Phippen, Los Angeles Times –

LOS ANGELES — Daniel Larsen was in a California prison serving a life sentence when he received the news he had awaited more than a decade. A federal court in Los Angeles had thrown out his conviction for carrying a concealed knife.

Two judges concluded that jurors who convicted Larsen would never have found him guilty had they heard from additional witnesses who saw a different man with the knife. Larsen’s attorney, who has since been disbarred, failed to adequately investigate the case and identify the witnesses before the trial, the judges found.

But two years after he was supposed to be released, Larsen remains behind bars while the California attorney general appeals the decision. The state’s main argument: He did not file his legal paperwork seeking release on time.

California Attorney General Kamala D. Harris, whose office maintains that evidence still points to Larsen’s guilt, accuses him and his attorneys of filing a petition seeking his release more than six years after he was legally required to do so. Prosecutors question whether the judges had the authority to hear Larsen’s petition for release.

The standoff offers a window into what is often a defendant’s last chance to have a criminal conviction overturned.

Larsen turned to the federal court to file a habeas corpus claim after exhausting his appeals in California state courts. In overturning Larsen’s conviction, the federal court found he was “actually innocent” under the law because it had no confidence in the outcome of the original trial.

Prosecutors have long been frustrated by the seemingly endless appeals from inmates claiming innocence, many of whom were convicted on solid evidence. Robert Weisberg, a professor at Stanford Law School, said the attorney general appears to be trying to prevent an onslaught of legal claims by prisoners who have tenuous arguments. States want to make it nearly impossible for inmates to reopen their cases in federal court, which force prosecutors to retry cases in which they have already won convictions, he said.

“What they’re saying is, this guy had his chances. At a certain point the music has to stop, and a case just has to be closed,” Weisberg said. “We’re afraid that lots of people who were not unjustly convicted are going to be encouraged to frame their case as the injustice of the century.”

Larsen’s attorneys say prosecutors are interested only in a win for win’s sake. They contend that evidence that Larsen is innocent is strong enough to overcome any need to meet legal deadlines.

The wrangling over byzantine legal rules governing federal habeas corpus laws could take several more years to resolve.

On Monday, Larsen’s supporters delivered copies of online petitions to the attorney general’s office in downtown Los Angeles demanding the man’s release.

“He’s living in legal limbo just waiting to be released,” said his fiancee, Christina Combs.

The attorney general’s office declined to comment.

Larsen’s legal saga began in June 1998 at a parking lot outside a bar in the Northridge section of Los Angeles.

Two police officers responded to a report of a bar fight and testified that they saw Larsen take a shiny metal object out of his waistband and throw it under a car. They said they searched the area and found a double-edged knife about 6 inches long.

Larsen’s attorney, Michael Edward Consiglio, did not call any witnesses on Larsen’s behalf, despite his client’s claims of innocence. Jurors found him guilty and, because Larsen had two prior convictions for burglary, he qualified for a lengthy prison term under the state’s three-strikes law and was sentenced to 28 years to life.

From prison, Larsen contacted nine different attorneys for help until the California Innocence Project picked up his case in 2002.

After the group’s legal claims were repeatedly rejected in state courts, the organization filed a last-ditch habeas corpus case in federal court in 2008. A year later, U.S. District Court Magistrate Judge Suzanne H. Segal heard what jurors at Larsen’s initial trial never did — testimony from three witnesses who said they saw a different man, not Larsen, with the knife.

Among the new witnesses was a correctional officer visiting from Tennessee who formerly served as a police chief in North Carolina, and his wife. After listening to the witnesses, the judge described Larsen’s claims as one of the “extraordinary cases where the (prisoner) asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” She found that Larsen’s attorney failed to provide a competent defense.

U.S. District Judge Christina A. Snyder agreed and ruled that Larsen could be released even though his legal claim missed the federal court’s deadlines.

Larsen, who had not told his family that he was fighting his case, called with news that he would be coming home soon. He told his brother Todd he was counting the days to meeting his nephew and niece for the first time.

Then came the attorney general’s appeal. Prosecutors asked that Larsen remain behind bars during the appeal, saying he was a danger to society. Snyder concluded there was no evidence that Larsen posed a public threat. But she delayed her order until the 9th U.S. Circuit Court of Appeals resolves the legal dispute.

“He was about 14 days from walking out the door,” said one of his attorneys, Wendy Koen, who told Larsen about the appeal during a prison visit. “He was tasting freedom.”

A 1995 U.S. Supreme Court decision said that prisoners found to be “actually innocent” should be released even if they had not followed all legal technical requirements. The next year, Congress passed a new law with stringent time limits on when inmates could file habeas corpus cases in federal court. But the nation’s highest court has never ruled on whether those deadlines apply in cases in which there is evidence of “actual innocence.” Appellate courts across the nation disagree on whether they do.

The attorney general’s office, in its court filing, cited Congress’ action in arguing that Larsen missed his chance to seek federal relief. Prosecutors strongly disagreed with the federal judges, saying Larsen’s case did not meet the standard of “actual innocence.”

As Larsen remains behind bars, the appeal is slowly winding through the system. In June, the attorney general’s office requested a 45-day extension to file its brief. In July, the office asked for an additional 30 days.

Combs, his fiancee, said Larsen had been eager to start his new life on the outside.

“Then the conversations turned from weeks to months and now it’s been a year,” she said.

Now, they are making plans to get married — even if it’s behind bars. Larsen’s cellmate will be his best man.

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