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The state attorney general’s office has decided not to appeal the release of Glenn “Buddy” Nickerson, who was convicted of two murder counts. Last month, U.S. District Chief Judge Marilyn Hall Patel set Nickerson free after he spent 18 years in prison for a crime he maintained he didn’t commit. Saying his conviction was tainted by police misconduct, Patel ruled that Nickerson is, in fact, likely innocent of the two 1984 drug-related killings. “We disagree with the opinion completely, but we don’t think we’d be successful on appeal,” said Deputy Attorney General Gregory Ott, who has been handling the case. Wednesday was the deadline for the state’s appeal. “Obviously, we’re very pleased with Judge Patel’s decision. I think the attorney general made the appropriate decision,” said Nickerson’s lawyer, M. Gerald Schwartzbach. “Now we have to see what the [Santa Clara County] district attorney’s office decides.” DA George Kennedy has another month to decide if his office will retry Nickerson. In 2001, William Carl Jahn became the fourth man convicted in connection with the crime. Using DNA evidence, Santa Clara prosecutors were able to link Jahn to the crime scene after nearly two decades. Jahn’s presence at the scene also bolstered Nickerson’s appeal. Eyewitnesses had described three assailants, not four. And no one described seeing anyone resembling Nickerson, who weighed more than 400 pounds at the time. The state attorney general’s office had argued that Nickerson’s appeal came after a filing deadline and should be barred. In December 1999, Patel herself threw the case out on similar grounds. Nine months later she reconsidered, ruling that Nickerson might actually be innocent. Over the years, his convicted co-conspirators have repeatedly exonerated him. The defense also submitted a declaration to that effect from Charles Constantinides, a high-ranking deputy DA in Santa Clara who once served as a defense attorney on the case. Ultimately, it was the conduct of the two investigators assigned to the case that provided the grounds for Patel’s ruling. “There is almost no evidence in the case against Nickerson which cannot reasonably be questioned as potentially the product of improper police conduct,” Patel wrote. “This complete lack of independent corroborating evidence of Nickerson’s guilt deeply concerns the court.” Patel’s focus on flawed evidence could make it difficult for Kennedy to pull the trigger on a retrial. The investigators were also hit with misconduct findings at the murder trial of one of Nickerson’s co-defendants, which occurred after Nickerson was convicted. In that case, a Santa Clara County judge declared a mistrial after he discovered suppressed evidence. “We are not ready to announce what we’re going to do,” said Santa Clara County Assistant DA Karyn Sinunu, adding that the office is looking at the evidence. Meanwhile, Schwartzbach, of Mill Valley, said his next step is to ask the court to remove the conditions put on Nickerson’s release, including electronic monitoring. Schwartzbach represented another man convicted in connection with the 1984 murders. He said he has been representing Nickerson pro bono because he knows from the prior representation that he is innocent.

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