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SAN JOSE — Santa Clara District Attorney George Kennedy still believes Glen “Buddy” Nickerson is guilty. But he won’t try to prove it. Kennedy announced Monday he won’t refile murder charges against Nickerson, who was released from prison in March after U.S. District Judge Marilyn Hall Patel concluded he’d been improperly convicted of a 1984 double murder. In a brief press release, Kennedy insisted that the DA’s office “holds a stronger case for Nickerson’s guilt than that publicized by Nickerson’s appellate lawyer and found in Judge Patel’s Memorandum & Order releasing Nickerson.” The DA cited difficulties in retrying the case, and the fact that Nickerson has already spent 19 years in prison. Though pleased with the decision, Nickerson’s lawyer said he was disappointed that the DA’s office “did not take the opportunity to distinguish themselves by acknowledging the truth.” M. Gerald Schwartzbach, a Mill Valley solo handling Nickerson’s case, added that he was outraged by Kennedy’s attempt to link Judge Patel to controversial former California Chief Justice Rose Bird. Kennedy’s release noted that Patel had won the 2003 Rose Bird Memorial Award. “The gratuitous reference to Rose Bird is obviously intended to imply that Judge Patel is lenient on crime,” Schwartzbach said. “It wasn’t just Judge Patel who found those detectives committed perjury,” he said, referring to evidence of police misconduct cited in Patel’s release order. Schwartzbach has long maintained that Nickerson is factually innocent. Nickerson was one of three men originally convicted of double murder and attempted murder after a drug deal went bad. During Nickerson’s 1987 trial, a key witness testified that he saw three men of average build leave the crime scene. Nickerson weighed 400 lbs at the time of the crime. After Nickerson’s conviction, a fourth man was convicted on the basis of DNA evidence at the crime scene. “They leave out the most important reason why they are not retrying the case, which is that he is innocent,” said Schwartzbach. Kennedy declined to comment further, but Assistant DA Karyn Sinunu replied that Nickerson hadn’t been found innocent. “The court did not make a ruling that he is factually innocent. The court made a very narrow ruling, and we relied on that.” She said Patel’s findings eliminated a key prosecution witness, and reiterated that the passage of time would complicate any effort to retry the case. Sinunu denied that the office included the Bird Award reference as a slap at Patel. “That’s a very odd thing to say,” she said. “We have the utmost respect for the federal bench.” Because the state attorney general’s office declined to appeal Patel’s ruling, Monday’s decision brings Nickerson’s case to a close. In the statement, Kennedy said Nickerson’s age of 49 would hopefully decrease his “criminal propensity.” That was one of six factors cited, including the health of the surviving victim, availability of witnesses, and the successful prosecution of three other defendants including the main shooters. Schwartzbach and defense attorney Edward Sousa had represented Nickerson’s co-defendant Murray Lodge, who was also convicted. The two decided to represent Nickerson after Lodge told them that Nickerson had no part in the crimes. Schwartzbach and Sousa worked on Nickerson’s appeal for more than a decade, and handled it pro bono from 1996 to 2002. “It’s been such a long haul,” Sousa said. “For them not to refile is wise. They could have put poor Buddy through a number of years of litigation.” Sousa, a San Jose solo, said he was puzzled by Kennedy’s assertion that the case for guilt was stronger than it appeared from Patel’s order. “I don’t know what it could be they think they’ve got that Judge Patel did not look at,” Sousa said. “She had in excess of 100,000 pieces of paper and 150 exhibits. She had every piece of paper connected with the prosecution.” “She had everything,” Sinunu responded, but “she didn’t comment on everything.”

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