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SAN JOSE — While behind bars for a murder he didn’t commit, Rick Walker missed his father’s funeral and his son’s childhood. He has since collected $421,000 from the state — about $100 for each of the 4,280 days he sat in prison. But he says that’s not enough. Walker is one of three Bay Area men recently released from prison whose lawyers are now pushing civil suits to recover compensation. Standing in their way, say government lawyers, are prosecutorial and police immunities. Attorneys for the three men are confident they can overcome the obstacles and persuade juries to award millions. Keker & Van Nest partner Elliot Peters represented John Tennison in his successful appeals. Tennison was found factually innocent of murder last year, and Peters has filed a suit on his behalf against the city of San Francisco. He’s also filed a claim for money with the state. “How much is John Tennison entitled to for spending 14 years in Mule Creek State Prison for a murder he’s innocent of?” Peters asks. “Tens of millions.” Walker — who was prosecuted by the Santa Clara County district attorney’s office — has a lawsuit in the works, according to his lawyers. So does Glen “Buddy” Nickerson, who had spent almost 19 years in prison for a 1984 murder in Santa Clara before his release by a federal judge last year. Santa Clara County Counsel Ann Ravel questions attempts to collect money from the state’s victim compensation board and still sue the counties. In Walker’s case, it took a bill in the Legislature to release the funds. “I think that the intention was that it was supposed to be a way to compensate him through the government,” Ravel said. “To turn around and double dip after there was such an effort on his behalf, I think it’s questionable.” Tennison was 17 when San Francisco police fingered him in 1990 for a notorious gang killing. Former San Francisco Police Chief Earl Sanders, then a homicide inspector, oversaw the murder investigation. Prosecutors and police had no physical evidence in the case, so they relied on two eye witnesses — a 14-year-old girl and her 11-year-old friend — to win a conviction. Tennison was represented at trial by Jeff Adachi, now S.F.’s elected public defender, who long maintained his client was innocent. S.F. District Attorney Terence Hallinan agreed last year, and stipulated to Tennison’s factual innocence in his habeas corpus proceedings. In August, U.S. District Judge Claudia Wilken granted the petition and ordered his release. In the suit, Tennison alleges that his due process rights were violated when Sanders and prosecutors withheld exonerating evidence and tampered with a key witness. Because of federal related-case rules, Wilken, who wrote the 100-page order freeing Tennison, will preside over his due process suit. “Judge Wilken is a good judge. She is a very careful and thorough judge,” said Peters. “Her opinion is going to be part of the case.” Peters said prosecutorial and police immunities are not absolute. “You have a lot of immunity, but it’s not unqualified,” said Peters. And while district attorneys have absolute immunity for the work they do in court, their immunity for investigative action is qualified. “You don’t have immunity for doing what amounts to knowingly violating someone’s constitutional rights,” Peters said. “The prosecution withheld exculpatory evidence. They withheld the confession of another guy. They withheld that they paid witnesses. They coached witnesses, which we believe amounts to suborning perjury.” Peters hesitates to put a precise value on Tennison’s claim. Instead, he points to Sanders, who now has his own civil rights suit stemming from his indictment and dismissal in the fajitagate scandal. “If [Sanders] is entitled to $30 million for the two weeks of unpleasantness [because he was] named as a defendant in a case later dismissed, how much is John Tennison entitled to?” questioned Peters. Like Tennison, Walker was deemed factually innocent by a judge after prosecutors became convinced they had the wrong guy. “[Walker] wasn’t freed on a technicality or some legal roadblock,” said his plaintiffs attorney, Richard Schoenberger. “He was freed because he didn’t do it.” Schoenberger, a partner with Walkup, Melodia, Kelly, Wecht & Schoenberger, said he’s preparing to file a civil suit for false imprisonment and violation of due process rights now that Santa Clara County has rejected Walker’s claim. Walker was convicted of murdering a former girlfriend in 1991. He lost a series of appeals. But family friend and Morrison & Foerster partner Alison Tucher agreed to investigate his case pro bono. Tucher, a former South Bay prosecutor, contacted the Santa Clara DA’s office, which agreed to test old DNA found at the crime scene. The test exonerated Walker, and he was released in a state habeas corpus ruling. Tucher helped Walker collect $421,000 from the California Victim Compensation and Government Claims Board. Tucher said when she first started the process she called an attorney with a similar situation. His advice: “Tell your client to forget about that money. He’d be lucky to see it in two years.” But Walker, whose mother is a former East Palo Alto mayor, was paid within three months of his release, thanks to an emergency authorization bill sponsored by South Bay-based Assemblyman Joe Simitian. Simitian didn’t return telephone calls. Ravel, who has already rejected Walker’s claim for money from the county and is now reviewing Nickerson’s, said plaintiffs attorneys shouldn’t underestimate the amount of latitude the government code provides law enforcement and prosecutors. “With regard to the district attorney’s office, it’s very difficult for them to overcome immunities and show there were any improprieties,” Ravel said. But Schoenberger defended Walker’s decision to pursue more compensation, rejecting Ravel’s claim that it’s “double dipping.” “That kind of cynical argument can be made, but it’s not something that could be admissible,” Schoenberger said. “Even if [jurors] were able to consider it, comparing the amount of money he received and the amount of harm he suffered is apples and oranges.” Unlike Walker and Tennison, Glen “Buddy” Nickerson never got a finding of factual innocence. U.S. District Judge Marilyn Hall Patel granted Nickerson’s habeas petition in March 2003, writing that ��more probably than not he is innocent of the crimes for which he was convicted.” Nickerson was one of four men convicted for the 1984 murders of two Santa Clara drug dealers. Witnesses claimed from the start that three men committed the crimes; the fourth defendant wasn’t tried until years later. Santa Clara County DA George Kennedy chose not to refile the case, but insisted on Nickerson’s guilt in an angry press release. Nickerson’s attorney, M. Gerald Schwartzbach of Mill Valley, said the lack of a factual innocence finding won’t stop him from pursuing Nickerson’s civil remedies. “Whether the district attorney has been willing to acknowledge Buddy’s innocence or not, his factual innocence is an undeniable reality,” said Schwartzbach, who also represented Nickerson in habeas proceedings. “There is no one with any objectiveness who can look at the record in the case and conclude nothing other than that this man spent 18 1/2 years in a cell for a crime he had nothing to do with.” He didn’t just lose time, Schwartzbach said. Nickerson’s years in prison cost him his health, and could ultimately cost him his life. He is is ill and recently underwent major surgery, Schwartzbach said. “No one could give back that time. No one can give him back his life. No one can give him back his health,” Schwartzbach said. “It’s my expectation in one way or another to see him compensated.”

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