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California officials are fighting an order by federal Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California to free a convicted killer she has indicated may have been unjustly imprisoned for the last 17 years. On Friday, evidently frustrated with delays in the habeas corpus petition of Glen “Buddy” Nickerson, Patel ordered that he appear before a federal magistrate and be freed on $500,000 bail. But after learning of the order Monday, the state attorney general’s office immediately asked Patel to reconsider her decision, saying Patel is misinterpreting the state’s compliance with her order. Patel based her decision in part on what she perceived as the dilatory pace of the state in complying with discovery orders. Deputy Attorney General Gregory Ott wrote in court papers that Patel is plain wrong. “The court’s current assessment of respondent’s compliance is incorrect,” he wrote, “and inconsistent with the court’s representations at the May 22 hearing.” At the hearing, Patel ordered the state to produce declarations from Santa Clara County prosecutors who are about to try another man they believe was involved in the crime for which Nickerson was convicted. Furthermore, Ott wrote, the release of Nickerson is causing witnesses in the June 11 trial of William Carl Jahn to have second thoughts. In a declaration, Ott wrote that a witness phoned him Monday. “The witness said that, if petitioner is released, he or she will be reluctant to testify in the Jahn prosecution,” Ott wrote. Nickerson was convicted of two 1984 killings involving drugs in an unincorporated area of Santa Clara County, California. Witnesses described three suspects, all of average build. At the time, Nickerson weighed more than 400 pounds. Also, none of the three men convicted of the crime matched a trail of blood found leading away from the crime scene. That changed when Jahn, recently jailed on unrelated charges, proved to be a match for the mysterious blood. Jahn’s prosecution is one of the key points in Nickerson’s appeal. Furthermore, Nickerson attorney M. Gerald Schwartzbach represented another of the convicted defendants — as did a current Santa Clara County prosecutor — and says he knows Nickerson is innocent. A bail hearing has been set before U.S. Magistrate Joseph Spero for Monday. If Patel ignores or denies the state’s motion, he will likely be set free. “It’s a baseless motion which is premised on a combination of misleading and false statements,” said an irate Schwartzbach, who has been representing Nickerson for the last five years. Ott could not be reached for comment.

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