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Days after breathing free for the first time in 17 years, Glen “Buddy” Nickerson was thrown back behind bars Monday by the 9th U.S. Circuit Court of Appeals. Neither mincing words nor taking much time, the court overturned an order by federal Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California that freed the convicted double murderer while he litigates his habeas corpus petition. Saying the case presents “extraordinary circumstances,” Patel had strongly suggested that Nickerson may have been imprisoned for crimes he didn’t commit. The 9th Circuit issued several orders in the case Friday, concluding with one saying it had “reservations” about whether Patel had the authority to grant Nickerson bail. “Even assuming that the district court has such authority in extraordinary cases, the circumstances set forth by the district court in its June 1, 2001, order permitting Nickerson’s release do not warrant the release of Nickerson pending the resolution of the habeas corpus proceeding,” a three-judge motions panel wrote. On Monday, Nickerson lawyer M. Gerald Schwartzbach filed a motion for rehearing en banc, which was immediately rejected by the panel without circulating the motion to the full court. The panel consisted of Judges Ronald Gould, Barry Silverman and Diarmuid O’Scannlain. Schwartzbach furiously denounced the decision. “It’s an unjustified slight at a very courageous judge,” Schwartzbach said. “These are people who made the decision within a matter of hours to overturn a judge that had a case for over 2-1/2 years.” Nickerson was taken into custody and transported to San Quentin State Prison on Monday. Not only does 9th Circuit law allow Patel to free his client, Schwartzbach said, but the court neglected the entirety of the record in issuing a hasty decision. Patel’s June 1 order setting bail at $500,000 leaves out some of the details of the case discussed in previous rulings. One of those rulings, Schwartzbach believes, made Patel the first judge to ignore the federal habeas corpus filing deadlines based on a finding of actual innocence. The state attorney general’s office asked Patel to reconsider freeing Nickerson, but she declined. On Thursday, 13 days after Nickerson was ordered freed, the state sought the writ. “Each day of Nickerson’s release presents danger to society, especially respecting those witnesses who testified against Nickerson at his trial and who are currently testifying in the ongoing Santa Clara County trial of Nickerson’s last untried codefendant,” wrote Deputy Attorney General Gregory Ott in 9th Circuit briefs. The trial of William Jahn, expected to get underway shortly, is a critical factor in Nickerson’s appeal. Along with two others, Nickerson was convicted of the 1984 drug-related killings of two San Jose men. But two lawyers who defended other parties in the case — Schwartzbach and Charles Constantinides, now a Santa Clara County deputy district attorney — say Nickerson’s codefendants said he was innocent. Schwartzbach has litigated Nickerson’s appeals for the last five years pro bono, saying he knows his client is innocent because he represented the codefendant. No witness initially described seeing a 425-pound man flee the scene, which is what Nickerson weighed in 1984. Furthermore, a mysterious trail of blood found at the crime scene could not be traced to any of the three defendants. In 1999, Jahn proved a DNA match to the blood and now faces trial in connection with the 1984 murders. In what some regard as an implicit confession (although Jahn maintains his innocence), Jahn told Schwartzbach during a jailhouse interview that Nickerson had nothing to do with the crime. In another odd turn of events, Schwartzbach has been subpoenaed by the state to testify in Jahn’s trial. He was quick to point out that fact to the 9th Circuit. “[The state] apparently believes that Mr. Jahn was telling the truth when he told counsel that Mr. Nickerson is innocent,” Schwartzbach wrote in his futile en banc motion. Schwartzbach said he received a fax from the 9th Circuit 6 p.m. Thursday, ordering him to reply to the state’s motion — which he had not seen — by noon the next day. Upon learning of the motion and the court’s lightning-quick response, Schwartzbach said he could see the writing on the wall. Voluntarily, Nickerson went to the federal courthouse Friday and waited in the office of pretrial services for marshals to arrest him. When informed that the court set oral arguments, and unaware that it would later have a change of heart, Nickerson left. He spent Father’s Day at his parents’ home, where he has been living under an electronic monitor. Without explaining why, the court on Friday evening cancelled the oral argument and ordered Nickerson taken into custody.

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