A judge Friday agreed to give prosecutors until the end of the day to file an appeal in the case of an Omaha man who has spent the past 20 years in prison for killing a man during a drug robbery.
Late last month, the same judge, Lancaster County District Judge Jodi Nelson, ordered Jack Harris’ release from a Lincoln prison, saying the Nebraska Attorney General’s office missed its chance to retry him after another judge granted him a retrial in 2017, a week before retiring.
In her order, Nelson said the state could have dismissed its appeal, or asked for a new judge to be appointed, or prepare to retry Harris.
“Instead, the state apparently did nothing, other than ask the appellate court to extend the deadline for the state’s merits brief,” she wrote in sustaining defense attorney Sarah Newell’s motion that Harris be discharged on speedy-trial grounds.
The move left the prosecutor, Corey O’Brien, the chief of the Criminal Bureau of the Attorney General’s office, scrambling to see that Harris, 47, remained in prison while he appealed.
In a motion seeking to stay Nelson’s order, O’Brien laid out the case against Harris, who he says shot an Omaha drug dealer, Anthony “Boo” Jones, in the summer of 1995.
In February 1997, a jail-house informant told police Harris confessed to killing Jones because Jones had recognized him while he was robbing him of drugs.
Three months later, police arrested Howard “Homicide” Hicks, who confessed that he was in on the robbery with Harris and Harris shot Jones.
After Harris’ first trial ended with a mistrial, he was retried and convicted.
Harris got life for first-degree murder, plus 10 to 20 years on a weapons charge. He’s currently serving his time at the Lincoln Correctional Center.
But he appealed and, ultimately, Douglas County Judge William Zastera found Harris was entitled to a new trial because material evidence had been suppressed.
An officer’s police report that contained statements that could have helped Harris was not disclosed, he said. And the prosecutor allowed Hicks, who got three to five years for his part in the robbery, to misrepresent his plea agreement when he testified against Harris.
At a quickly scheduled hearing Friday morning, Newell, of the Nebraska Commission on Public Advocacy, said, "As with the rest of this case, obviously the procedural posture is unique."
Here, the state hadn't yet filed an appeal as of Friday morning. Plus, she argued, the plain language of the state statute that governs absolute discharge, which the judge ordered, suggests that discharge is absolute.
O'Brien pointed to another statute that says in criminal cases the execution of judgment and sentence other than confinement shall suspended during an appeal.
Newell said what happened in Harris' case was roughly akin to someone being acquitted at trial, which the state cannot appeal.
O'Brien said if the Nebraska Supreme Court were to disagree with the decision, Harris still would face the possibility of a life sentence and present a danger to the community if he were released and intermingling with potential witnesses.
In the end, Nelson said it was a little troubling to her that O’Brien asked her to enter a stay based on an appeal that he hadn’t yet filed.
“A little bit 'cart before the horse,'" she told O’Brien.
But she said she took O'Brien at his word that he would file it Friday.
“And I mean today,” Nelson said.
O’Brien said he was just waiting for a certification to come from Douglas County and he’s ready to file.
Nelson said if he needed something to be certified in Douglas County, it’s just 60 miles up the road.
“It seems to me that you can accomplish that without sitting around waiting for something to happen,” she said.
But, in an abundance of caution, Nelson said, she would enter a stay pending an appeal being filed Friday and also set a $5 million appeal bond, should that not happen, meaning Harris would need to post it before being released.
O'Brien filed an appeal later Friday.