Family of couple murdered in 2007 loses case because the 9th Circuit ruled that prosecutors ‘are entitled to absolute immunity’ from lawsuits for the decisions they make
This politically charged case, with its strange twists and turns, calls for some changes in government immunity. Bob Walsh says, “Excrement occurs, and sometimes there isn’t much you can do about it.” It shouldn’t be that way.
MURDER VICTIMS’ KIN LOSE APPEAL IN VIOLENT, POLITICALLY CHARGED CASE
By Bob Egelko
San Francisco Chronicle
November 20, 2012
Daniel Tavares, mentally disturbed and violent, was paroled from a Massachusetts prison in June 2007 after serving more than 15 years for killing his mother. Before he could be released, he was rearrested for allegedly assaulting two guards while still in prison, but a judge released him anyway without bail, rejecting a request by local prosecutors for a $100,000 bond — a decision that would later become an issue in the 2008 presidential campaign. Tavares quickly boarded a plane to Washington state, where five months later he killed a young Tacoma-area couple, shooting each one in the head at close range. He is now serving life in prison without the possibility of parole.
Tavares’ case surfaced Monday in the Ninth U.S. Circuit Court of Appeals in San Francisco, where law enforcement officials from Massachusetts were challenging the right of his murder victims’ relatives to sue them for damages. One allegation in the lawsuit was that once they realized Tavares had fled, local authorities issued an extradition warrant that applied only to neighboring states and not to the entire nation — a grossly negligent decision, the relatives said, that allowed him to remain free and murder Beverly and Brian Mauck.
But the court, in a 3-0 ruling, said extradition is a prosecutorial decision. Just as a prosecutor can’t be sued for deciding not to charge someone, the court said, officials who decide not to extradite a fugitive, or to issue only a limited extradition warrant, “are entitled to absolute immunity” from lawsuits.
That doesn’t mean the case is over. John Connelly, a lawyer for the murdered couple’s relatives, said they still have a claim that Massachusetts miscalculated Tavares’ good-behavior credits in prison and released him two years too soon, despite evidence that he was “a ticking time bomb.” That evidence, Connelly said, included death threats Tavares had made in prison against the governor — Mitt Romney — and the state’s attorney general.
That’s the legal side of the case. The political side has to do with the judge who released Tavares without bail in 2007, and Romney, who had appointed the judge.
After the Washington murders, Rudy Giuliani, the former New York mayor who was running against Romney and John McCain for the Republican presidential nomination, said the Tavares case raised questions about Romney’s record on crime. Romney denied responsibility and called on the judge, a former prosecutor named Kathe Tuttman, to resign, saying she had shown an “inexplicable lack of good judgment.”
Tuttman, who apparently had not been informed by prosecutors about Tavares’ violent record, didn’t resign and is still on the bench. Romney also said the case showed why Massachusetts needed a death penalty. But even if the state had a death penalty it wouldn’t have applied to Tavares, who, because of a history of mental problems, was allowed by prosecutors to plead guilty to manslaughter instead of murder for stabbing his mother to death.
Giuliani pounded on the issue in campaign ads, and it may have hurt Romney, who fell from front-runner in the 2008 New Hampshire primary to a distant second behind McCain, the eventual Republican nominee. Giuliani finished fourth and withdrew from the race three weeks later.
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