(CN) - Chief Judge Alex Kozinski of the 9th Circuit told the parents of a murdered couple that they were "biting off a lot" by trying to hold a prosecutor liable for not previously extraditing the killer.
The families say that Massachusetts officials prematurely released Daniel Tavares, a confirmed member of the Peckerwoods white supremacy gang, from prison in 2007 after he had spent 16 years there for stabbing his mother to death.
Despite earning 120 disciplinary reports while in prison, Tavares was released nearly two years early because the Massachusetts Department of Corrections failed to count these infractions against his good time credit, according to the complaint.
Once he was out, Tavares allegedly "absconded" to Washington state. Even though Massachusetts officials tracked the felon down, they "inexplicably, purposely, and with great deliberate indifference, willfully chose not to have him extradited to Massachusetts," according to the complaint.
The families say this was a fatal mistake, since Tavares broke into the Graham, Wash., home of Beverly and Brian Mauck five months later and murdered the couple.
A federal judge refused to grant immunity to the prosecutor who failed to extradite Tavares, leading the parties to an appellate hearing before the 9th Circuit in Spokane, Wa., on Wednesday.
Kozinski, one of three judges on the panel, peppered the families' attorney Anna Price with questions and seemed unimpressed by her answers.
Pointing out that the prosecutor's office often has to make hard choices about how to allocate its resources, Kozinski asked Price: "Why can't a prosecutor of Massachusetts make the decision, we just don't want to spend the money? We don't want to spend the money, we don't want to spend the time, we don't want to spend the resources of the people of the commonwealth to get this guy who isn't going to be anywhere near any of our people. ... How is that decision, the decision how intensely to prosecute, how many resources to devote, how is this any different from deciding to assign an experienced prosecutor or to assign it to a rookie?"
Price responded that other safeguards such as judicial supervision and post-trial motions separate Kozinski's proposed scenario with the decision to extradite.
Kozinski remained unconvinced.
"When a prosecutor loses a criminal case in America, there are no remedies," he said. "It's gone. It's dead as a doornail. If they try the case badly and they lose, it's double jeopardy - you heard of it? So there are no post-trial motions, it's gone. Why? Because we had a rookie prosecutor, and if he had done a better job... Too bad, it's gone. Can you then go ahead and sue the DA and say, 'Boy you should have put your ace prosecutor on there'?"
Price said this case differs from that scenario because the state actors sought "to avoid the judicial process."
"They were aware of how violent Tavares was," Price said. "He had affiliations with white supremacist groups. He stabbed his mother to death. They were aware of who he was and what his propensities were."
Kozinski again demurred.
"So what?" he asked. "I mean, that's the kind of judgment prosecutors make all the time. They decide based on all the facts, including the history of the subject, whether or not prosecuting this person will serve the people of the commonwealth. ... And if they decide, this guy may be perfectly dangerous, but he'll be dangerous somewhere else, not any of our concern, why isn't that a legitimate prosecutorial decision?"
"What if he was in Japan?" Kozinski continued, referring to Tavares. "Would Massachusetts be required to get the State Department to do an international extradition?"
Price said it would be consistent with her clients' position that, "if they confirmed those were his whereabouts, then their decision not to prosecute him and not to extradite him back to Massachusetts would not be protected by absolute immunity."
Kozinski found Price's argument implausible.
"Really? Really? They would have to go to the State Department, invoke whatever treaty we have with Japan, a hugely expensive endeavor involving relations between two countries? They would have to do all that to keep themselves from being sued? Wow, that's really a big chunk. You're biting off a lot," he said.
Judges Paul Watford and Morgan Christen also serve on the three-judge panel.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.