Massachusetts Not Liable for Washington Murders

     (CN) – A Massachusetts prosecutor is not liable for failing to extradite a killer from Washington before the offender murdered a couple there, the 9th Circuit ruled Monday.
     Such officials have absolute immunity from liability in decisions about whether to prosecute or extradite an alleged criminal, the federal appeals court in Spokane found.
     Daniel Tavares got out of prison in New England in 2007 after serving some 16 years for killing his mother. During his time behind bars, Tavares joined a white supremacist gang, assaulted and threatened staff and inmates numerous times, and even made threats against then-Gov. Mitt Romney, the court noted.
     Just before releasing him on his own recognizance, prosecutors charged Tavares with assaulting a member of the prison staff.
     Tavares failed to appear for a hearing on that charge and instead headed to Washington. A few months later, he broke into the home of Beverly and Brian Mauck and murdered them.
     In a subsequent lawsuit, the Maucks’ families said that Massachusetts officials had already tracked Tavares down, but had “inexplicably, purposely, and with great deliberate indifference, willfully chose not to have him extradited to Massachusetts.”
     The Massachusetts officials allegedly erred in requesting a limited warrant that allowed extradition only from other states in New England.
     U.S. District Judge Ronald Leighton had refused to grant immunity to the three individual defendants named in the complaint: Worcester County Assistant District Attorney Erin Donnelly; Massachusetts Commonwealth Fusion Center Sgt. Richard Range; and Kevin Burke, then secretary of the Executive Office of Public Safety and Security.
     A three-judge appellate panel unanimously reversed on Monday.
     “It has long been the law of this circuit that a decision whether to prosecute or not prosecute is entitled to absolute immunity,” Judge Morgan Christen wrote for the court.
     “Here, Tavares had been charged and arraigned so his new criminal case had moved from the investigatory phase to the judicial phase,” Christen added. “The decision whether to extradite him, like the decision whether to prosecute him, was intimately associated with the judicial phase of the criminal process. Indeed, the decision whether to extradite was the next step in the judicial process. Accordingly, whether the decision in this case is characterized as a decision not to extradite, or as a decision to extradite only from a limited area, defendants are entitled to absolute immunity for their participation in that decision.”
     At a hearing last month, Chief Judge Alex Kozinski scoffed at an attorney for the families who said the extradition duty would have been just as strong even if Tavares had absconded to Japan.
     “Really? Really?” Kozinski asked. “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.”

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