The jury agreed. William Barnes, who had already served his time for the attempted murder of Police Officer Walter Barclay in 1966, wasn’t liable for his death  40 years later. But as one might expect, it wasn’t going to be that easy.

When Barnes was picked up on the murder charge in 2007, he had a cellphone and car keys on him. Among his parole conditions was the requirement that he have his parole officer’s permission for a cellphone and a car, and apparently he didn’t. A violation! A technical one, since he had done nothing wrong with them, nor was there any particular reason why they were part of his conditions, but they were nonetheless.

The violation resulted in a recommendation of six months additional time. He did his six months, but with the murder charge pending, he was held. After the acquittal, he came again before the parole board, but this time the assistant who lost his murder case kindly explained in a letter that he was the sort who should never see the street again.  And he was held. And he remains in prison still.

Eventually, he sought habeas relief from the federal court, where the case was sent to Magistrate Judge Timothy Rice.  In his crippled from the shooting,

lived a fitful existence of limited work, injuries from car accidents, heavy smoking, hepatitis, depression, rage that rendered him unwilling to cooperate with physical therapists, a possible stroke in 2005 and more hurdles than any man should bear. He died in 2007. The cause was listed as a urinary tract infection.

Barnes had nothing particularly to commend him. He never saved a cat from a tree or a child from a burning building. He never found religion or dedicated his life to good causes.  There is a question as to whether he ever really felt remorse for what he did, though he eventually said he did.  The best that can be said of Barnes is that, after a few escape attempts, he served his time.  And he was a human being. But then so was Barclay.

The prosecutor who lost the murder trial sent a letter to the parole board arguing against Barnes’ release:

He stated he “came to know William Barnes quite well” while preparing for the murder trial, and claimed Barnes “remains the same vile criminal that he was” decades ago, “despite his outward appearance of a frail, elderly person.” Id. The ADA falsely asserted Barnes “has yet to serve the full sentence” he received in the 1960s for shooting Officer Barclay, and demanded that Barnes “should spend the rest of his life in prison.” Id. at 239-40. In closing, the ADA attached an autopsy photograph of Officer Barclay’s legs.

If ever there was a person to test the mettle of the system, William Barnes was the one.  And Magistrate Judge Rice made his recommendation.

After careful consideration, I respectfully recommend Barnes’ petition be GRANTED, and Barnes be released from custody immediately. A local prosecutor portrays Barnes as a murderer meriting life in prison, but a jury of Barnes’ peers acquitted Barnes of murder. The Board’s repeated denial of reparole strongly suggests that, like the local prosecutor, the Board seeks nonetheless to punish Barnes for that crime. If due process means anything, it means that the state may not punish an individual for conduct of which he has been acquitted.

Even the worst of us, and make no mistake that William Barnes is one of the worst of us, is entitled to due process.  He’s now 75 years old and, as of this writing, in a cell.  The State of Pennsylvania seeks to keep him there for a murder for which he was acquitted because, now that passions are again stirred at the shooting of Barclay, they have decided that he just doesn’t deserve to be free.

The parties will have an opportunity to file objections to the report and recommendation, which will go before the District Court Judge for decision, where he can accept, reject or modify the recommendation.  Mag. Rice concluded:

The actions of the Board, the DOC (through the prison superintendent), and the ADA have forced Barnes to endure a shocking pattern of arbitrary and irrational expectations, requirements, and parole denials over the past two years.

Immediate release is the only remedy that will fully redress the constitutional violation at hand and ensure Barnes is subjected to no further arbitrariness or vindictiveness. I recommend ordering him paroled forthwith.

Forthwith is a funny thing in this proceeding, as will be a while before the report and recommendation reach the court and conclusion.  If the State drags things out long enough, and the court allows it, maybe Barnes will die before any decision was reached.  Even if he is eventually released upon this “arbitrary and irrational” state conduct, he will have spent years in prison that, for someone else, would never have happened.  And for the State, that’s the point, to keep William Barnes in prison for as long as possible, and hopefully until he dies.

H/T Max Kennerly