Daniel Larsen’s sister rubbed his shoulders as he waited for the three-judge panel to take the bench at the U.S. Ninth Circuit Court of Appeals courtroom in Pasadena Tuesday.
The 46-year old was waiting for lawyers from the California State Attorney General’s office to argue why he should be sent back to prison and why they don’t think he’s innocent.
“One reasonable juror could still vote to convict,” said Stephanie Brenan, a deputy attorney general.
Daniel Larsen is serving 27 years to life in prison following a conviction as a third striker for carrying a concealed knife during a 1998 bar fight in Northridge. Larsen claimed he was innocent, but his attorney never called any witnesses. Two cops testified they saw Larsen throw a knife under a car that night. A jury convicted Larsen a year later.
The California Innocence Project picked up his case in 2002 and wrangled with state and appellate courts until 2008, when a federal judge decided to hear their last-ditch habeas corpus petition. Larsen’s attorneys produced two witnesses that were never introduced in his original trial. The witnesses say they saw another man throw the knife under the car.
That was enough for a district judge to overturn Larsen’s conviction in 2010 on the basis that his first trial attorney was incompetent and violated Larsen’s constitutional rights. The state attorney general’s office appealed the decision and Larsen waited in prison for the next legal step.
His attorney argued Larsen should not be kept in prison waiting for the appeals process, especially after his conviction was overturned. But the state attorney's general office, under Kamala Harris, said Larsen waited six years too late to file the habeas petition, according to statute, and therefore doesn’t qualify for his case to be heard.
Enter the U.S. Supreme Court.
In May, the high court ruled in McQuiggan vs. Perkins that inmates could ask for a federal review of their conviction long after the petition deadline had passed, if they can prove “actual innocence.”
That means Larsen would have to do more than just introduce new evidence that he says proves his innocence. Under this “actual innocence” standard, Larsen must show that no reasonable juror would have convicted him had they heard the new evidence in the first place.
“It reemphasizes what a high standard it is,” Brenan told the three-judge appeals panel during oral arguments on Tuesday.
In Larsen’s case, the new witnesses are the McNutts, a married couple who was at the scene of the fight in 1998. The husband, a former chief of police from North Carolina, testified that he saw another man throw a knife under the car and heard the metal object hit the ground.
“With that credible testimony, no juror is going to convict Danny Larsen,” said defense attorney Jan Stiglitz. “You have to ask what if the jury had heard this evidence?”
Brenan said that the new witnesses could only say that they saw another man throw the knife under the car, not that they didn’t see Larsen throw the knife. She questioned why Larsen himself didn’t take the stand. Those points, coupled with the two officers’ testimony, could make it possible for a juror to find it difficult to allow Larsen to walk free, Brenan argued.
For now, Larsen is out of prison, but under GPS monitoring and must give his federal probation officers a heads up if he plans to leave his house or get permission to visit people. Larsen has past ties to the white supremacist Nazi Low Riders gang.
His attorney says the next step is more waiting. Stiglitz says he doesn’t expect the three-judge panel to take more than 30 days to render a decision on whether Larsen is “actually innocent.”
If either side doesn’t like what the three-judge panel rules, the state and Larsen could file for a re-hearing in front of all the appellate court judges.