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New York Jailhouse Lawyer Wins Resentencing, Release

by Benjamin Tschirhart

At 28 years old, drug addicted and semi-homeless, Kelly Harnett was nobody’s idea of a model citizen. So when implicated along with boyfriend Thomas Donovan in a July 2010 murder in a public park in Queens, New York, she knew it was bad. But she didn’t expect things to end quite so badly.

Violent and abusive, Donovan frequently beat Harnett before strangling a man to death in the park for making a pass at her. Following his arrest, however, Donovan gave an affidavit against Harnett, claiming that her role in the killing was equal to or greater than his own. Donovan was able to negotiate a manslaughter plea, with a sentence of 15 years in prison.

Harnett, believing that her innocence would vindicate her, went to trial. She didn’t even speak in her own defense. She got 17 years to life. After betraying Harnett, Donovan went on to die of an overdose in prison in 2017, never attaining the freedom he had bought with her life.

Once in prison, Harnett’s hopelessness was transmuted into a drive to save herself. Unfortunately, she had no experience with the law and could not understand the statutes or rules of criminal procedure. She began by helping others with simple legal tasks, slowly expanding her own understanding.

Things finally went her way in 2021 with passage of the state Domestic Violence Survivors Act (DVSA) which allowed for more lenient sentencing (or resentencing) for state offenders who were also victims of domestic violence, if that violence was a relevant factor in their crimes. On April 27, 2022, Harnett returned to court and pled guilty to a reduced charge of manslaughter. She was released on parole about a week later.

Two months before her release, in January 2022, Harnett had filed a pro se habeas corpus petition in federal court for the Eastern District of New York. Among her grounds was a complaint of a double jeopardy violation by her trial judge, who excused two jurors after their swearing-in, then proceeded to declare a mistrial and empanel a new jury. She also complained of a violation of her right to public trial as her brother was not allowed to attend certain court proceedings. Harnett requested immediate release based on her inability to access legal resources due to COVID-19 restrictions, and she requested appointment of council for the same reason.

Although she had already been released by the time the Court considered her petition on January 25, 2023, Judge Hector Gonzalez said her claim was not moot, citing Janakievski v. Exec. Dir. Rochester Psychiatric Contr., 955 F3d 314 (2d Cir. 2020), which requires that a petitioner “at each stage of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” Even non-custodial restrictions on liberty, such as the restraints that accompany parole, satisfy this condition.

The Court went on to deny Harnett’s request for counsel, yet also denied respondent’s motion to dismiss, ordering prison superintendent Eileen Russell to file copies of Harnett’s judgment of conviction, motion papers from her 2022 motion to vacate her conviction, her plea agreement to manslaughter, as well as the judgment of conviction for that charge, in order to facilitate a sua sponte consideration. See: Harnett v. Russell, 2023 U.S. Dist. LEXIS 12826 (E.D.N.Y. Jan. 25, 2023).  

Additional source: New York Magazine

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