Lee v. Tennis et al

Filing 104

MEMORANDUM re: Bail Conditions. Signed by Magistrate Judge Martin C. Carlson on August 22, 2014. (kjn)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HAN TAK LEE,
Petitioner
v.
KEN CAMERON,
Superintendent, et al.,
Respondents

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Civil No. 4:08-CV-1972
(Judge Nealon)
(Magistrate Judge Carlson)

MEMORANDUM
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter comes before the court for consideration of an uncontested motion
for bail pending further litigation of a federal habeas corpus petition filed by the
petitioner, Han Tak Lee. The background of this litigation is as follows: In 1990, Han
Tak Lee was convicted in the Court of Common Pleas of Monroe County of arson and
murder in connection with the death of his daughter, Ji Yun Lee, in a cabin fire at a
religious retreat. At the time of his initial state criminal prosecution in 1989 and 1990,
the Commonwealth had released Lee on bail pending trial, bail conditions that
reportedly included a $50,000 bond. Lee appears to have complied with these bail
conditions, and no violations of this original state bail have been reported to the court.
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Lee’s 1990 trial and conviction was based, to a substantial degree, upon
scientific evidence concerning the source and origin of this fire, and Lee’s federal
habeas corpus petition challenged this conviction on due process grounds, arguing that
the validity of this fire science evidence had been undermined by sweeping
developments in the state of human knowledge regarding fire science in the 24 years
that have passed following Lee’s conviction. In particular, the petitioner has contended
that the current science in this field has revealed the invalidity of this evidence
presented at Lee’s 1990 trial and “that the admission of the fire expert testimony
‘undermined the fundamental fairness of the entire trial,’ Keller v. Larkins, 251 F.3d
408, 413 (3d Cir. 2001), because ‘the probative value of [the fire expert] evidence,
though relevant, is greatly outweighed by the prejudice to the accused from its
admission.’ Bisaccia v. Attorney Gen., 623 F.2d 307, 313 (3d Cir.1980) (quoting
United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir.1974)).” Han Tak
Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012).
Initially, this petition was denied by this court. Lee then appealed this decision
to the United States Court of Appeals for the Third Circuit, which reversed this
judgment, and remanded this case for discovery and further evidentiary proceedings.
Han Tak Lee v. Glunt, 667 F.3d 397 (3d Cir. 2012). That appellate decision defined the
law of the case, and charted the course of this litigation. In its ruling, the court of
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appeals concluded that Lee was entitled to further discovery regarding his claims
concerning the invalidity of the prior fire science evidence submitted to the jury in this
case. Id. at 405. The court of appeals also defined standard for federal habeas corpus
relief in this matter, stating that:
To succeed, Lee must show that the admission of the fire expert testimony
“undermined the fundamental fairness of the entire trial,” Keller v.
Larkins, 251 F.3d 408, 413 (3d Cir.2001), because “the probative value
of [the fire expert] evidence, though relevant, is greatly outweighed by the
prejudice to the accused from its admission.” Bisaccia v. Attorney Gen.,
623 F.2d 307, 313 (3d Cir.1980) (quoting United States ex rel. Bibbs v.
Twomey, 506 F.2d 1220, 1223 (7th Cir.1974)).
Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012).
Guided by this mandate, we then both oversaw post-conviction discovery, and
conducted an evidentiary hearing aimed at resolving any remaining factual issues in
this case. At the conclusion of these proceedings, we recommended that the petition
for writ of habeas corpus be conditionally granted and that this matter be remanded to
the Court of Common Pleas of Monroe County with instructions to provide Lee with
a new trial on these charges, finding that Lee had “show[n] that the admission of the
fire expert testimony ‘undermined the fundamental fairness of the entire trial,’ Keller
v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001), because ‘the probative value of [the fire
expert] evidence, though relevant, is greatly outweighed by the prejudice to the
accused from its admission.’ Bisaccia v. Attorney Gen., 623 F.2d 307, 313 (3d
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Cir.1980) (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th
Cir.1974)).” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012). On August 8,
2014, the district court adopted this Report and Recommendation, vacated Lee’s
conviction, and directed that the Commonwealth of Pennsylvania elect to either re-try
or release Lee within 120 days. (Doc. 93.) That order remains under review by the
Respondents, who are determining whether to appeal this decision, re-try Lee, or
resolve both to appeal this decision and then conduct a retrial of this matter, if
necessary, following any appeal.
Following the entry of this order, the petitioner filed a motion for bail pursuant
to Rule 23 of the Federal Rules of Appellate Procedure. (Doc. 94.) The district court
directed the Commonwealth to respond to this bail motion within three days if it
opposed bail for Lee, ( Doc. 95), and the Commonwealth elected not to oppose this
motion for bail. This matter was then referred to the undersigned to set bail conditions
for Lee’s release, in light of the fact that the Commonwealth has not opposed bail for
the petitioner while this habeas corpus litigation continues.
With respect to this motion for bail, while the petitioner has proceeded without
objection by the Commonwealth to seek bail pursuant to Rule 23(a) of the Federal
Rules of Appellate Procedure, we also note that settled case law has long recognized
that the power to order bail in habeas proceedings is a legal and logical concomitant
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of the court’s habeas corpus jurisdiction. In fact, our authority to act in these matters
has been carefully defined by the courts which have held generally in habeas corpus
matters that the court may consider bail motions and have prescribed legal standards
for such relief, stating that:
[C]ourts that have been faced with requests for bail [in connection with
a habeas petition] have developed standards requiring that a habeas
petitioner (1) make out a clear case for habeas relief on the law and facts,
or (2) establish that exceptional circumstances exist warranting special
treatment, or both. See, e.g., Eaton v. Holbrook, 671 F.2d 670, 670 (1st
Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Calley v.
Callaway, 496 F.2d 701, 702 (5th Cir.1974).
Lucas v. Hadden, 790 F.2d 365, 367 (3d Cir. 1986).
Moreover, applying these settled principles, federal magistrate judges have, in
the past, conducted habeas corpus petition bail hearings of the type contemplated in
this case and entered bail orders in these cases. See D’Allessandro v. Mukasey, No. 08914, 2009 WL 799957 (W.D.N.Y. March 25, 2009)( bail proceeding, habeas petition,
immigration detention).
In considering conditions of release in this case, pending completion of the
litigation of this habeas corpus petition, we make the following findings:
First, we find that the Commonwealth has not opposed this petition for release
on bond.

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Second, we find that, at the time of the petitioner’s initial prosecution on these
arson and murder charges, he was, in fact, released by the state court on bail pending
trial. Furthermore, there is no indication by the Commonwealth that the petitioner ever
violated those bail conditions initially set in his state case, and it appears that
throughout the initial state court proceedings Lee appeared for court as required.
Third, we find that Lee has no prior criminal record except for the state
conviction which has now been vacated by the court.
Fourth, we find that Lee’s institutional conduct history during the past 24 years
that he has been held in the custody of the Pennsylvania Department of Corrections is
largely unremarkable. Over the past quarter of a century Lee has been found to have
violated prison rules on only 8 occasions resulting in disciplinary sanctions, principally
for relatively minor prison infractions.
Fifth, we find that the petitioner has the support of Kyung Sohn, and others, who
have prepared and stand ready to implement a program for housing, care, treatment and
oversight of the petitioner while this matter remains pending in the courts.
Sixth, we find that Kyung Sohn is prepared to serve as a third party custodian,
and is capable of serving as a third party custodian, ensuring the petitioner’s
compliance with bail conditions, and reporting any violations of bail to the court.

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Seventh, conclude that Lee has shown that “‘extraordinary circumstances exist[]
that make the grant of bail necessary to make the habeas remedy effective.’ Iuteri, 662
F.2d at 161; see also Grune, 913 F.2d at 44.” Mapp v. Reno, 241 F.3d 221, 230 (2d Cir.
2001). In this regard, we note that the relief Lee seeks from this court is narrow,
specific and precise: he seeks bail while litigation of his federal habeas corpus petition
and related state criminal case proceeds. We have already concluded, consistent with
the prior mandate and guidance of the United States Court of Appeals for the Third
Circuit, that Lee is entitled to federal habeas corpus relief since he has “show[n] that
the admission of the fire expert testimony ‘undermined the fundamental fairness of the
entire trial,’ Keller v. Larkins, 251 F.3d 408, 413 (3d Cir.2001), because ‘the probative
value of [the fire expert] evidence, though relevant, is greatly outweighed by the
prejudice to the accused from its admission.’ Bisaccia v. Attorney Gen., 623 F.2d 307,
313 (3d Cir.1980) (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220,
1223 (7th Cir.1974)).” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012). The
district court has adopted this finding, vacated Lee’s conviction, and ordered a new
trial in this case. Given the fact that Lee has been incarcerated for the past 24 years,
and that further significant delays may arise in this litigation if the Commonwealth
appeals the decision, or elects to pursue these charges further, we find that
“‘extraordinary circumstances exist[] that make the grant of bail necessary to make the
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habeas remedy effective.’ Iuteri, 662 F.2d at 161; see also Grune, 913 F.2d at 44.”
Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001).
Finally, consistent with the findings set forth in our Report and Recommendation
in this case, which has been adopted by the district court, we also conclude that the
petitioner has “ma[d]e out a clear case for habeas relief on the law and facts, . . . . See,
e.g., Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d
159, 161 (2d Cir.1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974).” Lucas
v. Hadden, 790 F.2d 365, 367 (3d Cir. 1986). Therefore, the petitioner has satisfied
both of the legal elements necessary for bail consideration in this setting by: (1)
making out a clear case for habeas relief on the law and facts, and (2) establishing that
exceptional circumstances exist warranting special treatment. Lucas v. Hadden, 790
F.2d 365, 367 (3d Cir. 1986).
Having made these findings we conclude that there are conditions of release that
will reasonably ensure both the safety of the community, and Lee’s appearance at
future proceedings. These reasonable, and individually tailored, release conditions
which we find appropriate are as follows:
The petitioner must not violate federal, state, or local law while on release.
The petitioner must advise the court in writing before making any change of
residence or telephone number.
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The petitioner must appear as required and must surrender as directed, if
necessary.
The petitioner shall surrender any passport to the Clerk, U.S. District Court, and
shall not obtain a passport or other international travel document without the prior
approval of the court.
The petitioner must abide by the following restrictions on personal association,
residence, or travel: The petitioner’s travel will be restricted to Pennsylvania, New
Jersey and New York.
The petitioner must not possess a firearm, destructive device, or other weapon.
The petitioner shall execute an unsecured appearance bond in the amount of
$50,000.
The petitioner will be released to the custody of a third-party custodian, Kyung
Sohn, who must certify that he will ensure the petitioner’s compliance with these bail
conditions, and immediately report any violation of these conditions.
Having made these findings, an appropriate order shall issue.
So ordered this 22d day of August, 2014.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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