Archives for posts with tag: mask

Another case of police officers in ninja garb. Here in Bell v. City of Topeka, the police execute a search warrant and are accused of unreasonable force. The Court sides with the city, granting summary judgment.

DAVID L. BELL, Plaintiff,
v.
CITY OF TOPEKA, KANSAS, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Case No. 06-4026-JAR
496 F. Supp. 2d 1182

Decided July 9, 2007 by District Court Judge Julie A. Robinson

Plaintiff claims that after he was pulled from the car, officers slapped hand cuffs on him and slammed him face-first into the car, causing plaintiff to suffer a dental injury. Afterwards, plaintiff was beaten on his legs and lower back, and then he fell to the ground on his knees. Officers then picked plaintiff up, carried him a couple of steps, and then dropped him back down, forcing him to lie face down in a puddle of water. Lieutenant Pase saw the officers remove plaintiff from the car, but he did not see plaintiff being taken to the ground because he could only glance over occasionally while tending to his duties. Lieutenant Pase also saw the officers bring plaintiff toward the street where he lay face down on the ground.

Sergeant Erwin stayed with plaintiff while the officers proceeded with the execution of the search warrant. Plaintiff contends that he asked Sergeant Erwin if he could move so that he would not have to be face down in the water, and Sergeant Erwin’s response was, “Shut the fuck up right now before I put my foot on the back of your mother fucking neck and hold you face down in that water until you drown.” After that, plaintiff claims that Sergeant Erwin made comments such as “I ought to shoot you.” After the scene was secured and officer safety was under control, Lieutenant Pase told Sergeant Erwin to pick plaintiff up off of the ground. At that point, officers wanted to search plaintiff, who told them, “the only thing lower than a mother fucking crackhead was the mother fucking Topeka Police Department.” He also told an officer, “Kiss my ass and good luck.” The officers then told plaintiff that they needed to search his car, and they warned him if they cut themselves on the broken glass from his crack pipe that he would be in trouble. Plaintiff laughed and told the officers, “You stupid mother fuckers, you broke the glass–broke the windows of my car. There’s–the car is full of glass.” Throughout the events that evening and in the early morning, plaintiff describes the officers as being dressed in black, “ninja-like clothing” and wearing masks. Plaintiff was then put into a car for transport to the jail. Plaintiff asked the officer who was transporting him to loosen the handcuffs, which the officer did. Plaintiff was at the jail for approximately twenty-six minutes before he was released at about 1:26 a.m.

The Court found the Plaintiff failed to demonstrate that the police department had negligent training or negligent supervision or that there was unreasonable use of (or excessive) force. Therefore the city’s motion for summary judgment was granted.

The 2006 opinion affirmed a grant of habeas corpus to a convicted murderer. Richard Joseph was convicted of the 1990 murder of 16-year-old son, Ryan Young. The case involved a “black ninja mask”, evidence found with the dead body and linked to the defendant.


RICHARD JOSEPH, Petitioner-Appellant/Cross-Appellee,
v.
RALPH COYLE, Warden, Respondent-Appellee/Cross-Appellant.

Nos. 05-3111 / 05-3113
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
469 F.3d 441

Decided November 9, 2006, before Circuit Judges Moore, Cole and Clay. The opinion by Judge Karen Moore begins:

An Ohio jury convicted Richard Joseph of aggravated murder. The jury also convicted Joseph of a single capital specification, which made him eligible for the death penalty, and, after a mitigation hearing, recommended a sentence of death. The trial court accepted this recommendation and imposed the death penalty, which was upheld on direct and state post-conviction review. Asserting twenty grounds for relief, Joseph petitioned the district court for a writ of habeas corpus. The district court granted the writ on four grounds relating to a fundamental error in the capital specification: although the specification required Joseph to be the principal offender in the commission of the aggravated murder, everyone at trial proceeded under the mistaken view that the specification required Joseph to be the principal offender in the commission of the kidnapping. The district court denied Joseph’s remaining claims. Joseph appeals the denial of six of his sixteen unsuccessful claims, while the state cross-appeals the grant of the writ.

For the reasons discussed below, we AFFIRM the grant of a writ of habeas corpus.

Then quoting facts from from the Ohio Supreme Court’s decision:

Ryan’s body was discovered in a shallow grave. The body was wrapped in Visqueen, the jagged edge of which was matched positively with Visqueen recovered from the job site at Indian Lake where [Joseph] had been working. Under the body, a black ninja mask was recovered. An autopsy revealed that Ryan had superficial lacerations in the area of the throat. Further, Ryan had been stabbed two times in the back – one to the right flank and one at the base of the skull.

And about the materiality and prejudice of suppressed evidence:

All five items of suppressed evidence that were favorable to Joseph were favorable in the sense that they would have impeached Forest. And viewed collectively, these items would have strongly impeached Forest, who was clearly a crucial trial witness for the prosecution. FN22

–FOOTNOTE—
FN22 Forest testified that Joseph and Bulerin had access to Visqueen (the material in which Young’s body was found) at the sand and gravel lot, that Joseph’s and Bulerin’s demeanors were unusual the morning after the kidnapping, that Bulerin changed the tires on Forest’s car the morning after the murder, that a knife was kept in Forest’s car and was in the car on the day of the murder, that Joseph and Bulerin kept a shovel in Forest’s car, and that Joseph owned a black ninja mask like the one discovered near Young’s body

By affirming the grant of habeas petition, the defendant’s death sentence was set aside. Subsequently, writ of certiorari was denied (549 U.S. 1280), and on subsequent state court appeals the remaining life sentence (parole after 20) was affirmed (2008 Ohio 1138), but later remanded in 2010 only for the limited purposes of allowing motion to waive some court costs (125 Ohio St. 3d 76).

Two articles in the Lima Press are noteworthy – the parents of the victim and friends filled the courtroom and the parent were outraged at what they thought was an injustice to not execute their son’s killer:

“You were indicted, convicted by a jury of your peers and sent to death row where you should have died many years ago,” Sharon Young said Wednesday during the resentencing of Richard Joseph for the 1990 murder of their 16-year-old son, Ryan Young. She then criticized the law and justice system for his second chance. “The justice system has failed us and given you, a convicted murderer, another chance in life. Where does the system give Ryan another chance? You did not and neither did the justice system,” she said as she held her husband’s arm while both of them choked back tears. Joseph stared downward at the table in front of him …

Habeas petition successful because of violation of Brady v Maryland and perjured testimony. Time served but conviction vacated. Allegations of robber with a “Ninja mask” (note, ninja is capitalized):

CLINTON TURNER, Petitioner,
– against –
SUNNY L. SCHRIVER, Respondent.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
97 CV 3074 (NG)
327 F. Supp. 2d 174

Opinion by Judge Nina Gershon, decided July 21, 2004:

Petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction, after a jury trial, in the New York Supreme Court, Queens County (Sherman, J.), of Robbery in the First Degree in violation of N. Y. Penal Law § 160.15; Robbery in the Third Degree in violation of N. Y. Penal Law § 160.05; and Grand Larceny in the Fourth Degree in violation of N. Y. Penal Law § 155.30. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of ten to twenty years on the Robbery in the First Degree count, and concurrent terms of two to four years on the Robbery in the Third Degree and Grand Larceny counts. Petitioner has completed his term of imprisonment.

At trial:

Officer Cardo testified that, at around five a.m. on October 17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing over a Toyota that was parked in front of a Dunkin’ Donuts on College Point Avenue in Brooklyn, NY. Three of the individuals were black males and one was a white male. The white male, Mr. Clarke, told Officer Cardo that, as he was walking to his car, he was approached by four individuals, the three black males who were present and one person who fled after robbing him. The robber was carrying a knife and wearing black pants, a shirt, and had a Ninja mask over his face. He was approximately six feet tall and around thirty years old. Mr.. Clarke gave the individual with the knife his wallet, which contained approximately $1500 in cash. After the man took his wallet, he pulled the Ninja mask off of his head which allowed Mr. Clarke to see his face. The three black males were placed under arrest and were subsequently transported to the 109th precinct.

And:

Mr. Clarke testified that he never told the police or anyone else that petitioner was wearing a Ninja mask. Mr. Clarke did not see petitioner take anything out of his car. Petitioner did not have anything on his head when Mr. Clarke found him in the car or during the chase, and Mr. Clarke never told the police that there was anything on his head at that time.

And:

In summation, defense counsel began by stating that petitioner had admitted his criminal record and did not try to hide from the facts of his life. Defense counsel compared Officer Cardo’s testimony that Mr. Clarke told him that he was robbed near his car by a man wearing a Ninja mask with that of Officer Krien that Mr. Clarke told him that he saw only one individual in his car, he chased him, and the person stole his wallet at knife-point inside one of the project buildings. Defense counsel also pointed to the inconsistencies between Mr. Clarke’s testimony and that of both of the officers and how Mr. Clarke’s story changed over time. Counsel argued that these inconsistencies, petitioner’s knowledge of where Mr. Clarke lived and the car that he drove, and the implausibility of Mr. Clarke’s story, all provided reasonable doubt that a crime had occurred.

Concluding:

[T]his court holds that there has been a violation of due process based upon Brady v. Maryland for failure to turn over material impeachment evidence [related to Clarke’s criminal history]; that holding is sufficient in itself to require relief. In addition, on the facts of this case, there has also been a violation of due process based upon the admission of perjured testimony [by Clarke] which the prosecutor should have known was false.

Conclusion

The petition for a writ of habeas corpus is granted, and the judgment of conviction is vacated.