Archives for posts with tag: military

This habeas petitioner was conviction by court-martial of murder with a Ninjatō sword and sentenced to life in prison. The federal courts here affirm the military court judgement.

ninja to sword

CURTIS A. GIBBS, Petitioner,
v.
J. E. THOMAS, Respondent.

1:07-cv-01563-SKO-HC

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

2010 U.S. Dist. LEXIS 122152

Decided November 15, 2010, filed November 18, 2010.

Opinion by US Magistrate Judge Sheila K. Oberto:

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

This case opinion was affirmed by the Ninth Circuit in January 2012, memorandum opinion before Judges Leavy, Tallman and Callahan.

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Recall the case of US v. Ronald Gray, aka “Ninja Pants” as described in prior NinjaLaw post. I already told you about his case and subsequent appeals and as promised “ninja pants” has reappeared here at #35, the appeal in 1999. This opinion is the 35th Federal Court opinion with the word “ninja” and it appears only as an attachment listing the appellant’s claims. Here, the US Court of Appeals for the Armed Forces affirmed the conviction, the military rank demotion and the death sentence as ordered by the US Army Court of Military Review. The Court did not agree with claims that the ninja pants should have been suppressed.

For more information about serial killer Ronald Gray see his wikipedia entry.

This 1993 Ninja case might be called a failure of the “Dungeons and Dragons” insanity defense. The narrative of the appeals court decision explains an adventure game gone crazy as two soldiers become ninja assassins. And I wonder what was up with ninja in North Carolina in the early 1990’s because this is the third NinjaLaw post in a row that is from that area (Ninja Pants was also Fort Bragg and Motorcyle Bank Robbers was also NC).

ninja dungeons

MARK EDWARD THOMPSON, Petitioner-Appellant, v. GARY T. DIXON, Warden, Central Prison, Respondent-Appellee.
No. 92-6779
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
987 F.2d 1038

Decided – February 19, 1993

Opinion by Judge Morgan:

In the fall of 1986 the Petitioner was a 17-year old enlisted soldier in the Army stationed at Fort Bragg, North Carolina. There he met Jeffrey Karl Meyer, and the two began playing “Dungeons and Dragons,” an adventure game in which the participants enact roles and carry out adventures in a medieval setting. In November 1986, the Petitioner and Meyer were playing a game of Dungeons and Dragons which called for several “Ninja” assassins to enter the house of an elderly couple and assassinate them. The two chose the home of Mr. and Mrs Paul Kutz in rural Cumberland County, North Carolina, because it had what resembled a moat around their house. On December 1, 1986, the Petitioner and Meyer went to the Kutz’s home around 11:15 p.m. and broke in. They found Mr. Kutz, age 69, in his recliner and Mrs. Kutz, age 62, asleep in her bed. They killed Mr. Kutz by stabbing him 17 times and cutting his throat. The two killed Mrs. Kutz by holding her down and stabbing her numerous times. After stealing jewelry, credit cards and a television set, the Petitioner and Meyer returned to Fort Bragg. They were stopped by military police who discovered the stolen property. The military police notified Cumberland County authorities who discovered the bodies of Mr. and Mrs. Kutz. The Petitioner and Meyer were subsequently arrested.

The Petitioner confessed to being present at the murders, stealing the property and watching Meyer stab the Kutz’s. The Petitioner later confessed to his psychologist that he participated in the stabbing of Mrs. Kutz. At trial, the Petitioner contended that he was not guilty by reason of insanity and that he lacked the mental capacity to formulate the requisite intent required for murder. In his instructions at the close of trial, Judge Herring instructed the jury that “sanity or soundness of mind is the natural and normal condition of people; therefore, everyone is presumed sane until the contrary is made to appear.” (J.A. 64). On October 26, 1989, the jury rejected the Petitioner’s insanity and mental illness defenses and found him guilty of two counts of first-degree murder, two counts of robbery with a dangerous weapon, and one count of first-degree burglary. He was convicted and sentenced to three consecutive life terms of imprisonment plus two forty-year terms which were combined to run subsequent to the expiration of the life sentences.

The Petitioner appealed all judgments to the North Carolina Supreme Court. The North Carolina Supreme Court found no constitutional error in his trial. State v. Thompson, 328 N.C. 477, 402 S.E.2d 386 (1991). The Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 with the district court on November 25, 1991. His sole claim was that the state trial court violated his due process rights under the Fourteenth Amendment when it instructed the jury that he was presumed to be sane unless he proved otherwise. On January 8, 1992, the State filed its answer to the Petitioner’s habeas corpus petition and moved for summary judgment. On July 2, 1992, the district court granted the State’s motion for summary judgment, finding the state trial court’s presumption-of-sanity instruction did not in any way relieve the State of its burden of proving the intent which was an element of the offenses of which he was convicted by the jury. (J.A. 38). The Petitioner argues on appeal that these presumptions deprived him of his due process rights by removing the presumption of innocence and relieving the State of its burden of proving beyond a reasonable doubt that he intentionally committed the felonies of which he was convicted.

So defendants can’t just say playing Dungeons & Dragons made them insane and that they thought they were a ninja. The Japanese ninja was a D&D class in first edition D&D, in a 1985 expansion called “Oriental Adventures”. The character class only resumed recently in the 3rd edition. Perhaps the defendant was frustrated by the unavailability of the ninja character class in the middle editions of the game. If so, it is fair under due process and North Carolina law, to obligate the defendant to prove his insanity and this court does not find a violation of rights to innocence until proven guilt. Defendants are presumed sane.

A similar example of a case in which a defendant performed criminal acts by referencing to a role playing game involved the Vampire Masquerade game. I’ll tell you more about it when I get around to writing VampireLaw (soon enough but not today!). In the meantime, I hope you are reading ZombieLaw which is so far the most active.

In 1992, a US Army court of Military Review decided an petition of appeal on the court martial of Specialist Ronald A. Gray, convicted of “attempted murder, premeditated murder (two specifications), rape (three specifications), larceny, robbery (two specifications), forcible sodomy (two specifications), and burglary” and was sentenced (at his 1991 trial) to death.

UNITED STATES, Appellee v. Specialist Four RONALD A. GRAY, 261-69-7258, United States Army, Appellant
ACMR 8800807
UNITED STATES ARMY COURT OF MILITARY REVIEW
37 M.J. 730

In the December 15, 1992, decision Judge Naughton wrote:

On 6 January, the authorities observed the appellant with a dark bundle underneath his arm. When the authorities apprehended the appellant, he no longer had the bundle; however, authorities found a pair of black karate or “ninja” pants close by in a garbage can. A portion of the cloth belt strap was missing from the pants. The appellant denied committing any offenses and invoked his right to counsel.

continuing:

A few hours later the authorities discovered Ms. R’s body in the woods not far from her taxi cab. The body was lying face down in a wooded area. The body was nude except for a pair of socks. Ms. R had been gagged with the black cloth belt strap from the appellant’s “ninja” pants, and her hands had been tied behind her back. She had received multiple stab wounds. She also suffered bruises on her eyebrow, bruises on her nose, and a laceration on her lip. Swabs taken from her vagina and anus revealed that she had been raped and sodomized. The appellant’s fingerprints were found on the interior door handle of Ms. R’s taxi, and money in his possession at the time of his arrest was found to have Ms. R’s fingerprints on it.

This Court went on to affirm the convictions and the sentence of death:

We conclude that the sentence is appropriate for the crimes of which the accused stands convicted.

But this was not the end (nor was it the beginning) for US v. Gray in the Federal Courts. In fact, Lexis Shepardizing lists this case with three prior history citations and 48(!) subsequent history citations – many many motions denied. In March 1995, the case was argued before the US Court of Appeals for the Armed Forces and then reargued in December of 1996 and finally decided in May 1999. The Court again affirmed the criminal convictions and the order of death. This US v Gray case will appear again (when we get to #35) in our NinjaLaw review of all “ninja” opinions because the 1999 decision also mentions the “ninja pants” by including and appendix list of all of appellant’s claims of error, including:

18. The military judge improperly denied the defense motion to suppress the black “ninja” pants.

In 2001, the Supreme Court of the United States (Justices Rehnquist, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer) denied the petition for writ of certiorari in March 2001 and then in May 2001 denied petition for rehearing.

But still that was not the end for Specialist Ronald Gray.

A 2008 court stayed the execution and just this past January 26, 2012, a US Army Court of Criminal Appeals decided yet another denial:

Private E1 RONALD GRAY United States Army, Petitioner v. Colonel ERIC BELCHER, Commandant, United States Disciplinary Barracks and THE UNITED STATES, Respondents
ARMY MISC 201100931
1 The docket number for petitioner’s direct appeal is ACMR 8800807.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
70 M.J. 646

Judge Johnson denied this most recent motion, a “Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis”, and explained some of the recent history:

On 28 July 2008, the President of the United States [George W. Bush] approved petitioner’s sentence to death and ordered it executed. The Secretary of the Army scheduled petitioner’s execution for 10 December 2008; however, before it could be carried out, the United States District Court for the District of Kansas granted a stay of execution in anticipation of petitioner filing a petition for extraordinary relief in the nature of a writ of habeas corpus. Thereafter, petitioner filed a writ of habeas corpus, which is still pending before that court.

On 11 February 2011, petitioner filed with this court the instant petition for extraordinary relief in the nature of a writ of coram nobis. We then ordered the government to show cause why the writ should not issue, and it filed an answer brief on 14 March 2011. Petitioner filed a reply brief on 13 June 2011. Petitioner is currently in confinement at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

Meanwhile, a 2008 opinion, US v. O’Neil, cited the 1992 Gray opinion for the principle: “photographs, although gruesome, are admissible”. By all accounts Gray was convicted of horrible acts of violence and nearly every Court since 1991 has ruled against him and yet still 20 years later his death sentence has not been imposed. This would be the first execution in the military since John A. Bennett in 1961.

But it still may be quite a long life left for Ronald Gray. Who knows how long these court proceedings could continue?