Archives for posts with tag: religion

This 2007 case is an action pursuant to 42 U.S.C.S. § 1983 by a Muslim prisoner in Georgia claiming RLUIPA related First Amendment violations while in prison. Specicially, the plaintiff sought 52 books, some with the word “Ninja” in the title. He also had other issues like wearing his Kufi and having a digital version of the Qur’an. This plaintiff has become something of a jailhouse lawyer filing many actions, but also he is still involved in litigation about related incidents from 1995. The word ninja is mentioned only in this decision involving alleged prison guard violations of first amendment and the plaintiff was released from prison (serving a 10 year sentence) before this 2007 case was decided. But in a strange twist, he is back in prison now facing murder charges related to the original crime. The trial is happening like now (?-see update below-) see links below, but first the 2007 RLUIPA ninja case:

WASEEM DAKER, Plaintiff,
v.
JOE FERRERO, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
CIVIL ACTION NO. 1:03-CV-02481-RWS
475 F. Supp. 2d 1325

Decided, February 26, 2007 by Judge Richard Story:

Plaintiff, proceeding pro se, initiated this civil action in August 2003 against Defendant Joe Philip Ferrero, Acting Commissioner of the Georgia Department of Corrections (“GDC”), and numerous prison officials. In his Fourth Amended Complaint, Plaintiff asserts nineteen claims pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., challenging aspects of his confinement in various GDC prison facilities. Specifically, Plaintiff challenges: (i) a requirement that he “stand at attention” in the presence of prison officials; (ii) a restriction on his wearing of a Kufi, a traditional article of Muslim headdress; (iii) a denial of his request to possess a digital device containing the text of the Qur’an; (iv) content-based restrictions on the sending and receiving of prisoner mailings and publications; and (v) the sufficiency of the procedures afforded to inmates and senders of mail when prisoners are denied certain mailings and publications. 1 On October 25, 2005, Plaintiff was released from prison, but he continues to pursue this litigation.

explaining:

In his third and eighth allegations, Plaintiff claims that Defendants denied him approximately 52 books on the basis of content in violation of the First Amendment. These books include: (1) The Catalog of Catalogs VI; (2) Mathematical Cryptology; (3) Applied Cryptography; (4) Using Microsoft Visual InterDev; (5) C++ How to Program; (6) Dubugging C++; (7) Night Movements; (8) Inside Kung-Fu; (9) Complete Karate; (10) Far Beyond Defensive Tactics; (11) SAS Training Manual; (12) The Encyclopedia of Survival Techniques; (13) The SAS Guide to Tracking; (14) Ninja: History and Tradition; (15) Ninja: Power of the Mind; (16) Ninja Mind Control; (16) Bin Laden: The Man Who Declared War on America; (17) Revolution by the Book; Different Loving; (18) How to Survive the IRS; (19) Witchcraft: A Secret History; (20) Practical Electronics; (21) Lip Reading Made Easy; (22) HansWehr Arabic English Dictionary; (23) Que Tal?; (24) C++ from the Ground Up; (25) Visual Basic from the Ground Up; (26) Ditch Medicine; (27) Do it Yourself Medicine; (28) The Mammoth Book of Love and Sensuality; (29) The Joy of Sex; (30) Building Bots; (31) Gonzo Gizmos; (32) Booby Trap Identification and Response Guide; (33) Death Investigator’s Handbook and DEA Investigator’s Manual; (34) Georgia Criminal Trial Practice; (35) Georgia Criminal Trial Practice–Forms; (36) Georgia Handbook on Criminal Evidence; (37) Green’s Georgia Law on Evidence; (38) Criminal Investigation: Basic Perspectives; (39) Law Enforcement Technology 260: Criminal Investigation; (40) U.S. Army Special Forces Medical Handbook; (41) Military Book Club Emergency Medical Procedures; (42) The Tao of Sexuality; (43) Ragnar’s Guide to the Underground Economy; (44) Investing Offshore; (45) Electronic Circuits and Secret of an Old-Fashioned Spy; (46) The Black Science: Ancient and Modern Techniques of Ninja Mind Control; (47) The Kama Sutra; (48) Samurai: The World of the Warrior; (49) Leadership Lessons of the Navy Seals; (50) Experiments in Electronic Devices and Circuits; (51) three Fantagraphics books; and (52) Guide to Getting it On. (See Pl.’s Statement of Material Facts [hereinafter “Pl.’s SMF”] PP 15-59.)

Defendants do not dispute that they denied Plaintiff these books. Rather, Defendants argue that Plaintiff has failed to demonstrate that he followed the proper procedures in requesting the books, and that, in any event, the books were properly denied on procedural grounds or after a review by a publications review panel. Defendants claim they are therefore entitled to qualified immunity, notwithstanding the reasons for the denial of each individual publication.

Go to this Headnote in the case.Regulations affecting the sending of publications to a prisoner are analyzed under the Turner reasonableness standard. Thornburgh, 490 U.S. at 413 (citing Turner, 482 U.S. at 89). Such regulations are valid if they are reasonably related to legitimate penological interests.

also,

As another example, Plaintiff claims that on October 26, 2004, two books, The Ninja and Endurance Techniques, were denied to Plaintiff. He claims that he was initially denied an opportunity to appeal, but after filing a grievance relating to that denial, Plaintiff was ostensibly given an opportunity to appeal. Nevertheless, Plaintiff alleges that Defendant Hilton Hall “refused to impound the publication for review by the [Publications Review Committee].” After Plaintiff filed another grievance relating to the denial of an opportunity to appeal, Defendant Steve Benton rejected the appeal, stating “only if the facility cannot determine admissibility is the publication to be impounded for further review by the PRC.” (See Pl.’s SMF P 46.) Once again, Defendants “dispute these allegations as written,” without providing any argument or citation to evidence in the record. (See Defs.’ SMF P 46.)

This case decision is on motion for Summary Judgment. The Court granted the motion in part and denied in part. For example the Defendant prison guards were granted summary judgment as related to the wearing of the Kufi. But as to the books, the allegation lived on. But ultimately in subsequent appeal, on a motion to vacate, in the same Court, Judge Story wrote on January 8, 2008, Daker v Chatman, 2008 U.S. Dist. LEXIS 1192 :

Plaintiff has demonstrated, that reasonable prison officials could disagree over whether certain of these titles pose legitimate security concerns in a prison environment. But that disagreement entitles Defendants to qualified immunity. Unless no reasonable prison official could conclude that any of these publications present a security risk, then the “considerable deference” owed to officials engaged in the “‘inordinately difficult undertaking’ that is modern prison administration” and the robust legal protection afforded to governmental agents, who must be allowed to “carry out their discretionary duties without the fear of personal liability or harassing litigation,” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), entitles the denying official to qualified immunity. See Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002) (applying “heightened deference” to prison official’s decision to censor publications). For these reasons and for the reasons stated in its Order of August 24, 2007, the Court remains convinced that the denial of these publications was consistent with the protections afforded to prisoners under the First Amendment, see Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and thus, Plaintiff suffered no constitutional injury. Insofar as Plaintiff moves to vacate this Court’s Order of August 24, 2007, that Motion is DENIED.

Amazingly, this is nowhere near the end of the story. Waseem Daker did get out of prison in 2005 but was re-arrested in 2010 on charges related to the same incidents from 1995. His original imprisonment was related to stalking and assault, and 2010 they arrested him for murder. An order May 9, 2011 by Magistrate Judge E. Clayton Scofield III, in Daker v. Warren, 2011 U.S. Dist. LEXIS 116451, explains,

At the combined probable cause/bond hearing on February 18, [2010] at which Daker was represented by retained counsel, attorney Brian Steel, the trial court heard testimony from Daker’s brother revealing that Daker (who was born in 1977) has family ties to Syria, where his parents were born and raised. The court also heard that Daker has lived in the Atlanta area since 1990; that after his release from state prison in 2005, following ten years of incarceration, until his arrest in January 2010, he worked in the family business as the general manager of a furniture store and lived with his family, who currently reside in a half-million dollar home; and that he has an expired Canadian passport, although it is unclear whether he has dual citizenship in Canada and the United States. (Probable Cause/Bond Hr’g Tr. at 31-41, ECF No. 4-1 at 39-49.) The state argued that Daker’s family has “large assets” and “connections in Syria, where the family’s from” and where Daker has traveled, and that Daker had “connections to Canada” at some point as well: “He has the ability to flee, he has the connections to flee, he’s a risk of flight.” (Id., Hr’g Tr. at 54-55, ECF No. 4-1 at 62-63.) The trial court ruled as follows: “Well, murder is different . . . [addressing Daker’s attorney], in the sense that somebody’s facing a life sentence, so I think that’s a strong motivation for someone to flee, or to think about fleeing. So, today I’m going to deny bond.” (Id., Hr’g Tr. at 55.) Daker filed a state habeas petition, which was denied on June 24, 2010. The Georgia Supreme Court, on November 3, 2010, denied Daker’s application for a certificate of probable cause to appeal that denial. (Pet. ¶ 10.)

And recently, June 25, 2012, Judge Story denied a variety of Daker’s motions in Daker v. Warren, 2012 U.S. Dist. LEXIS 87517, including a motion to reconsider bail, and a motion to recuse both Judge Story and Magistrate Judge Scofield, amongst other pretrial motions. The case remained on the docket the next day, but I can’t tell if it went to trial. It seems Daker first parted with his retained attorney nd was then acting pro se, filing all sorts of motions and then the Court took the unusual step of appointed backup counsel, and Daker seemed to allow that counsel to takeover (?) All this back-and-forth may be an attempted tactic. See article in Marietta Daily Journal “Trial of man accused in gruesome 1995 murder delayed 90 days” and in Atlanta Journal New, Cobb County: “Defendant representing himself in 1995 murder case” – But nothing more recent. Does that mean he hasn’t gone to trial yet or did he take an unreported plea?

waseem daker

— UPDATE —
Murder trial of Waseem Daker to begin in September“, Examiner.com, August 25, by Leigh Egan:

jury selection will begin on September 10th. The trial is set to take place at the Cobb County Superior Court.

Daker, 34, was charged in 2010 with the 1995 murder of Karmen Smith. Smith, a Delta flight attendant, was murdered in her Cobb County home. Only a year after the murder took place, Daker was accused of stalking Smith’s roommate. Subsequently, he was convicted and spent ten years in state prison. Although he remained as an person of interest in Smith’s murder, it wasn’t until 2010 that he was charged, based upon DNA evidence that was found at the scene.

Since then, Daker has attempted represent himself after firing several public and private defenders. Recently, however, he agreed to be represented by the law team of Michael and Jason Treadaway.

— UPDATE 2 — 9/9/2012

Murder trial to begin in Cobb woman’s 1995 strangling” by By Andria Simmons in The Atlanta Journal-Constitution

— UPDATE 3 — 9/14/2012
Defendant represents himself in flight attendant murder case” By Andria Simmons in The Atlanta Journal-Constitution
Stalking victim testifies in Cobb murder trial” By Andria Simmons in The Atlanta Journal-Constitution

The story is also being covered by Kim Issa in The Marietta Daily Journal:
“Opening arguments to begin today in E. Cobb murder trial” by Kim Isaza
Murder suspect was urged to get professional help” by Kim Isaza

and Andrew Spencer at WSBradio
Man charged in 1995 Cobb Co. murder representing himself” by Andrew Spencer as WSBradio
Defendant wants new lawyers in 1995 Cobb murder trial” by Andrew Spencer as WSBradio

— UPDATE 4 – 10/1/2012
“Daker sentenced to life plus 47 years” by Andria Simmons for AJC including a quote from the surviving victim, the son of the murdered woman, himself also assaulted and now currently 22 year’s old.

Advertisements

In this case, the court’s majority denied a writ of habeas corpus to a convicted cult leader, Jeffrey Lundgren, who claimed ineffective assistance of counsel. The word “ninja” appears in the dissent, in which Judge Merritt argues that the defense counsel’s failure to claim the insanity defense was ineffective assistance. But the majority saw it as a reasonable decision and would not let the defendant get the opportunity to first test the case at trial and then allege insanity. The particular facts are about insanity by “deific degree”, meaning the defendant acted under belief he was ordered by god to kill.

JEFFREY D. LUNDGREN, Petitioner-Appellant,
v.
BETTY MITCHELL, Warden, Respondent-Appellee.

No. 02-3001; 440 F.3d 754
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Decided, March 13, 2006, Judge Merritt’s dissent begins:

Lundgren testified that he killed a family of five cult members as a religious sacrifice. He did so, he said, because he received a command from God that this sacrifice was necessary to prepare for “Zion” and the “Second Coming.” I disagree with our Court’s decision and reasoning in section II.D.3. above rejecting Lundgren’s ineffective assistance of counsel claim based on trial counsel’s inexplicable failure to raise the defense of insanity. Other than insanity Lundgren had no defense. In many similar “deific decree” cases in which a “delusional” person like Lundgren professed to be following God’s command to kill, defense lawyers have almost uniformly entered an insanity plea — and the jury has accepted the defense in some of the cases. As we shall see, even the prosecutors in the case could not understand why Lundgren’s lawyers did not enter such a defense. I will also apply Ohio’s definition of insanity in light of a mental illness theory counsel overlooked in bypassing his only available defense. I will then show why, in light of these considerations, the conduct of Lundgren’s counsel was manifestly ineffective. The writ of habeas corpus should have issued in this case to require a new trial in which Lundgren would be allowed to present the insanity defense before the jury.

The dissent then continues by listing a variety of deific decree insanity defenses over the past 200 years:

State v. Lafferty, 2001 UT 19, 20 P.3d 342, 363 (Utah 2001) (Mormon fundamentalist, who killed his sister-in-law and her infant child pursuant to God’s “removal revelation,” presented insanity defense to jury);

People v. Coddington, 23 Cal. 4th 529, 97 Cal. Rptr. 2d 528, 2 P.3d 1081, 1103, 1110-14 (Cal. 2000), overruled on different grounds by Price v. Superior Court, 25 Cal. 4th 1046, 108 Cal. Rptr. 2d 409, 25 P.3d 618, 633 n.13 (Cal. 2001) (defendant presented insanity defense to jury after strangling chaperones of two girls he sexually abused professedly because God commanded the actions);

State v. Blair, 143 N.H. 669, 732 A.2d 448, 449-50 (N.H. 1999) (counsel presented insanity defense to jury in case in which husband bludgeoned his wife and son with a hammer after experiencing a “trance” in which God revealed that he would be cast into the lake of fire if he refused to do so);

People v. Serravo, 823 P.2d 128, 130 (Colo. 1992) (en banc) (jury found defendant not guilty by reason of insanity for stabbing his wife “in order to sever the marriage bond” in accordance with God’s purported instructions);

State v. Ryan, 233 Neb. 74, 444 N.W.2d 610, 632 (Neb. 1989) (cult leader entered plea of not guilty by reason of insanity after following Yahweh’s “command” to torture and kill an “unfaithful” cult member);

Laney v. State, 486 So. 2d 1242, 1245-46 (Miss. 1986) (defendant shot police officers because God purportedly commanded the act and presented insanity defense to jury);

State v. Cameron, 100 Wn.2d 520, 674 P.2d 650, 654 (Wash. 1983) (en banc) (jury question regarding insanity defense existed when defendant implemented God’s “command” to stab repeatedly his stepmother to stop the “evil spirit” within her);

State v. Malumphy, 105 Ariz. 200, 461 P.2d 677, 678 (Ariz. 1969) (defendant, who shot and killed two co-employees due to his belief that God sanctioned the deeds, presented insanity defense to jury);

State v. Di Paolo, 34 N.J. 279, 168 A.2d 401, 407-08 (N.J. 1961) (defendant repeatedly stabbed ex-girlfriend because God professedly commanded the actions and presented insanity defense to jury);

People v. Schmidt, 216 N.Y. 324, 110 N.E. 945, 945, 34 N.Y. Cr. 51 (N.Y. 1915) (defendant, who claimed God commanded him to kill a woman as a sacrifice, presented insanity defense to jury);

State v. Hudson, 1999 Tenn. Crim. App. LEXIS 144, No. 01C01-9508-CC-00270, 1999 WL 77844, at **1, 8 (Tenn. Crim. App. Feb. 19, 1999) (appellate court remanded for entry of a judgment of not guilty by reason of insanity in case in which defendant shot her one-month-old nephew, believing that God had instructed her to kill “the son of Satan”);

State v. McDaniel, 1998 Ohio App. LEXIS 6122, No. 18805, 1998 WL 887184, at **2-3 (Ohio Ct. App. Dec. 16, 1998) (defendant, after experiencing religious delusion that God commanded him to kill his wife with a baseball bat, presented insanity defense to jury);

Ivery v. State, 686 So. 2d 495, 499-503 (Ala. Crim. App. 1996) (defendant, who claimed to be the “ninja of God” and to have followed God’s command “to kill people at will and to take their money as the spoils of victory,” presented insanity defense to jury);

People v. Wilhoite, 228 Ill. App. 3d 12, 592 N.E.2d 48, 55-58, 169 Ill. Dec. 561 (Ill. App. Ct. 1991) (court found defendant not guilty by reason of insanity after she followed God’s “command” to shove her nine-year-old daughter out of apartment window to pass “a test to see if the defendant could get into heaven” prior to the imminent end of the world);

Perkey v. Cardwell, 369 F. Supp. 770, 770-74 (S.D. Ohio 1973), aff’d, 492 F.2d 1244 (6th Cir. 1974) (defendant claimed he was carrying out God’s orders by shooting victim and entered plea of not guilty by reason of insanity);

United States v. Guiteau, 10 F. 161, 186 (D.D.C. 1882) (defendant alleged he was following God’s command to kill the president and presented insanity defense to jury);

Elizabeth Mehren, Fellow Inmate Guilty of Murdering Ex-Priest, Los Angeles Times, Jan. 26, 2006, at A15 (Massachusetts inmate, who claimed God commanded him to kill defrocked priest, presented insanity defense to jury);

Mom Who Killed Kids with Rocks Committed to Mental Hospital, Chi. Trib., Apr. 7, 2004, at 8 (Texas jury found mother innocent by reason of insanity after she stoned two of her young sons to death with heavy rocks professedly in accordance with God’s instructions); Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 508 (1985) (jury acquitted defendant who pled insanity defense following attempted shooting of the king of England purportedly at God’s direction);

cf. State v. Wilson, 242 Conn. 605, 700 A.2d 633, 641 (Conn. 1997) (“An individual laboring under a delusion that causes him to believe in the divine approbation of his conduct is an individual who, in all practicality, is unlikely to be able fully to appreciate the wrongfulness of that conduct.”).

With footnote #1

I am aware of only a few deific decree cases in which the insanity defense was not presented. In one of them, the failure to do so was held to constitute ineffective assistance of counsel. Galloway v. State, 1985 OK CR 42, 698 P.2d 940, 942 (Okla. Crim. App. 1985) (defendant, at the professed direction of God, “drove demons out” of his neighbor by killing him). In another, the defendant represented himself. Jon Krakauer, Under the Banner of Heaven xxii-xxiii (large print ed. 2003) (Mormon fundamentalist killed his sister-in-law and her infant child pursuant to God’s “removal revelation”). The brother of the aforementioned defendant declined to raise the insanity defense in his first trial because he believed the jury would interpret that defense as an admission of guilt, but, in his retrial, allowed counsel to present the insanity defense. State v. Lafferty, 2001 UT 19, 20 P.3d 342, 363 (Utah 2001); State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988). In addition, prosecutors wondered why some of Lundgren’s followers did not raise the insanity defense. See Cynthia Stalter Sasse & Peggy Murphy Widder, The Kirtland Massacre 273 (1991).

And so here, the word “ninja” is actually a reference to another case entirely. That case was in an Alabama criminal court. Again, in that case, and in this citing case, we see “ninja” in a case related to murder and religion.

Ultimately, the higher courts did not agree with Judge Merritt’s dissenting analysis (though a stay of execution was at one point temporarily ordered) and Jeffrey Lundgren was executed by the State of Ohio on October 24, 2006. The final clemency report can be read, with eight signatures recommending denial of clemency and explaining further details about his case. May the ninja gods have mercy on their souls.

This 1996 case is about a Buddhist prisoner (convicted of murder and sentenced to life in prison) who claims violations of his First Amendment right to practice his religion while in Michigan prison.

TEMUJIN KENSU, Plaintiff, V. DAVID CASON, JR., et al., Defendants.
Case No. 1:91-CV-300
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
1996 U.S. Dist. LEXIS 5468

Decided – March 29, 1996

The Court explains:

While plaintiff’s claims might be succinctly characterized simply as free exercise and retaliation claims, in reality his grievances impact on virtually all aspects of the terms of his confinement. His claims involve the recognition of his religion and the right to individual and corporate practice; the availability of Buddhist books or literature in the prison libraries and visiting rooms; the composition of the Chaplains Advisory Council; shake-downs on visitations; the MDOC policy on assuming religious names; transfers to impede his ability to practice his religion and/or in retaliation for grievances filed in connection with his right to practice his religion; name-calling by prison guards; surveillance of plaintiff and his visitors in prison visiting rooms; prison newspaper publication policies; security reclassifications based upon or in retaliation for his exercise of his religious rights; cell assignments, mock pack-ups of prisoner property; the availability of tallow-free soap and hair conditioner; the composition of religious task forces; the right to sleep on the floor notwithstanding prison count policy; approval of religious vendors; the availability of protein tablets to supplement a meat-free diet; and the availability of an extensive amount of religious items and clothing.

The court notes that:

Plaintiff is also trained in several martial arts. He testified that he has a brown belt in Japanese karate and a black belt in Korean Tae Kwon Do. He admitted that he was referred to as the “Ninja Assassin” in his trial and that he had discussed his interest in the martial arts with various prison guards. Although plaintiff contends he is a pacifist, he testified that there had been at least 15 attacks on him by inmates at various prisons.

And that:

Plaintiff’s complaints about harassment were corroborated by inmates Andrew Trombley, Patrick Brown, Robert Harris and Jeffrey Terry. Mr. Trombley testified that Buddhists were not permitted to pray at meals and they were threatened with a major misconduct by the guards. Mr. Brown testified that Buddhists were called Ginsu knives and Ninja warriors by the guards at Muskegon. He also testified that Buddhists were subjected to general harassment, including mock pack-ups, pat downs, reviews of their identification and shake-downs. Mr. Harris testified that Buddhists were shaken down and harassed by guards when reading in a group. He also contended he had been denied parole three times due to his religion. Mr. Terry testified that Buddhists were called Buttyists by prison guards.

Analysis under RFRA, most of the plaintiff’s claims were denied (including denying claims for better vegetarian food options, protein supplements, soap made without animal products, chopsticks, and extra blanket to sleep on the floor, among others) but the Court did find one violation of his rights:

defendants’ policy, practice or custom of prohibiting all use by plaintiff of a simple altar and incense in his practice of Buddhism is a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. Because the use of an altar and incense is fundamental or central to the exercise of plaintiff’s religion, and because defendants have failed to show that outright prohibition of such items is the least restrictive means of serving defendants’ legitimate penological objectives, defendants must either allow plaintiff to possess and use an altar and incense in his cell or must offer him the opportunity to use such items regularly in a designated location in the prison facility on terms comparable to those on which members of other religious groups are permitted to participate in religious rituals and ceremonies.

Therefore, as a prevailing party, the plaintiff’s attorney fees were paid. Still most of his complaints were denied.