Nevers v. Killinger
| Decision Date | 30 December 1997 |
| Docket Number | No. 97-CV-75175-DT.,97-CV-75175-DT. |
| Parties | Larry NEVERS, Petitioner, v. George KILLINGER, Warden of FMC Fort Worth, Fort Worth, Texas; Kenneth McGinnis, Director of the Michigan Department of Corrections Michigan Department of Corrections, Respondents. |
| Court | U.S. District Court — Eastern District of Michigan |
Neil H. Fink, David A. Koelzer, Birmingham, MI, for Larry Nevers.
Olga Agnello-Raspa, Timothy A. Baughman, Wayne County Prosecutor's Office, for George Killinger.
This matter is before the Court on Petitioner's Request for a Writ of Habeas Corpus. Respondent filed a response, and Petitioner has elected not to reply. On December 22, 1997, a hearing was held at which the Court heard oral argument from both parties. For the reasons set forth below, Petitioner's Request for a Writ of Habeas Corpus is granted.
The facts of this case have been recounted numerous times and need not be repeated in their entirety. Therefore, only a brief overview of pertinent facts is required for the purposes of this Court's opinion. Petitioner Nevers (hereinafter "Petitioner" or "Nevers") was a police officer with the Detroit Police Department. He was on duty with former Detroit Police Officer Walter Budzyn (hereinafter "Budzyn") when the incident occurred that resulted in Malice Green's (hereinafter "Green") death. Both were tried and convicted by different juries in Detroit Recorder's Court.
At approximately 10:15 p.m. on November 5, 1992, Petitioner was patrolling in the City of Detroit in plain clothes and in an unmarked car with Budzyn. They observed a Topaz, driven by Green with bullet holes in the front passenger door. Petitioner testified that he saw the car pull up in front of a house known for drug activity. The house was occupied by Robert Fletcher (hereinafter "Fletcher"). Robert Hollins (hereinafter "Hollins") and Teresa Pace (hereinafter "Pace"), witnesses to the event, were present at Fletcher's house and had been smoking cocaine that evening. Budzyn and Nevers stopped the Topaz to investigate. Budzyn testified that he saw Robert Knox (hereinafter "Knox") running next to the building and chased him because he believed that Knox was in the car with Green. Budzyn eventually caught up to Knox and patted him down for weapons. He also patted down Fletcher, who had been in the car with Green. Petitioner asked Green for his driver's license. Green did not respond to Petitioner's request but walked around to the passenger side of the car and got in. Budzyn followed him and again asked Green to see his driver's license. After Green opened the glove compartment, something fell to the floor of the car. Green grabbed it and Budzyn asked him to let go of what was in his hand. Green refused.
At this point, there is substantial disagreement in the testimony given by defendants and that given by the civilian witnesses to the incident, Brown, Knox, Pace, and Hollins. The five civilian witnesses testified that after Green refused to open his hand, Budzyn began to hit him on the hand with the police flashlight in an effort to force him to open his hand. According to the civilian witnesses, Budzyn then climbed on top of Green who did not comply with orders to open his hand. Fletcher and Pace testified that although they did not see the blows land, from the position on which Budzyn was straddling Green, he must have been hitting him on the head.
The five witnesses also testified that while Budzyn was struggling with Green in the car, Petitioner struck Green on his knee several times. Brown and Fletcher then testified that petitioner went around the car to the driver side, opened the door and struck Green in the head with his flashlight.
In contrast to the civilian testimony, Petitioner testified that he assisted Budzyn when Green resisted Budzyn's efforts to open his hand. Petitioner explained that he only hit Green on the knees after Green kicked his knees up to stop petitioner from prying open his hand. Petitioner then went to the other side of the car after Budzyn told him that Green was trying to escape out the driver's side. Petitioner testified that he only struck Green in the head after Green grabbed for his gun and stopped hitting after Green let go of his gun. Petitioner flagged down an Emergency Medical Service (hereinafter "EMS") vehicle which happened to be driving by. During the struggle with Green, Petitioner testified he saw something "shiny" in Green's hand. Petitioner again struck Green on the head, fearing that the shiny object was a razor blade or knife. Petitioner admitted that during the struggle, he struck Green on the head five or six times with his flash-light.
The EMS workers arrived in two vehicles. Albino Martinez (hereinafter "Martinez") and Mithyim Lewis (hereinafter "Lewis") arrived first followed by Lee Hardy (hereinafter "Hardy") and Scott Walsh (hereinafter "Walsh"). In response to an Officer in Distress call made by either Petitioner or Budzyn, several marked police cars arrived soon after the EMS vehicles. All four of the EMS workers testified that Petitioner struck Green in the head repeatedly even though Green was not offering any significant resistance. Martinez and Walsh testified that Petitioner ordered Green to sit still and open his hands and when he did not, petitioner struck him with the flashlight. Martinez and Lewis testified that Petitioner hit Green four times with the flashlight, while Hardy testified that Petitioner hit Green approximately ten times in the head. Green finally released the car keys he held in one hand and a piece of white paper used for rolling rock cocaine, he held in the other hand. The uniformed officers then handcuffed Green as he continued to struggle. The EMS workers began rendering care to Green. Green suffered a seizure and, soon after, died.
The people presented Dr. Kalil Jiraki (hereinafter "Dr. Jiraki"), an assistant Wayne County Medical Examiner, who testified that Green died from blunt force trauma to his head and that he suffered at least fourteen blows to the head. Dr. Jiraki also explained that Green had .5 micrograms of cocaine in his system, indicating he was under the influence of cocaine at the time of his death. Dr. Jiraki testified that the cocaine had no bearing on Green's death. In response, defendants presented three pathologists, each of whom testified that the cocaine played a greater role in Green's death.
Petitioner was charged with second-degree murder along with Budzyn. A barrage of media publicity began immediately after the incident and continued unabated until the trial began. The incident occurred soon after a suburban jury acquitted four white Los Angeles police officers who had been videotaped beating black motorist Rodney King. The acquittal set off a riot in Los Angeles that drew national attention. The media frequently compared the Green incident to the events in Los Angeles. The Detroit Police Department fired all of the officers at the scene before trial and before any investigation.1 The City of Detroit almost immediately agreed to a multimillion dollar settlement with Green's estate. In response to criticism about the settlement, a city attorney stated that the generous settlement might spare Detroit from the same type of riot that burned Los Angeles.
Defendants moved to sever the trials. The trial court refused to separate the proceedings, but did grant defendants' motion for separate juries. Petitioner asked for a change of venue because of the extensive and prejudicial pretrial publicity. However, the trial court denied his motion. The trial court began the voir dire on June 2, 1993 and the trial began on June 18, 1993. During a recess near the end of the trial, the trial court provided the juries with a number of videos to watch during the time they were not in court. One of the movies provided was Malcolm X. The film begins with the video of the Los Angeles police officers beating Rodney King. The video of the beating is replayed eight times while a speech by Malcolm X is heard in the background. Defendants moved for a mistrial on this basis, but the motion was denied.
The trial lasted for approximately seven weeks and was televised gavel to gavel on Court TV. The television coverage included daily commentary by various "legal experts."2 The juries began deliberating on August 13, 1993. After nine days of deliberations, the jury convicted Petitioner of second-degree murder. The jury also convicted Budzyn of second-degree murder after eight days of deliberations. Petitioner was sentenced to twelve to twenty-four years in prison and Budzyn was sentenced to eight to eighteen years. Defendants moved for a new trial, but the trial court denied this motion.
On appeal, the Michigan Court of Appeals consolidated the defendants appeals and affirmed the convictions in an unpublished opinion per curiam, issued March 22, 1995. Petitioner filed his Application for Leave to Appeal in the Supreme Court of Michigan in April, 1995. The Michigan Supreme Court took over one year to decide whether to hear the appeal and finally granted leave on May 7, 1996. After deciding to hear the appeal, the Supreme Court took another year to decide the case. Twenty-seven months after the appeal was filed, the Supreme Court issued an opinion on July 31, 1997. In People v. Budzyn, 456 Mich. 77, 566 N.W.2d 229 (1997), the court reversed Budzyn's conviction and remanded his case for a new trial. The Supreme Court found that the constitutional rights of both Petitioner and Budzyn had been violated. However, the Supreme Court affirmed Petitioner's conviction because they found overwhelming evidence of his guilt. Id. at 108, 566 N.W.2d at 243.
After exhausting state remedies, Petitioner filed a Request for a Writ of Habeas Corpus under 28 U.S.C. § 2254 on October 8, 1997.
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