Wrongful Conviction, Unequal Compensation
Posted on 15. Jul, 2009 by Clark Merrefield in News Features
By Clark Merrefield
In March 1996, a bodega clerk scanned a lineup of suspects at a police station in Astoria, a neighborhood in the New York City borough of Queens. Two armed men in ski masks had robbed his nearby store. The clerk recalled glimpses of light black skin behind one mask, though he hadn’t seen either robber’s face.
He picked out John Scott, a construction worker. Scott later testified he was nowhere near the store. The clerk conceded at trial he was uncertain Scott was one of the robbers. Despite the clerk’s reversal, Scott was sentenced to 25 years in jail.
Scott languished in jail four years before an appeals court threw out the conviction.
For his troubles, Scott sued the state under a special law for those wrongfully convicted—a statute written to fulfill a “moral demand” to compensate those who needlessly lost years of their lives behind bars.
It took Scott 6 years to prevail under the law after he was released. He got $25,000 in compensation for each year he lost in jail.
A review by the New York City News Service shows that the state’s legal system shortchanged Scott and that there is a wide disparity in payments for the wrongfully convicted.
In the past ten years, 22 people have been compensated under the state’s law. Lawyers who have handled multiple cases in the system said they believed it doled out payments at an even rate.
But state records show Scott got more than ten times less per year in jail than the person at the upper end of the scale.
Then there are those who fared even worse than Scott—and got nothing.
The wrongful conviction compensation law, passed in 1984, includes several complex provisions so that at least one man exonerated by DNA testing was deemed ineligible for payments.
In another case, a wrongfully convicted woman spent 25 years in prison before key evidence against her was discredited. Her wrongful conviction compensation claim was denied.
And in some cases, the wrongfully convicted got compensation by circumventing the state system altogether.
But despite its drawbacks, the New York State law has some advantages over other state laws.
THE JOHN SCOTT CASE
To best understand the system and its problems, it pays to look closer at the details in the Scott case.
On March 21, 1996, two men wearing black ski masks entered a Queens bodega. Guns drawn, the taller robber demanded cash from William Vizcarrondo, who was working the register.
The robber demanded Vizcarrondo’s jewelry and a pack of cigarettes, and then left with his partner.
John Scott was brought in a week later to the 114th Precinct in Queens as a suspect in an unrelated investigation involving a shooting. He was acquitted on that charge. While there, police asked Scott to be part of a lineup in the bodega robbery investigation. Scott consented.
Vizcarrondo looked at the men arrayed against the wall. He recalled glimpses of the taller robber’s light black skin and his deep voice. Scott fit the man he remembered.
But Scott, a part-time construction worker, wasn’t the taller robber. He wasn’t even in Queens at the time. He was watching television with friends in Manhattan.
During the trial, Vizcarrondo conceded that because the men wore masks, there was no way he could be sure Scott was one of them; witness misidentification is not uncommon in wrongful conviction cases. Still, the jury convicted Scott.
Four years into a 25-year sentence, Scott’s case was reopened before the Second District Court of Appeals.
“The chief witness for the People in this case made no visual identification of the defendant at trial, and conceded his inability to do so,” Judge Lawrence J. Bracken wrote. “This witness also made no in-court identification of the defendant based on his presumed ability to recall the supposedly distinctive voice of the tall robber.”
Scott was free.
Scott then made a wrongful imprisonment compensation claim, something that is possible in 26 states.
“The whole reason that this wrongful conviction statute was enacted in New York was to try to make it quicker and easier, and more certain, for people who it’s quite clear have been wrongfully convicted, and have been exonerated, to get some money,” said Adele Bernhard, a law professor at Pace University who has studied New York’s wrongful conviction compensation statute.
Under the statute a judge reads the facts in the case and, if the lawsuit is appealed by the state—many are—the judge determines whether the facts fit the law’s criteria. If it does, the state tends to settle the claim rather than proceed with a potentially lengthy trial.
In Scott’s case, instead of going to trial, the sides settled for $100,000—an average of $25,000 for every year Scott spent in jail.
Bernard and other attorneys said that while the state law has no explicit provision for evenhanded payments, considering such factors as a person’s income and potential career trajectory, they believe the payments have been about the same—around $100,000 per year of incarceration.
But at $25,000 per year incarcerated, Scott got one of the lowest average payouts in the past ten years.
James O’Donnell, for instance, was wrongfully convicted in the late 1990s of sodomy and spent two years in jail, half the time of Scott. Yet in 2006 he settled to get $150,000 for each year in jail.
Robert McLaughlin, wrongfully convicted of murder and robbery in 1981, spent six years in jail before he was exonerated. In 1989 he was awarded $1.9 million—more than $300,000 per year he spent in jail.
Settling out of court tends to result in slightly less money. Settlements resulted in a median of about $82,000 per year of incarceration for the 29 cases in which the number of years the wrongfully convicted person spent in jail could be determined.
Awards—where the case goes to trial and a judge decides the final amount—resulted in a median of just over $86,000 per year of incarceration.
Yet in the past decade only one case has gone to trial. The other eighteen cases during that period have been settled out of court.
Lawyers interviewed said that if a claim has merit, settling is simply less time consuming and less costly for the claimant and for the state, and that there was once a cap on settlements.
BIRTH OF A WRONGFUL CONVICTION LAW
Before 1984, most wrongful conviction claims were nearly impossible to secure. They required special legislation signed by the governor. From 1947 to 1984, five wrongfully convicted people received awards from the state, ranging from $7,000 to $1 million.
Then came the case of Isidore Zimmerman, which captured headlines and spurred public debate.
Zimmerman, a Columbia student convicted of killing a police detective in 1947, filed one of the state’s most well known unjust conviction claims during that time.
After serving 25 years in prison, an appeals court ruled in 1962 that prosecutors suppressed evidence pointing to Zimmerman’s innocence, and he was freed.
Zimmerman then made several unsuccessful attempts to recover damages. Finally, Governor Hugh Carey signed special legislation in 1981 that allowed Zimmerman to sue the state.
Zimmerman was awarded $1 million by the Court of Claims in 1983, an average of $40,000 for each year he was incarcerated. A year later, Zimmerman died of a heart attack at age 66.
His case, among others, led Governor Mario Cuomo to request that the New York State Law Review Commission draft a wrongful conviction compensation law. The resulting report says “morality demands” that the state compensate the wrongfully convicted, but it does not say much a year in prison might be worth.
“Few occurrences are more tragic than the conviction and imprisonment of a person for a crime he did not commit,” the report says. For a wrongfully convicted person, money is, “the most viable method of assisting him to recoup what he lost.”
“By imposing financial liability upon the State, recognition is given to a proposition that would seem to be self-evident, namely that it is the State’s obligation, and no one else’s, to do what justice and morality demand when an innocent person is convicted of a crime he did not commit,” the report says.
The commission identified four basic criteria for wrongful conviction claims: a person must have been convicted and incarcerated; that conviction must have been overturned or vacated; the convicted person must be able to prove his innocence; and, he must not have contributed to his conviction by his own conduct, for instance, by confessing to police.
Since the law was enacted in 1984, at least 250 compensation claims have been filed, resulting in 15 awards and 27 settlements totaling nearly $24 million in payments.
HOW AWARDS ARE MADE
Many of the cases that went to trial are not easily available, but one case that is available provides some insight into the judge’s thought process.
Terrence Ferrer filed a claim after he was exonerated of a Bronx murder in 1984. He spent about 12 years in prison.
“I tried Ferrer because you couldn’t settle for more than $50,000 in those days,” said Ferrer’s attorney, Irving Cohen, who has represented people in roughly a dozen wrongful compensation claims.
At trial, Cohen called an economic expert to estimate Ferrer’s foregone earning potential. Ferrer was awarded a Master’s degree in prison and expressed interest in getting a law degree. The expert found Ferrer would have earned a total of $1.58 million in past and future wages alone.
Judge Robert Abrams disagreed. He mentioned Ferrer’s past employment at fast food restaurants, though not how much Ferrer earned. The judge said there was no way of knowing whether Ferrer’s employment goals would have been met.
But Abrams was much more sympathetic to the stigma attached with a prison term.
“It is as if a man’s life has been terminated at one point and then resurrected later; yet with all the intervening traumas, dangers and injuries that will endure, linger and become a permanent part of his life,” Abrams wrote.
For past wages, the judge awarded $135,000, roughly $11,250 per year incarcerated. For the loss of future earning capacity, Abrams awarded $225,000, without explaining how he arrived at the amount.
The remainder of Ferrer’s $1.56 million award was for mental anguish and loss of reputation.
At age 43 Ferrer died of a heart attack.
THE NATIONAL LANDSCAPE
New York’s compensation law does have some distinct advantages compared with the rest of the country. The Court of Claims may award any amount—there is no floor or ceiling.
Federal claims, meanwhile, are capped at $100,000 per year of incarceration for plaintiffs sentenced to death, and $50,000 per year of incarceration for all others.
In Montana, people wrongfully convicted of a felony who served time are entitled only to financial aid toward education at state colleges.
In Missouri, only those who are found wrongfully convicted by DNA evidence may apply for restitution, at a limit of just over $18,000 per year of incarceration. A wrongfully convicted person is barred from civil lawsuits if he makes a claim under that law.
The New Jersey law creates a floor of $20,000 for each year incarcerated, making it one of the few states that has a minimum award. The maximum is twice the yearly salary of the person the year before he was convicted.
Awards in Massachusetts are limited to $500,000, but the court may also order the state to provide physical and emotional health services, and half-off tuition at state universities.
And in North Carolina, awards are capped at $750,000, but job training and tuition reimbursement may also be awarded.
In New York, innocence must be shown by clear and convincing evidence—not the lowest burden of proof, but also not the highest. In contrast, claimants in Connecticut need only show a preponderance of evidence, the lowest burden of proof.
Once a New York claimant proves his innocence he has a good chance of winning an award or reaching a settlement. In a way, the case is decided before it is accepted by the court.
“It’s an odd statute that way, but I understood why they did it,” Cohen said. “But, I think if the case is reversed or thrown out on any ground you should be able to bring the lawsuit and let the judge decide early on.”
“There are going to be people prevented from suing,” he added.
UNABLE TO SUE
In 1973, Betty Tyson was a 25-year-old drug addict and prostitute working the streets of Rochester.
In December that year, a consultant to the Eastman Kodak Company soliciting prostitution was found strangled in an alley.
Tyson was convicted of the murder based on two eyewitness accounts. There was no physical evidence linking her to the crime.
After more than two decades in prison, Rochester media and activists took up Tyson’s case. By 1998, Betty Tyson was free—but her $12.5 million wrongful conviction claim was denied.
That’s because her conviction was reversed based on police misconduct. The police had withheld evidence that showed to her innocence. But prosecutors did not retry her case, and Tyson was never acquitted.
Even as he upheld the state’s appeal of Tyson’s suit, Court of Claims judge Donald Corbett wrote that her case highlighted problems with the New York law.
“The Legislature, in its wisdom, has placed a high threshold upon those seeking recompense under this statute, and unfortunately for Betty Tyson, her claim cannot surmount that limitation,” Corbett wrote. “So, unfortunately for Betty Tyson, there can be no recovery here, and no opportunity for her to prove her innocence, perhaps her ultimate goal. Regardless of whether this decision survives appellate scrutiny, the Legislature may wish to revisit this ‘structurally complicated statute.’”
There has been only one legislative update to the statute since it was passed. “Anthony’s Law” named for Anthony Capozzi, a wrongfully convicted man who was exonerated by DNA evidence after more than 20 years in prison, gives docket priority to compensation claims in which innocence is proven through DNA evidence.
WHEN SCIENCE FAILS
Deoxyribonucleic acid (DNA) contains the genetic code that convicts criminals and sets the innocent free.
But when New York’s compensation law was passed, DNA technology was in its infancy. If a person confessed to a crime, he probably did it, the thinking went.
“One of the things we’ve learned is that people can be innocent and still confess,” said Adele Bernhard, the Pace professor.
That’s exactly what Douglas Warney did when he confessed to a stabbing murder in Rochester in 1996.
Warney’s knowledge of the crime scene ultimately led to his conviction. He knew the layout of the murder victim’s house, according to court papers. He knew what the victim was cooking. When an officer asked how he was doing, Warney said, “not good…I got a body.”
He was convicted on the strength of his unrecorded confession—though blood found at the scene did not match his, or the victim’s.
Ten years later, DNA testing matched that blood and other physical evidence to Eldred Johnson, who was already in prison for a similar murder. Johnson confessed to the crime, and Warney was freed.
Earlier this year, Warney sued the state for wrongful conviction compensation. Despite the DNA evidence, his $10 million claim was denied.
“There is no doubt that this confession contributed to [Warney’s] conviction,” Court of Claims Judge Renee Forgensi Minarik wrote. “[Warney] argues, however, that because his confession contained information that [he] could not possibly have known, his confession was obviously the product of misconduct and coercion on the part of the police officers that secured it.”
Judge Minarik decided that Warney did not provide substantial evidence of coercion. She decided that Warney had contributed to his own conviction and that, by law, he was not entitled to compensation.
When Warney was released in 2006, news reports elaborated on his psyche and pointed to a different conclusion. They pointed to a man who was, at the least, confused when he confessed.
Warney had AIDS-related dementia, an eighth-grade education, and an IQ of 68, according to the news reports. He claimed he was ill when he confessed. Several points in his confession were patently untrue—at one point he said he’d used his brother’s car that day, a car the brother gave up six years before the murder.
THE CIVIL ROUTE
But compensation through the state law is not the only means for the wrongfully convicted to recover money. If there is evidence of a civil rights violation the wrongfully convicted may successfully file a civil rights lawsuit.
Although the Court of Claims process is streamlined compared to the civil route, attorney Joel Rudin complained that in the Court of Claims, “you have a trial in front of a single judge paid by the State of New York.”
Awards in civil suits are decided by a jury, and damages tend to be higher than in the Court of Claims, Rudin said. The burden of proof in civil cases is also lower—the claimant does not have to clearly and convincingly prove his innocence.
In 2003, Rudin helped secure a $5 million settlement for Albert Ramos, who spent seven years in jail on a rape conviction that resulted from prosecutorial misconduct. That settlement is far higher than any of the settlements or awards under the state’s wrongful conviction law.
Betty Tyson, the former prostitute and drug addict, got $1.2 million in 1998 by filing a civil rights suit against the City of Rochester.
In 1989, five teenagers from Harlem admitted to beating and raping then-Salomon Brothers employee Trisha Meili in Central Park. The teenagers, aged 14 to 16, were all convicted and sentenced to prison.
But the confessions, four of which were videotaped, were coerced, and DNA evidence found at the scene matched none of the boys’.
The confessions were secured using, “force and trickery, sleep deprivation and isolation from their families,” according to court documents.
The DNA evidence matched that of Matias Reyes, who was in jail for a separate rape and murder. The boys were not fully cleared until Reyes confessed to the crime in 2002.
The wrongfully convicted men and their families have since filed a $250 million federal civil rights lawsuit against the police and prosecutors who arrested them and tried their case.
At least one of the exonerated men, Yusef Salaam, has also filed a compensation claim with the Court of Claims. His lawyer, Myron Beldock, said it would “complicated” to win damages under the state’s wrongful conviction law because Salaam and the others made false confessions.
“We decided to bring both cases,” Beldock said. “There are a lot of reasons why, but that is something I would consider confidential.”
He added, “If we recover full damages in the civil rights case there is no reason to go back,” to the Court of Claims.
LEFT WANTING
For more than a decade, Michael Clancy’s life was reduced to confinement and routine. He was convicted in 1999 of a murder in the Bronx that witness testimony would later show he didn’t commit.
“Every morning I woke up and I saw those bars, and that was my greeting every morning,” Michael Clancy said. “Every morning I’d wake up, I would sit up, I would look up—and there they are. And that’s what I went through for 11 years.”
Clancy didn’t know what to do when he was released. He didn’t know how to establish credit. He didn’t know how to get a state ID.
“Thank God” his lawyer was waiting for him outside, Clancy said, because he didn’t even know how to use a Metrocard.
State-funded programs to help ex-convicts readjust to life outside of prison were unavailable to him. Their money was reserved for people who had actually committed crimes, Clancy said.
Indeed, no social services, such as job and readjustment training, were awarded to those wrongfully convicted in any of the cases reviewed for this article.
“They didn’t have a system for a person who was found innocent,” he said.
Clancy is doing well for himself now. He has an apartment, owns an Ipod, and says he bought an $8,000 bed.
But in a way, Clancy was lucky. His sister was able to support him after his release, and his union, the International Union of Elevator Constructors, offered him work immediately.
“They welcomed me with open arms,” Clancy said. “They said, ‘listen, you’ve been through so much the least we can do is at least give you an opportunity to prove yourself.’”
“People in my position, I hate to say, usually don’t get a break. A lot of these people, even though they’re found innocent, there’s always a question in the back of an employer’s mind, you know? This guy’s been in jail for this amount of time, you know? What did that do to him?”
On the advice of his lawyer, Clancy wouldn’t say whether he would file a claim under New York’s wrongful conviction law.
Additional reporting by Steven Bronner, Joshua Cinelli, Dan Macht, Rosaleen Ortiz and Matt Townsend.
18 Responses to “Wrongful Conviction, Unequal Compensation”
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July 16, 2009
[...] Wrongful Conviction, Unfair compensation 219 Magazine July 15, 2009 [...]
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July 16, 2009
[...] Merrefield, along with fellow CUNY graduate students, analyzed New York state’s compensation program for those found to be wrongfully convicted. Their findings showed that it takes years for recipients to receive their compensation, and the [...]
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July 27, 2010
[...] Rosaleen Ortiz, Dan Macht, Joshua Cinelli, Matt Townsend, and Steven Bronner won for their story Wrongful Conviction, Unequal Compensation. The investigative report revealed how those wrongfully convicted of a crime in New York State and [...]
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May 17, 2011
[...] under the wrongful compensation statute, winning money is no slam dunk. Between 1984 and mid-2009, only 42 of 250 compensation claims resulted in awards or settlements. New York law sets a fairly high bar for compensation: The person [...]
Clark. Nice job. Hope all is well.
Great story, Clark. Nicely reported and told.
I was wrongfully convicted and won my appeal. I was Sentenced to 3-years to serve. I did 16-Months before I made parole. I want compensation for the courts error. Pain and suffering!! Please call 404-622-1604.
can you help me with an attorny to help with my wrongfull conviction
Lee-
Contact the Innocence Project. Good luck.
http://www.innocenceproject.org/about/Contact-Us.php
info@innocenceproject.org
212.364.5340
Just saw this via Dan Macht…great work, Clark, hope life is treating you well.
What about Frank Fratello, who is helping that absolutely innocent young man overturn and investigate his illegal.immoral conviction ??? LOOk him up
Frank Fratello of the Brox is innocent. Wiil you turn your back on him.
No one else can help him. the government is ve callous to his facts and the application of law to them
To whom it may concern
From: Buddy George (562) 201-9126
12016 gladhill ave. (562) 947-7356
La mirada ca 90638
(1) I was robbed and kidnapped 3 times behind sheriff deputies.
$80 million dollar claim is what to file for damages. Against the city of la mirada
Enclosed in this writing is information
Regarding my state and federal rights
Being violated. The following needs investigated to the full extent of the law.
0) deformation of character
1) a wrongful conviction that I can prove.
2) false imprisonment.
3) a right to a fair trial.
4) denied my due process.
5) harassment.
6) negligence.
7) officer misconduct.
9) cruel and unusual punishment.
10) all my constitutional rights both state and federal were violated.
11) the email enclosed in this writing is were evidence was destroyed 3 to 5 months before my trial. A case were three empty baggies were planted in our home.
12) I was denied to face my adverse witnesses we subpoenaed 5 officers only one showed up hakala was the head detective and the expert witness
Of course he also destroyed evidence 3 to 5 months before the trial.
13) the district attorney never perjured the detective when he lied.
14) the district attorney had me charged with strikes and prison priors that I did not have and it wasn’t until after the verdict did she admit her mistakes.
15) I suffered the burden of a long trial based on false allegations
16) our home was raided regularly practically daily.
17) the city of la mirada contracted a couple of deputies named Morris and tousey that ran around spreading rumors about me saying I was a drug dealer and a kingpin.
18)Morris and tousey stalked me.
19) Morris and tousey coaxed people on what to say in there police reports
All saying I sold them drugs.
20) hakala stated during trial he removed the drugs befor the pre search
Video because he had a dog when there was no dog.
21) the city of la mirada played a major role with all the corruption involved in a criminal proceeding.
22) I was robbed a kidnapped 3 times due to Morris and tousey telling everyone I was a drug dealer and a kingpin.
23) Morris and tousey and every cop that works for the city of la mirada instead of working any where els the city paid them to harass me.
24) I was not on parole nor probation when this case started.
25)the detective dident even have the evidence he claimed to have to get the search warrant on the first one.
26) there was a type-o- error in the second search warrant.
27) the detectives used the name of Walter Eugene Farris to get the 2nd search warrant and that guy has never been in our home.
28) Detective hakala broke state and federal laws by going through my confidential legal mail if you look in the minutes of my trial that the document
He used to identify me as living here was a document from a lawsuit not just a regular law suit it was a federal lawsuit and it was part of a u.s.c $1983 that was filed in the united stAted district court for the eastern district of california located at
501 ”I” St.
Sacramento, ca 95814
The proceedings of
Buddyleegeorge v.s copely.
United states magistrates judge
Peter A Nowinski
This legal mail he went through makes him committing a federal crime not even prison guards can even read it
Hakala admitted to it he clearly stated a lawsuit involving copely.
29) Henry salcido attorney at law out of long beach California had two retired district attorneys working for him that were overfimilararity with sheriffs and narcotics involved in my case that also had a secret meeting with the city of la mirada without our approval nor knowledge violating client and attorney privilege rights.
30)the city of la mirada was 100%
involved in my criminal case and I have evidence of it.
31) All of this happened after a incident involving a parole officer named verimontes that worked for public safety for the city of la mirada as well for the Santa fee springs parole department in the year of 2001.he was contracted by both at the same time.
32) this parole officer on a hearsay driving without a license that involved no police contact went around to every one of my neighbors showing them first my criminal past then my mug shots during my board of prison terms hearing he got caught lying 12 times under oath he was so pissed that after the commissioner let me come home
And I reported to parole he said your packing your shit your going back to Sacramento I wrote a 602 inmate appeal demanding that it be exhausted
The 602 charged him of deformation of character and racial profiling negligence harassment and more he was involuntarily moved from both jobs. He told me he would retaliate against me if I appealed him. he stated I work for la mirada public safety and the parole department I will use both jobs to get a petition with your neighbors to have you moved from la mirada.
33) there was so much evidence recorded against this agent were he lied under oath the bpt denied me a copy of the recorded hearing the tape was not suppose to be damaged for 120 days It was damaged in 3 days
He had no idea that I studied criminal and civil law for about 5 years specializing in u.s.c $1983″s
And writ of petition of habeas corpuses
And state and federal constitutional rights I was in the federal courts under pro per for 3 to 4 years I studied writs
And tort claims and ethics and regulations and penal codes even the rules and regulations CCR title 15. Including ADA and anything to do with civil litigation. Including criminal law.
34) I have evidence were the city of la mirada violated my state and federal constitutional rights by discrimination and harassment.
35) I have evidence that the detective staged a sales case. their was a cell phone on table that recorded the whole raid due to the fact steve out of la habra who’s mom is a commissioner recorded it.
36) I have proof of stalking involving sheriffs and detectives.
37) I have evidence were Morris and tousey and other law enforcement coaxed people on what to say in there police reports and I have a copy of all of them.
38) I have evidence were la mirada offered to buy our home at cost.
39) I have evidence were the city officials harassed me in every way involving everything from sheriffs to code enforcement and neighbors i know of every neighbor that called in with the intention to harass me.
40) there’s evidence of 2 narc cars parked in the front of the neighbors house that lives behind me and evidence
Of Morris and tousey in her back bedroom window stalking me.
42) there’s evidence were our car was impounded about 3 to 4 times costing us $1300 every time to get it out.
43) theirs evidence were law enforcement endangered children by their reckless driving especially Morris and tousey flying 60 miles an hour with the doors flung open just so they could rush the car only to find nothing because their never was anything.
44) law enforcement that worked in the city of la mirada along with detectives were only worried about keeping their contracts with the city.
45) their core values are suppose to be to serve and protect honesty and fairness integrity and respect but instead the all mighty dollar had them lying stealing cheating and abandoning their own self worth by breaking laws them selves if you don’t believe me look in their book on ethics trust me they violated their own rules including the laws that govern California.
The guilty parties involved.
1) The city of la mirada including mayor and other city counsel members and I have proof of that as well.
2) La mirada law enforcement that worked for the city the whole time this was all going on.
3) detective hakala. Out of Whittier police department.
4) detective Jerry Reyes out of Whittier.
5) district attorney kang that represented the people during my trial.
6) Morris and tousey out of Los angeles county sheriffs department
7) theirs pictures of Joe one of the retired district attorneys that work for Henry salcido attorney at law out of long beach shaking hands with narcotics department and sheriffs that were involved in my trial.
But if you don’t you should take a prison deal under the condition you move when you get out.
9) the la mirada sheriffs had knowledge of our home being broken into and vandalized on many different occasions and at one time some one drove a car through our garage door and we reported it the deputies showed no interest in the damage done to our home only had interest in my whereabouts with interest of harassing
all California state and federal government including
Me some more.
City members involved address and names and contact information
1) mayor Pete dames
2) mayor pro tem Steve jones
3) council-member. Gabe Garcia
4) council member. Hal malkin
5) council member. Susan Tripp
Email address citycontact@cityoflamirada.org
City of la mirada.
13700 la mirada blvd
La mirada ca 90638
City phone number (562) 943-0131
10) this has been sent to the following
1) congress
2) legislators
3) white house
4) state Capitol Sacramento
5) ethics committee
6) california state BAR
7) president of the united states
1) FBI
2) internal affairs
3) ombudsman
4) CIA
5) board of supervisors
These matters need to be investigated to the fullest extent of the law including state and federal regulations including ethics I guarantee everything enclosed is true and correct and if you take time to investigate you will find everything that is mentioned is true and correct.
Email below is from detective hakala to district attorney kang were the evidence had been destroyed 3 to 5 months before trial. Please consider thanks.
Buddy George – VA107160From: joanne alberry
View Contact To: LAURIE YTARTE —————–
————————————————————-
– Laurie,here is the email from the Detective
telling the court that all the property was
destroyed. Sorry about all of it. Feel free to mail
me any payments you can at my office address
4229 Main St Suite 4 Riverside CA 92501 I will
let you know when I find an attorney who will
take on a governemtn entity. good luck to you
and Buddy,Joanne ———- Forwarded message
———-From: Date: Fri, Sep 25, 2009 at 7:23
AMSubject: Fw: Buddy George – VA107160To:
joannealberry@gmail.com Hi Joanne, Per our
conversation, here is the email from Detective
Hakala confirming that the evidence was
destroyed. I will request that our matter be taken
off calendar today. Thanks. ———————-
Forwarded by Miriam Kang/DAUsers/NLADA on
09/25/2009 07:22 AM ————————— To:
cc: Subject: RE: Buddy George – VA107160 I
contacted our central property and the items
seized in the Buddy George case (408-15814-
0460-184) were dispoed on 05-29-09. Any other
questions just let me know. Eric ———————
———————————————————–
From: MKang@da.lacounty.gov
[mailto:MKang@da.lacounty.gov]Sent: Thu
9/24/2009 2:49 PMTo: Hakala, Eric J.Subject:
Buddy George – VA107160 Hi Detective Hakala,
Just as a reminder, please email me a letter
confirming that the the property booked into
evidence for this case has been disposed of and
the date of disposal. Thanks so much!
Sincerely,Miriam KangDeputy District
AttorneyTel: 562-807-7211
In regards to who ever reads this know that I’m not prejudice against law enforcement I believe and respect in there core values to serve and protect.
When I was younger I wanted to be apart of law enforcement if I had it my way I would serve in active duty
And participate with making the streets safer for communities and society at large. unfortunately due to my childhood past I am unable to do so
And my childhood dreams were ruined
Everyday I pray for the men and women who serve in active duty either law enforcement or military they have my commend them for their bravery and integrity I fully believe in what they stand for and respect their duties and I’m far from prejudice against them.
For information regarding the enclosed information contact la mirada city mayor and council members mentioned above.
P.s.
If you can not assist me please pass this on to some one that can
Thank you
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
JAMES W. SMOAK, )
PAMELA Z. SMOAK, and )
BRANDON HAYDEN, )
)
Plaintiffs, )
)
v. ) No. ________
) JURY DEMAND
ERIC HALL, MEAD MCWHORTER, )
BRUCE LAMB, ANGELA CHESEBRO, )
LAURIE GRAHAM, ROBERT E. )
TERRY, CITY OF COOKEVILLE, )
DAVID BUSH, JEFF PHANN, TIM )
MCHOOD, BRIAN BROCK, SHANON )
PICKARD, LIEUTENANT JERRY )
ANDREWS, )
)
Defendants. )
COMPLAINT
Come the Plaintiffs and for cause of action would state as follows:
I. INTRODUCTION
This action arises under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution; under federal law, specifically, 42 U.S.C. §§1983 and 1988; under the Tennessee governmental tort liability statutes; under Tenn. Code Ann. §29-20-101, et seq., and under Tennessee common law for intentional and/or negligent infliction of emotional distress, conversion, loss of companionship, negligence, negligent supervision, gross negligence, assault, false imprisonment, false arrest, and civil conspiracy.
While the individual Defendants were acting in the scope of their employment and under color of state law, they made an unlawful stop of Plaintiffs that resulted in unreasonable search and seizure and the excessive use of force against the Plaintiffs. The Defendants’ actions caused injury to the Plaintiffs and the destruction of their personal property.
Action is also brought against the City of Cookeville for its failure to properly train and supervise the individual Defendants in the proper use of force and techniques used to secure the search of a vehicle, proper dispatch policy, and its establishment of policies, procedures, practices, and customs regarding arrests that result in the excessive use of force.
II. JURISDICTION AND VENUE
1. This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§1331, 1332, 1343, and 1367, and venue is properly set in the United States District Court for the Middle District of Tennessee pursuant to 28 U.S.C. §1391.
2. The causes of action alleged herein arise from factual allegations occurring in this judicial district.
3. On information and belief, it is alleged that each of the named Defendants resides in this judicial district, with at least one defendant residing within the Nashville division.
4. Plaintiffs reside outside the state of Tennessee.
5. The amount in controversy is in excess of $75,000.00.
III. PARTIES
A. Plaintiffs
6. The Plaintiff, JAMES W. SMOAK, is a citizen and resident of Saluda, North Carolina.
7. The Plaintiff, PAMELA Z. SMOAK, individually, and as parental guardian of BRANDON HAYDEN, a minor, is a resident of Saluda, North Carolina.
8. The Plaintiff, BRANDON HAYDEN, who was a minor at the time of the incidents alleged herein, is a citizen and resident of Saluda, North Carolina and the son of Pamela Z. Smoak.
B. Cookeville Defendants
9. The Defendant, ERIC HALL, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Police Officer employed by the City of Cookeville, Tennessee and was acting under color of state law.
10. The Defendant, MEAD MCWHORTER, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Police Officer employed by the City of Cookeville, Tennessee and was acting under color of state law.
11. The Defendant, BRUCE LAMB, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Police Officer employed by the City of Cookeville, Tennessee and was acting under color of state law.
12. The Defendant, ANGELA CHESEBRO, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in her capacity as a Dispatcher employed by the City of Cookeville, Tennessee and was acting under color of state law.
13. The Defendant, LAURIE GRAHAM, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in her capacity as a Dispatcher employed by the City of Cookeville, Tennessee and was acting under color of state law.
14. The Defendant, ROBERT E. TERRY, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, employed as the Chief of Police by the Cookeville Police Department in Putnam County, Tennessee, and is responsible for the supervision and training of the Defendants, Hall, McWhorter, Lamb, Chesebro, and Graham. Defendant Terry, as the Chief of the Cookeville Police Department is further, responsible for making and/or implementing policies and practices used by law enforcement officers employed by the City of Cookeville, Tennessee regarding arrests and the use of force.
15. The Defendant, CITY OF COOKEVILLE, is a political subdivision of the State of Tennessee, for which Defendants Hall, McWhorter, and Lamb serve as police officers, Chesebro and Graham serve as dispatchers, and Terry serves as Chief of Police. City of Cookeville is the political subdivision of the State of Tennessee responsible for the training and supervision of Defendants Terry, Hall, McWhorter, Lamb, Chesebro, and Graham. City of Cookeville has established or delegated to Defendant Terry the responsibility for establishing and implementing policies, practices, procedures, and customs used by law enforcement officers employed by City of Cookeville regarding arrests and the use of force.
C. Tennessee Highway Patrol Defendants
16. The Defendant, DAVID BUSH, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a State Trooper employed by the State of Tennessee and was acting under color of state law.
17. The Defendant, JEFF PHANN, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a State Trooper employed by the State of Tennessee and was acting under color of state law.
18. The Defendant, TIM MCHOOD, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Dispatch Operator employed by the State of Tennessee and was acting under color of state law.
19. The Defendant, BRIAN BROCK, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Dispatch Operator employed by the State of Tennessee and was acting under color of state law.
20. The Defendant, SHANON PICKARD, is a citizen and resident of Cheatham County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Dispatch Operator employed by the State of Tennessee and was acting under color of state law.
21. The Defendant, LIEUTENANT JERRY ANDREWS, is believed to be a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Lieutenant State Trooper and Shift Commander for the Tennessee Highway Patrol employed by the State of Tennessee. Defendant Andrews was the supervisor of Defendants Bush, Phann, McHood, and Brock, and was, as the lieutenant in command of the shift, responsible for the training and supervision of Defendants Bush, Phann, McHood, and Brock. Defendant Andrews was also responsible for making and/or implementing policies and practices used by state troopers and state dispatchers employed by the State of Tennessee regarding stops, arrests, and the use of force.
IV. FACTS
22. On January 1, 2003, Plaintiffs James Smoak, Pamela Smoak, and Brandon Hayden (collectively “Smoaks”) were returning from a vacation in Nashville, Tennessee to their home in Saluda, North Carolina. Mr. Smoak was driving a green 1994 Mercury Sable station wagon eastbound on Interstate 40 toward the Smoaks’ home.
23. On January 1, 2003, as the Smoaks were driving through Putnam County, Tennessee, the Tennessee Highway Patrol, which was subsequently joined by the Cookeville Police Department, stopped them using blue lights and sirens. Mr. Smoak was not speeding and had not violated any traffic laws.
24. While waiting for instructions from the THP officers, Mr. Smoak realized that he had lost his wallet, which contained a few hundred dollars in cash.
25. At that time, James Smoak was directed through a loud speaker by the THP officers to drop the automobile keys outside the driver’s side window and to exit the car with his hands held above his head. Mr. Smoak obeyed all of the instructions of the THP officers, and in response to the officers, got down on his knees on the side of Interstate 40 behind his vehicle with his hands locked behind his head.
26. Both Pamela Smoak and her minor son, Brandon, followed the directions of the THP officers and also exited the vehicle and got down on their knees on the side of Interstate 40 on the passenger side of their vehicle with their hands locked behind their backs.
27. Officers from the Cookeville Police Department pointed shotguns at the Smoak family while the THP officers handcuffed Mr. and Mrs. Smoak and Brandon.
28. From the moment the officers first approached the Smoaks, both Mr. and Mrs. Smoak begged the officers to shut the car doors so their dogs would not get out. The Smoaks were unarmed and their automobile contained no weapons or any other type of contraband.
29. THP Officer Bush told Mr. Smoak that they were being stopped on suspicion of a possible armed robbery, at which point, Mr. and Mrs. Smoak explained to the officers that they were from North Carolina and only vacationing in Nashville. They further stated that they had not committed an armed robbery.
30. There were no reported robberies in the area to the knowledge of Cookeville Police Department officers or dispatchers. Additionally, there were no reported robberies in the area to the knowledge of the THP dispatchers/operators or officers. There was no probable cause for the officers to make a felony stop of the Smoaks.
31. The Smoaks repeatedly asked the officers present to close the doors to the car because their dogs were inside the car. This is confirmed by the police video, which clearly reveals Mr. Smoak asking at least twice and Mrs. Smoak asking at least once for the car doors to be closed. Additionally, it is confirmed by the police video that Mrs. Smoak told the officers that the dogs were not mean and would not harm the officers.
32. Even after one THP officer looked into the car to make sure there were no other occupants in the car and that it was clear inside, the officers at the scene chose to leave the doors to the vehicle open, resulting in Patton, one of the dogs, eventually exiting the vehicle.
33. The Smoaks’ family dog, Patton, jumped out of the automobile and began to run, tail wagging, in a circle around the scene in an effort to reach his master, Mr. Smoak. At this point, Officer Hall followed the dog with his shotgun. Mr. Smoak rose up several inches and hysterically pleaded with the officers not to kill his dog, only to be slammed down on his knees to the pavement by two THP officers, seriously injuring his knee.
34. While only a few feet away from the Smoaks, Officer Hall shot Patton in the head and killed him.
35. Immediately after shooting the dog, Hall then turned and pointed the shotgun directly at Mrs. Smoak as she remained handcuffed and kneeling on the side of the interstate, shocked and crying and in fear of being shot herself.
36. Only after the shooting of Patton, did a THP officer close the doors to the automobile. At all times other than for the shooting of the dog, Officers Hall and McWhorter had their shotguns pointed at the Smoaks.
37. On information and belief, the officers were aware that after paying for gas earlier, Mr. Smoak had somehow lost his wallet, with the wallet and its contents ending up on the side of Interstate 40.
38. At the time the officers instigated the stop of the Smoaks, they acted on a telephone tip from an unknown and unreliable informant who called into the Tennessee Highway Patrol stating that a car had been speeding and that cash was on the interstate. The unknown and unreliable informant gave the location of the cash and a description of the speeding car. She was not a previous informant whose identity and reliability were known to the Tennessee Highway Patrol or the Cookeville Police Department. She never suggested that the two incidents – - speeding car and cash on the highway – - were related, nor did she claim that a robbery had taken place.
39. The THP dispatchers, the City of Cookeville dispatchers, Defendants Chesebro and Graham, and Defendants Hood, Brock, and Pickard, negligently misinterpreted information from an unknown and unreliable informant, and set in motion the series of events that resulted in the violations of the Plaintiffs’ civil rights.
40. At the time of the above-mentioned search and during the time of the subsequent detention of the Smoaks on the side of the interstate, none of the Defendants had in their possession any warrant issued by a judge, court, or magistrate authorizing a search of the Smoaks’ automobile or the arrest of any of the Smoaks. No warrant had in fact been issued by any court, judge, or magistrate for such search and arrest.
41. At no time during the above-mentioned period of detention were the Plaintiffs charged with any crime. They were ultimately released without any charge being made, and no charge has subsequently been made.
42. Defendants Hall, McWhorter and Lamb had no adequate training regarding the arrest, investigatory stop, or reasonable use of force.
43. Defendants Terry and the City of Cookeville were aware or should have been aware that the presence of pets and/or animals at crime scenes requires special procedures, policies, and customs to be used so as to not unnecessarily harm them, or members of the public. The failure to promulgate and implement such procedures, policies, or customs caused the perpetuation of procedures, policies or customs leading directly to the seizure of the Smoaks’ personal property and the use of excessive and unreasonable force against the Smoaks and their pet, Patton.
44. Each of the Defendants, individually, and in concert with the others, acted under color of law in his/their official capacity, to deprive Plaintiffs of their rights to freedom from illegal searches and seizure of their persons, papers, and effects and their rights to freedom from unlawful arrest, detention, and imprisonment. All of these rights are secured to Plaintiffs by the Fourth and Fourteenth Amendments to the Constitution of the United States and by 42 U.S.C.A. §§ 1983 and 1988.
45. The Defendants, Terry and the City of Cookeville, failed to adequately supervise the Defendants, Hall, McWhorter, Lamb, Chesebro, and Graham.
46. At the time of the incidents alleged herein and before, Plaintiffs were emotionally and physically healthy, active, and fully capable of engaging in normal day-to-day activities. Since the time of the unprovoked killing of their pet, Patton, their false arrest and detention, and the pointing of weapons at them, the Plaintiffs’ ability to perform and enjoy their usual activities, including family and work-related activities, has been impaired. In addition, the Plaintiffs have suffered severe emotional distress and mental anguish affecting their psychological well-being. Further, Plaintiff James Smoak has suffered physical injury to his knee requiring surgery due to the unreasonable and unnecessary force thrust upon his person by officers at the scene.
47. As a direct and proximate result of the intentional and/or negligent acts of Defendants, Plaintiffs sustained severe mental and physical pain and suffering and injury in an amount that will be established at trial.
48. As a further direct and proximate result of the intentional and/or negligent acts of the Defendants, the Defendants destroyed the Plaintiffs’ personalty, to wit, Patton, a 1½-year-old male bull terrier/bulldog mix, causing them to lose Patton’s substantial intrinsic economic value and his companionship.
49. Plaintiffs are entitled to compensation for the constitutional harms that both the Cookeville and Tennessee Highway Patrol Defendants inflicted upon them, including personal injury, loss of liberty, and loss of property.
50. Plaintiffs are entitled to compensation pursuant to Tenn. Code Ann. §29-20-101, et seq. and the Tennessee Governmental Tort Liability Act (“TGTLA”) for harms inflicted upon them by the Cookeville Defendants.
V. CAUSES OF ACTION
COUNT I
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(General Allegations)
51. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
52. In committing the acts complained of herein, Defendants acted under color of state law to deprive Plaintiffs of certain constitutionally protected rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States including, but not limited to: a) the right to be free from unreasonable searches and seizures; b) the right not to be deprived of liberty without due process of law; c) the right not to be deprived of property without due process of law; d) the right to be free from excessive use of force by persons acting under color of state law; e) the right to be free from false arrest; and f) the right to just compensation for taking of property.
53. In violating Plaintiffs’ rights as set forth above and other rights that will be proven at trial, Defendants acted under color of state law and conducted an unauthorized, warrantless illegal stop, search, and seizure of Plaintiffs. The illegal and warrantless stop set into motion the chain of events that led to an unauthorized and warrantless illegal search and seizure and the use of excessive force by Defendants, in violation of Plaintiffs’ rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.
54. As a direct and proximate result of the violation of their constitutional rights by the Defendants, Plaintiffs suffered general and special damages as alleged in this Complaint and are entitled to relief under 42 U.S.C §1983.
55. The conduct of Defendants was willful, malicious, oppressive and/or reckless, and was of such a nature that punitive damages should be imposed in an amount commensurate with the wrongful acts alleged herein.
COUNT II
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(Failure to Implement Appropriate Policies, Customs and Practices)
56. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
57. Defendant Robert E. Terry, in his capacity as Chief of Police of the Cookeville Police Department in Putnam County, Tennessee, and the Defendant, City of Cookeville, implicitly or explicitly adopted and implemented careless and reckless policies, customs, or practices, that included, among other things, of allowing employees of the Cookeville Police Department to confront canines without any reasonable animal behavior training and in such a way as to cause the destruction of citizens’ canine pets without lawful justification.
58. Defendant Robert E. Terry, in his capacity as Chief of Police of the Cookeville Police Department in Putnam County, Tennessee, and the Defendant, City of Cookeville, implicitly or explicitly adopted and implemented a careless and reckless policy, custom, or practice of allowing employees of the Cookeville Police Department to confront canines by use of excessive lethal force where less severe alternatives existed.
59. The failure of the Chief of Police, Robert E. Terry, and the City of Cookeville to adequately train and supervise the Defendants Hall, McWhorter and Lamb amounts to deliberate indifference to the rights of the Smoaks to be free from excessive force and unreasonable seizures under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.
60. The failure of the Chief of Police, Robert E. Terry, and the City of Cookeville to adequately train and supervise Defendants Chesebro and Graham amounts to deliberate indifference to the rights of the Smoaks to be free from excessive force and unreasonable seizures under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.
61. As a result of this deliberate indifference to the Smoaks’ rights, the Smoaks suffered personal injuries and lost the companionship and value of their family dog, Patton and are entitled to relief under 42 U.S.C. §1983.
62. In committing the acts complained of herein, Defendants acted under color of state law to deprive Plaintiffs as alleged herein of certain constitutionally protected rights including, but not limited to: a) the right to be free from unreasonable searches and seizures; b) the right not to be deprived of liberty without due process of law; c) the right not to be deprived of property without due process of law; d) the right to be free from excessive use of force by persons acting under color of state law; and e) the right to just compensation for taking of property.
COUNT III
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(Use of Excessive Force)
63. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
64. The Defendant, City of Cookeville, Tennessee, has adopted policies, procedures, practices or customs within the Cookeville Police Department that allow, among other things, the use of excessive force when other more reasonable and less drastic methods are available.
65. The actions of Defendant City of Cookeville, Tennessee amount to deliberate indifference to the rights of the Smoaks to be free of excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the Constitution of the United States.
66. As a result of the deliberate indifference to the Smoaks’ rights by the City of Cookeville, Tennessee and its agents, servants and employees, the Smoaks suffered serious personal injuries and loss of the value and companionship of their family dog, Patton, and are entitled to relief under 42 U.S.C. §1983.
COUNT IV
Violation of Civil Rights Pursuant to 42 U.S.C. §1983
(False Arrest)
67. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
68. In committing the acts complained of herein, Defendants Hall, McWhorter, Lamb, Bush and Phann acted under color of state law by falsely arresting and detaining the Plaintiffs with no basis in fact or law to do so. In violating Plaintiffs’ right to be free from false arrest, the Defendants violated Plaintiffs’ rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.
69. As a direct and proximate result of the violation of their constitutional right to be free from false arrest by the Defendants, Plaintiffs suffered serious personal injuries and special damages as alleged in this Complaint and are entitled to relief under 42 U.S.C. §1983.
COUNT V
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(Deprivation of Property Without Due Process of Law)
70. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
71. Defendant Hall, in concert with the other Defendants at the scene, intentionally violated the civil rights of the Plaintiffs by his malicious and wanton disregard for Plaintiffs’ property rights. The killing of Patton amounted to the deprivation of property in violation of the Fifth and Fourteenth Amendments.
72. Specifically, the conduct of Hall included the unnecessary and unprovoked shooting of the Smoaks’ beloved family pet, Patton. Patton was the animal companion of Plaintiffs since its birth and provided solace, affection, friendship, and love for the period of his life, up until the time of the date of his death. As a companion in all those respects, Patton maintained a special relationship with Plaintiffs, situationally and emotionally similar to that of a human family member or relation.
73. By causing the death of Patton within several feet of the Plaintiffs, while the Plaintiffs were pleading for the animal’s life and consistently advising Defendant Hall and the other Defendants of the gentle nature of Patton, Hall and the other Defendants actually and proximately inflicted an outrageous violation of constitutional rights upon the Smoaks, for which Defendants are liable and Plaintiffs seek damages therefor.
74. Defendant Hall and the other Defendants, either with the specific intent to violate the Plaintiffs’ civil rights or with a reckless disregard of the probability of causing that violation, shot and killed Plaintiffs’ beloved pet, Patton, without just provocation in front of his owners, the Plaintiffs herein. The manner in which Hall shot Patton was so extreme and outrageous that it went beyond the bounds of decency. It would be considered atrocious and utterly intolerable in a civilized community. The killing of Patton in such a merciless fashion caused severe emotional distress to the Plaintiffs, and Plaintiffs are entitled to compensatory and punitive damages therefor.
COUNT VI
Tennessee Governmental Tort Liability Act
Pursuant to T.C.A. §29-20-101/Tennessee Common Law
(False Imprisonment)
75. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
76. Plaintiffs aver that the Defendants breached a duty of care owed to Plaintiffs, so as not to deprive them of their personal liberty, by intentionally restraining or detaining Plaintiffs without just cause and without mittimus from a court.
77. Plaintiffs aver that the Defendants, without probable cause, wrongfully and unlawfully detained and restrained all of the Plaintiffs against their will through use of force for a period of close to thirty minutes.
78. At no time during the detainment did Plaintiffs resist or attempt to resist the Defendant officers, but were fully cooperating with the orders of the Defendants who had guns pointed at them at various times.
79. Plaintiffs aver that the Defendants are liable to them for false imprisonment.
80. As a direct and proximate result of the false imprisonment by the Defendants, Plaintiffs suffered serious personal injuries, emotional distress, and lost the companionship and value of their family dog, Patton.
COUNT VII
Tennessee Governmental Tort Liability Act
Pursuant to T.C.A. §29-20-101/Tennessee Common Law
(Negligence)
81. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
82. Each Defendant owed Plaintiffs a duty to use due care at or about the times of the aforementioned incident.
83. In committing the aforementioned acts and/or omissions, each Defendant negligently breached said duty to use due care, which directly and proximately resulted in the injuries and damages to the Plaintiffs as alleged herein.
COUNT VIII
Tennessee Governmental Tort Liability Act
Pursuant to T.C.A. §29-20-101/Tennessee Common Law
(Negligent Supervision)
84. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
85. Each Defendant owed Plaintiffs a duty to use due care at or about the time of the aforementioned incidents.
86. Defendants Chief Terry and City of Cookeville, Tennessee negligently supervised Defendants Hall, McWhorter, Lamb, Chesebro and Graham by failing to provide proper training and outline proper procedure in confronting domestic animals.
87. Defendant Lt. Andrews negligently supervised Defendants Bush, Phann, McHood, and Brock, by failing to provide proper training and outline proper procedure in dispatching information and confronting people and domestic animals.
88. An unknown and as yet unnamed Defendant, negligently supervised Shanon Pickard, by failing to provide proper training and outline proper procedure in dispatching information.
89. In committing the aforementioned acts or omissions, each Defendant negligently breached said duty to use due care, which directly and proximately resulted in the injuries and damages to Plaintiffs as alleged herein.
COUNT IX
Tennessee Governmental Tort Liability Act
Pursuant to T.C.A. §29-20-101/Tennessee Common Law
(Conspiracy)
90. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
91. The Defendants present at the aforementioned incident subsequently participated in a common design through a concert of action to protect fellow officer, Hall, by making overtly false statements in their reports and to the media regarding the circumstances surrounding the aforementioned incident.
92. In committing the aforementioned acts, each Defendant directly and proximately injured, damaged, libeled, and caused emotional distress to the Plaintiffs herein.
COUNT X
Tennessee Common Law
(Conversion)
93. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
94. Defendants acted intentionally or in reckless disregard of probable consequences in the exercise of dominion or control over Plaintiffs’ personal property, to wit, Patton, as described.
95. In concert with the other Defendants at the scene, Officer Hall unjustifiably shot and killed Patton.
96. The manner in which Defendants, specifically Officer Hall, exercised such dominion or control was both inconsistent with, and seriously interfered with, Plaintiffs’ rights as property owners to enjoy and/or control their personalty.
97. As a direct and proximate result of one or more of Defendants’ acts of conversion and the injuries resulting from those acts, Plaintiffs lost the intrinsic value of their property and suffered economic and non-economic damages.
COUNT XI
Tennessee Common Law
(Assault)
98. Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.
99. Plaintiffs aver that the actions of the Defendants breached a duty of care owed to Plaintiffs to not assault them or cause them physical harm or injury, except to the extent allowed by law.
100. Plaintiffs aver that the Defendants knowingly, wantonly, intentionally, and with gross disregard for the rights of Plaintiffs, assaulted them by turning toward Mrs. Smoak and pointing a shotgun at her immediately after firing multiple shots at their family dog, Patton, who was within a few feet of them.
101. Further, Mr. Smoak was slammed to the pavement on his knees by Defendants, more specifically Troopers Bush and Andrews, when he protested the shooting of his dog, Patton.
102. Further, Plaintiff Brandon Hayden was shoved into the back seat of a patrol car and left handcuffed and on his back for more than twenty minutes, in fear.
103. As a direct and proximate result of the acts of the Defendants, Plaintiffs suffered both physical and mental injuries and are entitled to relief.
PRAYERS FOR RELIEF
WHEREFORE, the above premises considered, Plaintiffs demand:
1. That process issue to the Defendants and that they be required to answer in the time allowed by law.
2. That judgment be rendered in favor of the Plaintiffs and against the Defendants on all causes of action asserted herein.
3. That Plaintiffs be awarded those damages to which it may appear they are entitled by the proof submitted in this cause for their physical and mental pain and suffering, both past and future; permanent injury and disability; loss of enjoyment of life; loss of their personalty, Patton; and medical and psychological expenses, both past and future.
To whom it may concern 11-18-10
From buddy lee George
12016 gladhill ave
La mirada ca 90638-1505
Trial ended 8-15-09 the verdict
Enclosed in this letter is information
Regarding a wrongful conviction on
Case# VA107160
The trial was held at Norwalk superior
Court located in Norwalk California
The Honorable judge Roger Ito division S
Listed below is reasons why and enclosed in this writing is evidence Were all the evidence in my case had been destroyed 3 to 5 months before the trial it’s a email from the detective to the district attorney in my case disclosing the date evidence was destroyed 3 to 5 months before the trial
1.) my due process rights were violated
2.) I supoened 5 officers only one showed up and that was detective hakala out of Whittier police department he was the lead detective and the expert witness
3.)their was bias involved with the processing of evidence because he used his own lab were the evidence had also been destroyed 3 to 5 months before the trial.
4.) the detective stated during the trial
He removed the drugs before the pre search video because he had a dog their was no dog
5.) right before the trial there was a conflict of interest with the attorneys that were representing me they violated attorney client privilege by having a meeting with the city of la mirada with out my permission nor knowledge were my case was discussed
6.) the attorneys name was Henry salcido out of long beach
7.) Henry salcido had two retired district attorneys working for him that were overfimilararity with detectives involved in my case
8.) these attorneys told me they don’t care if I’m innocent or guilty and that I should take a deal under the condition
I move out of la mirada when I get out
9.) Henry salcido told me if I gave home 180.000 and sign over the deed to our home he said he is best friends with steve cooley he could also make this case disappear
10.) when the trial started the attorney I hired Joanne alberry out of riverside dident have enough time to familiarize her self with the case
11.) district attorney kang the Los Angeles county district attorney had me charged with prison priors and strikes I dident have and it was not until after the verdict did she admit her mistakes email below is evidence of
Were the evidence was destroyed
12.) I was charged with possession for sales when no drugs were found in my possession and no money was recovered
13.) cruel and unusual punishment
14.) violation of my due process rights
15.) negligence
16.) malpractice
17.) wrongful conviction
18.) misrepresentation
Please consider looking into this thanks
Respectfully submitted
Buddy George
19.) the first search warrant was denied whittier narcotics came in any way
20.) the 2nd search warrant was done with the name of Walter Eugene Farris
A guy who has never stepped foot in our home
Buddy George – VA107160From: joanne alberry
View Contact To: LAURIE YTARTE —————–
————————————————————-
– Laurie,here is the email from the Detective
telling the court that all the property was
destroyed. Sorry about all of it. Feel free to mail
me any payments you can at my office address
4229 Main St Suite 4 Riverside CA 92501 I will
let you know when I find an attorney who will
take on a governemtn entity. good luck to you
and Buddy,Joanne ———- Forwarded message
———-From: Date: Fri, Sep 25, 2009 at 7:23
AMSubject: Fw: Buddy George – VA107160To:
joannealberry@gmail.com Hi Joanne, Per our
conversation, here is the email from Detective
Hakala confirming that the evidence was
destroyed. I will request that our matter be taken
off calendar today. Thanks. ———————-
Forwarded by Miriam Kang/DAUsers/NLADA on
09/25/2009 07:22 AM ————————— To:
cc: Subject: RE: Buddy George – VA107160 I
contacted our central property and the items
seized in the Buddy George case (408-15814-
0460-184) were dispoed on 05-29-09. Any other
questions just let me know. Eric ———————
———————————————————–
From: MKang@da.lacounty.gov
[mailto:MKang@da.lacounty.gov]Sent: Thu
9/24/2009 2:49 PMTo: Hakala, Eric J.Subject:
Buddy George – VA107160 Hi Detective Hakala,
Just as a reminder, please email me a letter
confirming that the the property booked into
evidence for this case has been disposed of and
the date of disposal. Thanks so much!
Sincerely,Miriam KangDeputy District
AttorneyTel: 562-807-7211
Where to find info on DNA evidence from 1970′s in Ct for a wrongful imprisonment appeal, it was in fairfield County Ct. Who do I contact or best place to get started, I just need the DNA test prove my innocense for 30 years of my life taken away.
I am a reporter and the author of a book based on a wrongful convicition. SHADOW IN THE RAIN tells the true story of Rockford man Ted Kuhl, sentenced in 1997 for the shooting death of 28-year-old Janet Nivinski. He was convicted with no forensic evidence, no gun ever found, no motive, and the single testimony of a witness who changed his story 16 times as a matter of court record. This witness’s flip-flopping on some of the most damning supposed “overhears” was withheld from the jury. Ted is srving 40 years and has lost his final appeal.
Hello,
I have been a prisoner of the state of Indiana for over 26 years and still have another 25 before I can get out. My names in James Stone and my DOC number is 865454. I was wrongfully convicted of Attempted Murder, Criminal Deviate Conduct/Rape and Conversion and for these charges I was sentenced to 101 years.
There was a plea on the table where I could have been out in 5 years with good behavior or served out in 10 years. I told them I wouldn’t plea for even 1 day for crimes I didn’t commit. Now it’s been 26 years and I see no hope insight of getting out before I die. DNA testing was not available back then but after it was being used it was requested that the evidence be sent off for testing. I was informed that there was no physical evidence to test because it had been lost or destroyed.
After many motions to produce evidence for DNA testing they finally found some last year but not the main evidence I wanted tested. The lab has now run 3 different types of test but because the evidence was improperly stored or preserved all test came back inconclusive. They said that the sample was too degraded and there wasn’t nothing to report because there was too little DNA and it was too degraded. These tests were very expensive and my family is broke.
My case was heard by the state Appellate Court on direct appeal right after my conviction, and the conviction was affirmed. I am innocent and my family seen me at home at the times these crimes took place and testified to that fact.
The police came to my house on a Saturday and were told that I was not home by my Sister because I wasn’t. I had to work that day and later I went to some friends’ house. When I did get home my Sister had waited for me and said the police came and will be back tomorrow to ask you some questions about a girl who had been in an accident but she did not believe the police and urged me to come with her to her place in Kentucky. She wanted to call an attorney on Monday and let the attorney find out what was going on. I thought she was being paranoid and I had nothing to hide so I stayed at home on Sunday, made coffee and when the police arrived I let them into the house and offered them some coffee.
My Sister had stayed the night because she didn’t trust the Police. They had told her on Saturday that they couldn’t say what it was about and then later told my parents that a girl had been in a car accident and they just wanted to know how much she had to drink in front of me. I did see a girl at a club on Friday night and she did drive me home because I was walking so I didn’t think anything of it. My Dad asked if I bought her any drinks because at most we thought maybe she was under age but I didn’t buy her any drinks.
The police asked me questions for 35 minutes but then they started asking the same questions but just reword them and that’s when I started to think something was up, they asked me a few more questions and about another 13 minutes later (a total of 48 minutes) I asked if I was under arrest or something and that is when they read me my rights.
Now 26 years later I wish that I wouldn’t have thought my Sister was paranoid. Sometimes I think about the plea agreement but I didn’t do it so why would I have taken it. I have seen the same men come and go over the 26 years for some terrible and hideous crimes but because I didn’t take the plea agreement I got 101 years.
The fallowing are flaws that have occurred in my case.
• My case number is Case No. 22C01-8508-FA-00054.
• The Police came to my house with the full intent to arrest me but did not read me my rights until after 48 minutes of talking to me and asking me questions and only then after I asked if I was under arrest.
• Refusal of a Polygraph – I requested a lie detector test and even offered to pay for it on more than one occasion.
• I had two alibi witnesses that place me at my house at 3 different times of the night, one of whom seen the car the girl was driving drive off.
• Improper due process – Arrested August 11, 1985 in Floyd County was held and then transferred to Crawford County but a warrant was not issued until November 15, 1985.
• Perjury – one of the state’s main witnesses (lead officer Detective David Graves) perjured himself several times and this can be found in the incomplete transcript.
• Incomplete transcript – they recorded the trial and there was a stenographer there but my transcript is incomplete. It states in Vol. 3 page 666 that Detective David Graves testimony is inaudible and it is only his testimony that is missing.
• Requested a hearing with the paper preparer to find out why the transcript is incomplete when it was both recorded and there was a stenographer but was refused.
• Requested to be able to listen to the recording to see if indeed it was inaudible and again it was refused.
• Requested a copy of the Voire Dire but have never received one.
• Requested a copy of the informational packet but have never received one.
• With a complete transcript of the full trial – I should at least be granted a new trial or have better grounds for appeals.
• Falsification of evidence – if you go through the transcript you can see that Detective Graves perjured himself and falsified evidence. Like Volume 5 page 1035 – 1039 Detective Heavrin finally states that my tennis shoes did not match up to any crime scene because they were in his car and had never been taken out for anything since he had collected them from me on the day of my arrest. (I believe they were taken out of the trunk of his car on the day of my trial) Detective David Graves testified that he personally matched up my tennis shoes to the crime scene and that they were a perfect match but that is part of the transcript that is missing. The tennis shoes were never tested or matched up to anything and should never been allowed as evidence. There are several small places in the incomplete transcript that you can see where Detective David Graves lied but you have to look for them. Especially, in the testimony by Indiana State Police Technician Charles Mead, he was the one who was in charge of testing the evidence. All through pages 792 – 813 there are several inconsistencies from what Indiana State Police Technician Charles Mead testified to compare to what Detective David Graves testified but again that is the part of the transcript that is missing.
• Chain of custody – Charles Mead’s testified that Detective David Graves put states’ exhibit #1(her jeans and belt) in a temporary locker on August 14, 1985 but Graves received this evidence on August 10, 1985 so the chain of custody of the evidence had been broken by Detective David Grave’s. Grave’s lies about this but again a part of the transcript that is missing. Like I said without a complete transcript it has to be looked for but it can be found though other people’s testimony.
• Subornation of perjury – Prosecutor Stan Faith knew Detective David Graves was not telling the truth but allowed him to perjure himself just the same.
• Prosecutorial Misconduct – allowing Graves to commit perjury, vol. 2 pages 483 & 484 in the opening statement lies about what the victim was wearing, in the closing statement by the prosecution it is said that a hair matching Jim’s was in her shoe. There was no hair that was matched to me and her shoes were never entered into evidence. It was even stated that all she was wearing was a belt and blue jeans.
• Sloppy police work and a rush to judgment (happened on a Saturday, they arrested me on a Sunday and completely stopped working the case). They waited a long time before they questioned witnesses in one case off the top of my head they waited a year (right before the trial) to question a witness. Also they never questioned her boyfriend who she had just broken up with.
• Ineffective counsel – Just about every motion counsel made on my behalf he made useless. He said he didn’t want my past criminal record brought up and even objected when the photo lineup was brought up. However, in his Opening Statement Counsel says “He was walking that night, because he doesn’t have a driver’s license. He had been arrested for a DUI and lost his license so he was on foot” This of course opens the door to past criminal record.
• The sentence is unjustified considering the only evidence was the witness picked my picture out of a photo lineup. Page 1730 Article I, section 18 of the Indiana Constitution “The penal code shall be bounded on the principles of reformation, and not of vindictive justice”.
I just don’t know what else to do. All I want is out. Nobody is sentence to 101 years just because like any normal person would do, I took it to trial. The judge did state that due to lack of remorse his why he was being so harsh. I did say I very sorry that this happened to the girl but what more could I have said … I didn’t do it! Please help me and if you can’t then please let me know if there is anybody who can.
James Stone 865454 E-408
Walbash Correctional Facility
P.O. Box 1111
Carlisle, IN 47838
http://www.facebook.com/profile.php?=100002616732384
So, you know I talked to my Sister on the phone and told her what I wanted to say but it is not me personally sending you this request. I don’t have access to a computer and wouldn’t know what to do with one if I did but I did tell her what was to be said on my behalf.
Patricia L. Stone
1104 Seatick Road
Otisco, IN 47163