Id. At 94-95 (emphasis added).
The Michigan Supreme Court found that viewing the movie with its forceful words and images could have triggered an inappropriate emotional response in the jury because the defendants’ conduct, as alleged, matched that described by the Malcolm X character, as well as the images shown in the opening sequence of the film. Id. At 96. The court found that it may have been difficult for the jury to set aside those words and images and examine bias free the testimony of the defendants as well as that of other prosecution witnesses. Id. At 96-97. As the state court said:
In focusing the jurors attention in a very emotional way on the racial element of the crime, the images from the film invited the juries to view the instant crime as part of a pattern of police brutality, effectively asking them to redress this injustice. The juries were, however, bound to decide the case on only the facts as presented at trial and to weigh defendants’ credibility without consideration of these extraneous factors.
Id. At 97.
In addition to being shown the Malcolm X film, at least one member of petitioner’s jury learned during deliberations that the City of Detroit was bracing for a riot in the event of an acquittal. Id. At 98. According to the juror affidavits the juror was aware of fact that "in the event of a riot, they were going to close the freeways. . . . (and) the National Guard was being put on alert for our verdict." Id. At 98, n.21. The Michigan Supreme Court thus held that although the jurors obviously should not have considered whether there would be a riot if they acquitted the defendants, "the reality is, however that the jurors’ knowledge that the city was preparing for a possible riot may have caused them to fear an acquittal." Id. At 98.
Furthermore, the jurors were exposed to, and considered information that petitioner had previously been a member of the highly controversial police unit STRESS. 9.
Although this information was not introduced at trial, the jurors considered it during their deliberations, and apparently considered it significant: "During deliberations, Mr. Nevers’ participation in STRESS was discussed, and it kind of set the tone from the beginning of our deliberations. It was explained during deliberations that STRESS was a police group that regularly abused young black males in the city." Juror affidavit C.
The Michigan Supreme Court found the fact the jury considered such information highly prejudicial. The court correctly stated that:
This is the kind of concrete factual evidence that could substantially compromise the ability of a jury to issue a fair verdict because the evidence relates directly to the past conduct of the police officers. This extraneous influence creates more than an emotional reason to convict. It suggests that these officers may have been acting in accordance with their preexisting racist predisposition to target young black men for abuse when they encountered Malice Green. . . It is the kind of evidence that has a direct and rational connection between it and an adverse verdict. . . . Similarly in hearing that defendant were members of an allegedly violent and racist unit, the juries’ ability to resolve factual questions before them may have been severely impaired.
Id. At 99-100
the Michigan Supreme Court found that these external influences created a real and substantial possibility that the jury’s verdict was affected. Id. At 100. It is undisputed that these extraneous influences reached the jury. Moreover, it is undisputed by either the Petitioner or Respondent that the Michigan Supreme Court was correct in its determination that the above cited influences constituted a constitutional error of Petitioner’s Sixth Amendment and Due process rights. Accordingly, the Court need not address the issue other than to state that the Court finds the state court determination of constitutional error neither contrary to nor an unreasonable applicable of federal law. 28 U.S.C. S2254 (d) (1). Therefore the question turns to the error’s harmlessness or lack thereof.
In addition to a finding that a constitutional error occurred during the Petitioner’s trial, before a Court may grant habeas relief it must also find that the error was not harmless. Chapman v. State of California, 386 U.S. 18,22-25, 87 S.Ct. 824, 837-828 17 .Ed.2d 705 (1967) (constitutional error does not automatically require reversal). Constitutional errors are generally categorized as one of two types: structural error and trial error. Brecht v. Abrahamson, 507 U.S. 619 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). This is significant because if an error is of the structural type, harmless error analysis does not apply. However, if the error is considered trial error, the Court must determine if the error was harmless. Id.; Arizona v. Fulminante 499 U.S 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
Structural errors are those that affect the entire conduct of the trial from beginning to end and defies harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). A structural error is one which affects "the framework within which the trial proceeds, rather than simply an error in the trial process itself." Id. The Supreme Court has found structural errors in very few contexts. Se Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792 9 L.Ed.2d 799 (1963) (total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of impartial trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1984) (unlawful exclusion of grand jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (right to public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable doubt instruction to jury).
Trial error on the other hand occurs during the presentation of the case to the jury and is amenable to harmless error analysis because "it may . . . be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless. . . . "Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 1263-1264, 113 L.Ed.2d 302 (1991). In contrast to the relatively few structural errors the Court has identified, the Supreme Court has found harmless error analysis applicable to a wide range of constitutional errors. Id. At 306-308. (listing cases applying harmless error to various errors).
Petitioner contends that the error in this case – the jurors exposure to, and consideration of, extrinsic evidence – is of the structural type, thus requiring automatic reversal without regard to its harmlessness. 10.
Brecht v. Abrahamson 507 U.S. 619, 629-31, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353 (1993). The Petitioner argues that the extraneous influences which reached the jury "infected the trial process at its most critical stages." That may well be true. However, the extraneous information came into the jury room after trial began, and near the close of evidence. The information and the resulting effect did not occur in the beginning of the trial such that it "affect(ed) the framework within which the trial proceed(ed)" Arizona v. Fulminante 499 U.S. 279, 310,111 S.Ct. 124
Quotes From Zatkoff's Opinion
The following are some fantastic quotes from Federal Judge Lawrence Zatkoff's lengthy written opinion releasing Larry Nevers from federal prison on December 30th, 1997. Larry's release came five months after Walter Budzyn's and by then Larry had served nearly four and a half years in prison. Larry is currently at home awaiting the results of an appeal filed by the Wayne County Prosecutor's Office. If this appeal fails, Larry will likely be retried. The complete text of this opinion follows our quotes.
Regarding the massive negative publicity leveled against Larry and Walter prior to
the trial:
"...this Court finds that the manifest picture that appears is a community that was
deeply prejudiced as to petitioners (Nevers) guilt." "However, the Constitution
of the United States does not bend to placate an enraged citizenry."
Regarding the City of Detroit's 5.25 million dollar settlement with Green family
shortly after the incident:
"As if the petitioner's (Nevers') immediate suspension did not clearly communicate
city official's belief that Nevers was guilty before he was even charged, the substantial
and swift settlement removed any doubt."
Regarding the media's effect on the outcome of the trial:
"This Court has grave concerns that petitioner (Nevers) was convicted not because of
his involvement in the Green incident, but instead because of his reputation in the
community and community discontent with the lack of administrative control in the police
department."
Regarding jurors pretrial promises to remain impartial:
"Adverse pretrial publicity can create such a presumption of prejudice that the
jurors' claims that they can be impartial should not be believed." "The torrent
of prejudicial pretrial publicity surrounding the Green incident commands such a holding.
The community was so permeated with hostility toward petitioner (Nevers) that his trial
was nothing more than a 'hollow formality.'"
Regarding the denial of a change of venue:
"....this Court finds that the trial court's refusal to change venue in the face of
the immense prejudicial pretrial publicity was 'manifest error.'" "...while the
jurors claimed to be impartial in front of the judge, behind closed doors a significant
amount of inadmissible extrinsic evidence invaded their deliberations and thoroughly
tainted Petitioner's (Nevers') trial.
Regarding the MSCs "harmless error" claim:
"The Michigan Supreme Court found that the constitutional error in Petitioner's
(Nevers') case was harmless beyond a reasonable doubt because of "overwhelming
evidence" of Petitioner's (Nevers') guilt. In reviewing the record in this case, the
Court has no doubt that the state court determination that the error was harmless was an
unreasonable application of federal law.
Regarding the showing of the "Malcolm X" film:
"The viewing of the movie by the jury cannot be dismissed as mere
entertainment." "...the timing of the jury being shown the film and the fact
that it was supplied by the Court added to the harmful effect." "The fact that
the Court failed to give a curative instruction after the movie was viewed left the
impression on the jury that the movie was 'sanctioned' by the trial court judge."
Regarding juror knowledge that the city was bracing for a riot:
"The Court cannot imagine a more prejudicial extraneous influence than that of a
juror discovering that the City he or she resides in is bracing for a riot - including
activating the National Guard and closing freeways - in the event the defendant on whose
jury you sit is acquitted. The magnitude of such extraneous influence cannot be
overlooked."
Regarding other jury taint:
"This was not simply a case of one or two minor instances of extraneous influence
finding its way into the jury room, but, rather, serious, repeated encroachments of the
Petitioner's constitutional right to have a jury decide the case solely on evidence
submitted at trial."
Regarding the MSCs "overwhelming evidence" claim:
"Needless to say, merely stating that the evidence against the Petitioner (Nevers)
was overwhelming does not necessarily make it so." "The Michigan Supreme Court
apparently found the testimony of the EMS workers to be 100% accurate and completely true
and thus overwhelming evidence of Petitioner's guilt. However, the only way the Michigan
Supreme Court could so find is by ignoring the significant inconsistencies in EMS workers'
testimony, and by completely disregarding the testimony of Petitioner (Nevers)."
For more details about Judge Zatkoff's handling of Larry's appeal,
see the first few updates on our Latest News link.
Full Text of Judge Zatkoff's Opinion Releasing Larry Nevers
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CASE NO. 97-CV-75175-DT
HON. LAWRENCE P. ZATKOFF
LARRY NEVERS
Petitioner
VS.
GEORGE KILLINGER, Warden of
FMC Fort Worth, Fort Worth, Texas;
KENNETH McGINNIS, Director of the
Michigan Department of Corrections;
MICHIGAN DEPARTMENT OF CORRECTIONS,
Respondents.
MEMORANDUM OPINION AND ORDER
AT A SESSION of said Court, held in the
United states Courthouse, in the City of
Detroit, State of Michigan, on the day of
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
This matter is before the Court o 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 is 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 flashlight.
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 of Budzyn several marked police cars arrived soon after the EMS vehicles. All four of the ES 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 fashlight 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 ES 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 the 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.
2. This case presents a prime opportunity for the Michigan Supreme Court to review the decision allowing cameras in court. Suggestions that televised trials educate the public are disingenuous. The goal is not education but sensationalism and profit. To be sure, what we must be most concerned about is the defendant’s right to a fair trial not entertainment.
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 curia 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. S 2254 on October 8, 1997.
State prisoners may seek federal habeas corpus relief on the grounds that they are being held in custody in violation of the United States Constitution or laws or treaties of the United States. 28 U.S.C. S 2254 (a). Because Petitioner’s application was filed after April 26, 1996, his petition is governed by the provisions of the recently enacted Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). The AEDPA has significantly amended the habeas statute and sets forth new standards of review for federal courts to apply when addressing petitions for writs of habeas corpus. 3.
3. Surprisingly, although the amendments effectuated by the AEDPA clearly apply to the case at bar