Earlier this week, the Sacramento Police Department reported the death of a man in his forties, in their custody after a brief but violent struggle. On Tuesday they released a brief report on the death of John Torretti.
Death in Custody Investigation – The Sacramento Police Department’s investigation into the death of John Torretti, while he was in police custody, continues. The department immediately launched an investigation to understand the full facts of this case and appreciates those who resisted the urge to jump to conclusions during a very tragic situation.
On May 24, 2013, at 5:46 p.m., a male, white subject in his early 40s, later identified as Torretti, entered a store in the 8300 block of Folsom Blvd. and began making nonsensical statements to the female store employee. The employee feared for her safety and called 911. Immediately upon the officers’ arrival, Torretti engaged in a violent struggle with both officers.
During this struggle, Torretti overpowered the male officer who responded and, for a period of time, had the officer pinned down on his back while continuing his physical attack. The female officer, in an attempt to assist and free her partner, sprayed Torretti with pepper spray, which had no effect. A security guard assisted the officers and struck Torretti with a baton, which also had little to no effect. Fortunately for the officers, several bystanders rushed to their aid, with one kicking Torretti multiple times in the head and body in an attempt to prevent him from continuing his assault on the officer.
Because of the assistance of others, the officer was able to maneuver himself out from under Torretti – who was still being resistant and non-compliant to orders, and was viciously biting the officer’s arm.
The female officer then drew her baton and struck Torretti multiple times in the body and legs, which also had no effect on him. It was not until an off-duty law enforcement officer responded to assist that Torretti was finally subdued and handcuffed. Tragically and inexplicably, Torretti died a short time later.
The Sacramento County Coroner’s Office released their preliminary autopsy results today, which revealed that Torretti did not sustain any fatal traumatic injuries as a result of this incident. These results are consistent with the investigators’ findings. Once the toxicology results are completed, it is assumed that a final cause of Torretti’s death will be determined.
This incident involved a very violent struggle that was captured on videotape in its entirety from multiple angles. A video review of this incident revealed that the struggle lasted approximately three minutes and five seconds. Had it not been for the physical intervention of several members of the community, the officers involved in this incident could have suffered potentially fatal injuries.
The Sacramento Police Department wishes to extend their gratitude to those courageous community members and private security personnel for assisting our officers during this violent struggle.
The Sacramento Police Department’s Homicide, Internal Affairs and Crime Scene Investigations Units are working this investigation in conjunction with the City’s Office of Public Safety Accountability and the Sacramento County District Attorney’s Office.
Supreme Court Decision Provides For Exception to Protect the Innocent
In 1996, President Bill Clinton and Congress were looking to crack down on the number of appeals defendants got. The Antiterrorism and Effective Death Penalty Act (AEDPA) created a limit to how many appeals could be filed, allowing only a single habeas corpus appeal after the convicted lost the first and only direct appeal.
Congress, however, made one exception: “If the petition alleges newly discovered evidence, the filing deadline is one year from ‘the date on which the factual predicate of the claim . . . could have been discovered through . . . due diligence.’ “
That leaves open a critical question, however, which is what happens if you miss the deadline and yet there is evidence that could show innocence?
In the case before the court, Floyd Perkins was convicted of first-degree murder and sentenced to life in prison without parole – a conviction finalized in 1997.
However, eleven years later, Mr. Perkins filed a federal habeas petition alleging ineffective assistance of trial counsel. The District Court ruled that his filings, even if deemed to contain new evidence, failed to be filed in a timely fashion. At the same time, the court found that the evidence was insufficient to show that “no reasonable juror would have convicted him,” taking into account all of the evidence.
However, the Sixth Circuit reversed, noting that, while the petition was untimely and he had failed to diligently pursue his right, “the court held that Perkins’ actual-innocence claim allowed him to present his ineffective-assistance-of-counsel claim as if it had been filed on time. In so ruling, the court apparently considered Perkins’ delay irrelevant to appraisal of his actual-innocence claim.”
The Supreme Court yesterday upheld this decision, ruling, “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar … or expiration of the AEDPA statute of limitations.”
The 5-4 decision saw the typical liberal-conservative split, with Justice Anthony Kennedy swinging to the left this time.
Justice Ginsburg keeps the barrier high, warning, “The exception applies to a severely confined category.”
She writes, “A federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown.”
She continues, “A petitioner invoking the miscarriage of justice exception ‘must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.’ “
That remains a high barrier, but at least a doorway to allow evidence of innocence to emerge, even in cases of untimely filings.
There is a critical balancing here. Justice Ginsburg writes, “Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.”
In part, this concession is meant to address the State’s concern that the prisoner may be advantaged by delaying new evidence.
Justice Ginsburg notes, “The State fears that a prisoner might ‘lie in wait and use stale evidence to collaterally attack his conviction . . . when an elderly witness has died and cannot appear at a hearing to rebut new evidence.’ “
She argues, “The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness’ prior testimony, which would have been subject to cross-examination, could be introduced in the event of a new trial.”
Emily Bazelon, of Slate Magazine, speculates, “Perkins, for starters, is probably out of luck because the district court judge who reviewed his habeas petition found that a reasonable juror could still have convicted him, despite the new evidence about the bloodstained clothes.”
She adds, “Maybe Justice Ginsburg went out of her way to open only a narrow gateway in hopes of averting the attention of Congress, which could slam the door shut by revising AEDPA if it gets mad enough about Tuesday’s result.”
Meanwhile, in dissent, Justice Antonin Scalia writes that Congress should be furious because the court here does not interpret the statute but rather rewrites it.
Calling it a “statutory-construction blooper reel,” Justice Scalia argues, “Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers.” He adds, “With its eye firmly fixed on something it likes – a shiny new exception to a statute unloved in the best circles – the court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler.”
“Why is Scalia so enraged?” Ms. Bazelon writes. “Three reasons. First, that’s just his way. Second, he’s offended as a textualist – a judge who believes first and foremost in sticking closely to the wording of a statute. And third, like I said, this is the latest battle in a long-standing war. Back in the day of the Warren court, federal judges expanded their inquiries into habeas petitions out of concern that indifferent state courts were blithely dismissing these appeals.”
She adds, “Scalia says this amounted to a ‘radically expanded’ habeas review. Other judges would call it doing their job of ensuring that innocent people don’t rot in prison or wind up executed. But in the 1980s, the Rehnquist court started complaining about the ‘abuse of the writ’ and narrowed the scope of habeas review. Then came AEDPA, tightening the windows of appeal.”
—David M. Greenwald reporting
