THE JURORS GASPED when they saw the photo. I was on the witness stand in federal court when my attorney entered the photo as an exhibit, and even I had never seen my arrest picture displayed in such vivid detail.
A crime scene photographer had snapped the pic on the night of May 16, 2005, during the four hours I was forced to sit in my driveway, handcuffed, while the police searched my home. A pair of concerned EMTs had been shooed away, ordered to ignore my condition.
“Just a head wound,” Officer Ronnie Joe Schmidt told the befuddled med techs. “Those bleed a lot, you know.”
Craniofacial surgeons diagnosed my injuries as a LeFort II fracture, so named for an 1800s French physiologist who cataloged the fracture patterns resulting from baton strikes to the heads of cadavers. I had over two dozen skull fractures, requiring three surgeries to repair. I languished in the Marion County Jail for a month, without pain medication, and without a liquid diet, before the first surgery occurred. For those who envy weight loss, I dropped 25 pounds in 30 days.
In an excessive force case, the issues are not complicated. The jury is tasked with one yes-or-no question: Was the force used necessary to affect the arrest? That’s all there is to it — one simple question — but it is astonishing what the state will do to rephrase that question and color jurors’ attitudes toward how they will answer it.
Ideally, we’d like the jurors to focus on the moment of impact, like reviewing an official’s call in a sports venue. If we had multiple camera angles and could slow down the footage, the call would be easy.
I was face down on the floor with two cops on my back when I was first punched, by a third cop. The police had kicked the door in, with guns drawn. I had raised my hands in surrender prior to them breaking down the door, I had stepped back, and I dropped to the floor face down when told to do so.
I had yelled, “I’m not resisting!”
I had no weapons in my hands, or anywhere in my home.
I had not thrown a punch, kicked, or even made a fist.
I was immobilized, with 400 pounds atop me.
When Officer Jeff Krider, who was the first to straddle my back, was asked at my criminal trial if I was cooperative at that point, he replied, “Pretty much.” Krider had his “gun in one hand and radio in another,” indicating he needed no hands to keep me down.
I was compliant.
Easy call to make.
That was the position I was in when Officer Frank Poskon rambled over, believing his wire-wearing confidential informant was dead on the floor ten feet away. And he assumed I had killed her. He hadn’t yet figured out the significance of the informant’s ex-boyfriend, Billy Neely, fleeing the room with gloves on and a hoodie pulled so tight around his face that “only his eyes showed.” And he apparently hadn’t heard me immediately say three times, “We’re only trying to scare her,” which Krider put in his first affidavit.
So Poskon started punching me, “repeatedly,” he testified in 2005, “until I broke my own hand.”
Poskon’s injuries, and mine, were consistent with punching a human skull while that skull is firmly pressed against a hardwood floor. My head could not recoil from the blows – pinched between fist and
floor, like a walnut experiencing the nutcracker effect. The pool of blood on the floor [Photo 2] attests that I was in one place for the duration of the assault, not up and moving around like the cops later testified at the civil trial in 2013.
Krider wrote twice in his 2005 probable cause affidavit written that night that I was “actively and forcibly resisting,” but he did not describe exactly what constituted this resistance – he just used this conclusive phrase. The phrase wasn’t even his invention – it’s culled from the Supreme Court opinion in Tennessee v. Garner (1985), declaring that a cop may legally use force on an arrestee who is “actively and forcibly resisting.” Krider’s choice of language shows he was well-versed in the legal standards of excessive force law, and was trained in exactly how to begin dodging liability. It must be a required course in every big-city police department.
The creation of an alternate narrative begins early in every potential excessive force situation – numerous police brutality cases in this country prove this true. An incident makes the news, and police automatically go into denial protocol. They’ll tell whatever story they can to make themselves the ‘good guys,’ careful to conform to whatever evidence is in the public’s awareness.
As Ted Conover Wrote in Newjack (2001) they engaged in “a time-honored law enforcement ritual, one of the few creative acts the job demanded: remembering an incident, revising it so that it happened as it should have, and then repeating that story until it sounded real.”
Krider’s 2005 story had him placing one handcuff on me while I resisted the second cuff, prior to anyone hitting me. I’m sure that helped to find me guilty of resisting arrest. Problem is, Officer Barb Maxey provided the handcuffs to Krider, and she testified she saw me being beaten as she entered the room.
By 2013, the party line repeated dutifully by every cop was that Poskon punched me “two to four” times, nothing more. But that didn’t explain the broken ribs (kicked while down), or the subcutaneous emphysema to the neck found by the doctors (punched in the neck), injuries that don’t jibe with two to four punches to the face.
And it doesn’t jibe with neighbor George Klinger’s deposition, in which he described waiting three minutes to look out his window [Photo 3, diagram] and into my house, seeing an “out of control” officer “on top of somebody and punching him with both fists and the person on the ground was not resisting,” but “just curled up and being pummeled.”
Nevertheless, by the time the civil trial rolled around eight years later, the cops’ attorney had worked the case into an audacious closing argument: “They were fighting,” she concluded, “and Krider was losing that fight.” It was a bold summation, given that Krider never testified to being struck, grabbed or otherwise assaulted. I had been convicted of misdemeanor resisting arrest, meaning my level of culpability was defined as being without the use of force directed at any person. But, this attorney had some wiggle room with the facts because her defendants were never confronted with any of their prior testimony or sworn statements during cross-examination. Thus liberated, they were free to invent an all-new narrative for the jurors in federal court.
Prisoners with excessive force claims face long odds. A magistrate judge had informed me during settlement negotiations that my chances of winning were slim.
“You’ve got a half-million dollar injury,” he proclaimed, “but only a 3% chance of winning,” based on the “conservative” composition of federal juries in Indiana. The jury pool was drawn in a manner somehow favoring rural Indiana counties while overlooking minority residents. Of over 100 potential jurors, only one was black — an Ethiopian immigrant. The cops used a peremptory challenge to dismiss him.
The magistrate proposed a settlement of $15,000. His calculus was obvious: 3% of $500,000. The cops agreed to this figure, and even tossed in the bone that they would admit they used excessive force. Seemed like gloating to me. Since the Indianapolis police had just paid a mouthy teenager $150,000 for merely giving him a black eye, I spurned their offer and elected to go to trial.
“They’re going to go to trial saying they’re heroes,” the magistrate warned. “They’ll say they stopped you from trying to kill someone, and they’ll argue that that justifies their use of force.”
Cops often play the hero card, highlighting the dangerousness of their job. Truth be told, American police commit 1,200 homicides a year while suffering less than 50 such deaths. (Democracy NOW! 12-30-2015) A 25-to-1 kill ratio.
Fact: It is twenty-five times more dangerous to be around a cop than it is to be a cop.
The magistrate clearly warned me that the cops’ legal counsel would make this trial all about my own criminal conviction for attempted murder, and not about what was happening at the moment I was beaten by the police. A diversion from the real issue at hand.
I figured if they tried such a tactic, they would lose. I hadn’t touched their informant, and I had compiled overwhelming evidence in my post-conviction hearings to prove this was true. I was eager to use the civil trial in federal court to straighten out some misconceptions about my case.
Billy Neely had strangled Melinda Neely by surprising her from behind the door when she walked in from my garage. I was the last person Neely knew to be behind her, so she initially assumed it was me who had attacked her. She was provided numerous incentives to stick to that story; and Neely was given a too-good-to-refuse deal to agree.
The narrative of me as assailant fit the state’s needs precisely. It created a moral justification, if not a perfectly legal one, for defending the brutality claim that was sure to come. It sure beat the hell out of the truth, which was: “We were angry, we assumed Evans did it, and we beat up the wrong guy.”
There exists a social and corporate strategy where it’s thought to be effective to rapidly admit a mistake, apologize, and make amends; and there exists another strategy where the course is to admit nothing, never apologize, and make amends only when forced to do so. Police departments universally subscribe to the latter course — and all of the resources of the state become available to assist in the cover-up.
I’m not naïve, but the fact that an elected prosecutor would choose to side with the cops on a clear case of brutality (before any investigation was done), and would choose to ignore the truth and allow perjury to be presented to a jury in a criminal case, confounds me to this day.
That’s the largely unrecognized aspect of the thousands of police brutality cases in America — abused arrestees face increased criminal penalties and a perversion of due process in order to absolve the police of misconduct and avoid liability.
In my criminal proceedings, Melinda Keedy was under oath four times, and came up with four different stories about how she saw me strangle her from behind. She was: “on the floor,” “lying there,” and saw me; she was conscious for only three seconds but saw me standing two feet in front of her face; she identified me by my hands (but couldn’t recall if I was wearing gloves or not); and, at trial, claimed I swung her around and looked over her shoulder, a preposterous proposition given that she had her arms raised and was clawing at her neck. On cross-ex, though, she finally conceded, “I don’t know who did what.”
Marion County Prosecutor Carl Brizzi heard this, then presented a new instruction to the jury, asking them to also consider finding me guilty as an accomplice to attempted murder. Dual theories of guilt. That it was the wrong instruction, containing the wrong elements for accomplice liability, became an issue in later proceedings.
The cops had no info on the identity of her attacker, although they sometimes pretend to know now. The attorney general conceded in an appellee’s brief: “None of the police saw Evans do anything in relation to Ms. Keedy.”
Officer Poskon, though, defended his actions by offering the circumstantial evidence that he saw a person wearing light blue pants on the floor next to Keedy. I had worn light blue pants. Officer Jeff Avington testified that Neely’s pants were brown. This helped convict me at trial, and locked in the appellate court’s conclusion in my direct appeal that I must have been Keedy’s assailant.
Trouble is, Neely was also wearing light blue pants. Avington was mistaken.
At a post-conviction hearing we presented a photo of Neely at arrest wearing light
blue pants. [Photo 4] And since Neely had admitted at trial that he was next to Keedy when Poskon looked in and saw one person (not two) next to Keedy, it was easy to deduce that Neely had strangled her. Poskon had witnessed Neely strangling Keedy, and thought it was me. Neely’s direct testimony, of course, put it all on me. His story had him outside the house, on the patio steps, when the attack happened:
Q — At what point — where were you at the point you saw the defendant put the rope around Melinda’s neck?
NEELY — Originally?
Q — Yes.
NEELY — I was still outside.
Q — And you were looking in through a window?
NEELY — Yeah.
Q — Okay. And can you tell the jury where you were in relation to that game room outside, where is the window?
NEELY — There’s a window here, and I was outside on the steps. There’s a back patio. I’m not positive if there’s a window here or not.
Q — Okay.
NEELY — But these windows were open.
Q — Okay. And you could see in?
NEELY — Yeah, I could see in. [Trial, 421-422]
Unfortunately, the jury had no idea where the patio was, or the steps, or the window Neely says he looked through. The crude diagram the jury was given didn’t include the patio or the windows. My trial lawyers did not confront Neely with the photo
[Photo 5] showing it was impossible to see inside from the patio steps. Nor did they use the interior photo [Photo 2, above] showing the window was completely obscured by a dark curtain.
Anyone with an IQ greater than his hat size can figure out Neely was lying. The real mystery is how Prosecutor Brizzi ever allowed Neely to take the stand. But then, Brizzi would do about anything to protect a cop from liability — and that was how he ended up losing the prosecutor’s office in 2010.
A drunken Indy cop, David Bisard, had plowed his patrol car into a group of motorcyclists at 75 mph shortly before noon on August 6, 2010, killing Eric Wells and severely injuring Mary Mills and Kurt Weekly. His blood was drawn at Methodist Occupational Health Center and tested 0.19 BAC, well over the legal limit for operating a vehicle while intoxicated. Brizzi, however, dropped the prosecution of Bisard on August 20, 2010, citing “problems with the evidence.” The blood draw, it was argued, should have been taken at a hospital, not a clinic.
The public was outraged at Brizzi’s protective nature toward the drunken officer, and voted the Republican out of office in November 2010. Democrat Terry Curry replaced Brizzi, and one of his first acts was to refile charges against Bisard. Bisard was convicted and wound up going to prison — 16 years with 3 suspended, leaving him to do 6 years and 6 months on the 13.
It happens to be exactly 25 years less than the time I will be doing on my 71-year sentence. And my victim popped right up and spent the next seven hours helping the police search my home.
If the above evidence wasn’t enough, I had also hired an expert in forensic linguistics to analyze the audio recording. Dr. Robert A. Leonard, from Hofstra University, testified at my post-conviction hearing and concluded, from the heavy breathing and stress in Neely’s voice, that Neely was engaged in a struggle that night, and I was not. A careful and analytical listener could never conclude otherwise.
I tried to impress upon my civil attorney that disproving my alleged role as assailant would strongly influence the civil jury weighing the cops’ fate on the excessive force claim. The cops had beaten the wrong guy, then enlisted the prosecution to pretend I was the perpetrator of an attempted murder. Being railroaded into an attempted murder conviction when I was only guilty of being an accomplice to battery ought to weigh doubly on the jurors’ minds.
But my civil attorney had a different idea.
All this evidence, she argued, didn’t prove or disprove excessive force. I grudgingly conceded she was right — the judge would have excluded it as “irrelevant.” Whether I had attacked Keedy or not, at this point, was not the issue. I was counseled to say as little as possible about the attempted murder conviction, despite all of the infirmities in the state’s case, and despite all of the evidence I had accrued since my criminal conviction in 2005.
It was frustrating.
I was forced to take the witness stand in federal court as a man convicted of attempted murder, serving a long prison sentence, and could say nothing regarding how this conviction came about. Meanwhile, the cops relished in their role as heroes, stopping a “murder in progress.” This made it very easy for the jurors to return the verdict they did. There was some resistance in the jury room — they deliberated for over five hours on a Friday night —but ultimately the verdict was that none of the defendants had used excessive force.
Just an ordinary arrest.
No compensation required.
Learn to live with that.
The post-conviction court basically ignored the evidence proving I had not assaulted Keedy. Judge Robert Altice, in fact, wrote this about the photographic evidence: “It is an overstatement to say that Neely testified that while he waited outside he peered into the room and watched the attack occur. Instead, Neely testified that as soon as Evans and the victim came into the room, he came in and was standing beside the pair, before the victim fell to the ground.” [PC Order, p.16]
Really? Try reading Neely’s testimony again.
“Obtuse,” the word used by Andy DeFresne to describe the warden in The Shawshank Redemption, comes to mind.
I later learned Altice was gunning to get put on the Indiana Court of Appeals, and that he formerly prosecuted murder cases side-by-side with Carl Brizzi in the mid-1990s.
The erroneous jury instruction was also glossed over — the court reasoning that none of the jurors could have possibly found me guilty as an accomplice, even though the prosecutor had actually argued to them to find me guilty under this alternative theory. If even one juror had found me guilty as an accomplice, I would be entitled to a new trial. But, under the rules of the court, I was not allowed to even ask any of the twelve jurors whether they had found me guilty as perpetrator or accomplice. They were welcome to volunteer such information, but I wasn’t allowed to seek that information.
The jury instruction issue was denied.
The 71-year sentence remained intact.
Do 31 years and 6 months.
Billy Neely and Melinda Keedy came out of the mess with only a few minor scrapes.
Neely did 6 years and 2 months and was released, and I hear he has not encountered any major trouble since this incident. Whatever anger I had about Neely, I’ve learned to get over it — he only did what almost every other human being on earth would do, which is, look out for himself.
When you seek to first understand others, it becomes much easier to forgive what they have done.
Keedy fared well too. In 2006 she got 3 years’,probation for 34 felony convictions in Kentucky, then testified I was her accomplice in those crimes. There was no evidence other than her word. I put on an alibi defense, with multiple pieces of evidence placing me in Indy at the time Keedy said I was with her in Louisville. A jury acquitted me in less than an hour.
Her probation was terminated early, right after she testified in 2007. Keedy then picked up a thirty-fifth felony in Maricopa County, Arizona, in 2008, earning her more probation. She sent me an email in 2013, saying she forgave me and Billy, which was nice, but not quite enough. I wrote back, urging her to grow a conscience and get acquainted with the truth. No reply. Last I heard she was enjoying an eventful lifestyle in her trailer park community in Mesa, Arizona.
AS FOR THE COPS, if you conclude from my story that I must think all cops are lying brutes, I assure you this is absolutely not the case at all.
Every cop involved in my case did exactly what I expected him or her to do. Officer Frank Poskon got pissed off, lost his cool, and started punching a defenseless person — which is a very human reaction. I can understand that, and maybe the jury understood that, too. He made an error in judgment, and he reacted emotionally. Those are the most forgivable kinds of mistakes.
Officers Krider, Avington, and the others, all did what cops everywhere do and have done since the profession was invented — cover up for their buddies. Again, a very human thing to do. I would not expect them to be forthcoming with the truth, because the price tag for telling the truth is too high. Their culture cannot withstand any break in their ranks, cops telling on cops. Given the environment they work in, their actions are also forgivable.
Cops everywhere comply with the universal, unwritten policy on excessive force. The police are honest public servants over 99% of the time, and polls finding them highly trustworthy are accurate; but when they make mistakes, they become as human as anybody else, and their first concern is for themselves. They like their jobs, and they want to keep them — which is very understandable. There’s no finding fault with that. They cover up for others in their profession, and if we are honest about it, we would recognize that police departments could hardly function if the cops were constantly undercutting their brothers in blue.
The problem of police brutality in America is not a problem of lack of control or an absence of moral character in the police, but a problem of incentives. To make progress in the fight against police brutality, the incentives must change.
I suggest two things that seem counterintuitive at first glance. One is to limit the amount of liability police officers face for excessive force suits. Lower the stakes, and we are more likely to have police officers who do not fear liability. The state already insulates state actors from liability in a number of situations — for example, the Indiana Tort Claims Act, and the Federal Tort Claims Act. We could expand a limited liability concept to police officers.
Second, and most important, cops should not be faced with losing their jobs due to excessive force. I believe this is the biggest impediment to fact-finding in brutality cases, because every cop fears job loss, and no fellow officer wants to be responsible for another officer’s exit from law enforcement. So, in order to reveal the truth, every officer with information about a use of force incident should be required to be interviewed and cross-examined under oath within a few days of the incident. An officer who is truthful can never lose his job; but those who are proven untruthful are subject to job loss, and not protected by the law limiting financial liability.
Those who are caught lying to cover for fellow officers should be required to pay an amount equal to the damages assessed against the officer who used excessive force.
Instead of firing police who have used excessive force, retraining can be done. Body cameras can be worn. Low-contact assignments can be given. Police can be trained to separate their emotions from their actions, and continue on in their profession.
What we don’t need is the current system where, once an arrestee’s blood is spilled, an automatic liability-avoidance system goes into effect. That only hides the truth, makes us more distrustful of the police, and costs people like me many years in prison.
That isn’t good for anybody, and desperately needs to change.
Public Information Sources:
Commonwealth of Kentucky v. Melinda Keedy, Jefferson County, KY, 2005; State of Arizona v. Melinda Keedy-Commons, Maricopa County, AZ, 2008.
State v. Billy Lee Neely, 49G01-0505-FA-082085, Marion County, IN, 2005_
State of Indiana v. Evans, 49G01-0505-FA-082867, Marion County, IN, 2005; Evans v. State, 855 N.E.2d 378 (Ind. App. 2006); Evans v. State of Indiana, 49G02-0505-PC-082867, Marion County, IN, 2013; Evans v. Zatecky,1:13-cv-00634-JMS-MJD, Southern District of Indiana, 2013.
Evans v. Poskon, 603 F.3d 362 (7th Cir. 2010); Evans v. Poskon, U.S. District Court, Southern District of Indiana, 2013.
State v. Bisard, 973 N.E.2d 1229 (Ind. App. 2012); Bisard v. State, 26 N.E.3d 1060 (Ind. App. 2015).
The author, Ty Evans, was not compensated for the publication of this article, in conformity with Indiana Code 5-2-6.3-3.
About the Author:
Ty Evans is serving a 71-year sentence at Indiana State Prison for attempted murder. He has written and published legal self-help books under the pen name of Ivan Denison: Flipping Your Conviction (2013), Flipping Your Habe (2014), and The Essential Supreme Court Cases (2015). His non-fiction narrative, Fifty Million years in Prison: The Futility of Prisoners Seeking Justice in America, is being published in January 2018.
If you’d like to contact Ty directly, please write to:
Ty Evans #158293
1 Park Row
Michigan City, IN 46360