Judge Scoffs at Strange Tale of Near Eunuch
BROOKLYN, N.Y. (CN) - A federal judge said he did not trust testimony by an investigator who said his testicles were nearly bitten by a cocaine runner after a high-speed car chase.
The detective's testimony may be no more credible than that of the drug felon, who gave some inconsistent testimony against high-ranking officers allegedly responsible for his chronic neck condition, U.S. District Judge Allyne Ross explained.
On Sept. 6, 2005, Juliano Torres-Cuesta sped away from a Drug Enforcement Administration special agent and two New York Police Department detectives who knew that he had large quantities of cocaine in his car.
Torres zigzagged from the road to the sidewalk for up 8 miles in a high-speed chase that ended when he hit a dead end on 88th Avenue in Queens.
DEA Special Agent Andrew Butorac and NYPD Detectives Francis Berberich and Edwin Benitez caught up with Torres, arresting him on charges that eventually brought a 20-year sentence.
Torres filed suit from prison, claiming that the arresting officers injured his neck when they smashed his back, body, arm, neck, face and, finally, his left ear.
"This blow to the head put Torres in a trance-like state, in which he felt as if he were almost asleep," Judge Ross summarized. "He testified that, in this state, he felt no more pain, but he heard the officers curse at him, as if he were 'inside of a swimming pool' and he could 'hear people outside screaming.'  Then, all of a sudden, one of the officers screamed 'stop,' and the officers stopped hitting Torres."
A three-day, nonjury trial began on July 11, 2011.
After weighing the evidence for almost three weeks, Ross released a 33-page unpublished opinion on Monday, saying that the scales of justice hanged in "equipoise."
"I not only question certain statements made by plaintiff during his testimony, but I also have grave concerns about the testimony of the arresting officers," Ross wrote. "Whether the parties' troublesome testimony is due to faulty perception or memory, embellishment, a disregard for the truth, or some combination thereof, I cannot say."
At trial, Torres testified that he thought he was being pursued by robbers since they waited eight blocks into the chase to activate their lights and sirens. He said he heard robbers sometimes impersonate cops this way.
The judge had "serious doubts" about this part of Torres' testimony.
"No reasonable person could have believed that robbers would take such attention-drawing actions as (i) proceeding on a five to eight mile, high-speed chase through Queens with emergency lights and sirens activated on their vehicles and (ii) lining a residential street with those vehicles and exiting them with guns drawn," the order states.
Ross also doubted Torres' claim that he put his hands on his head and dropped to the ground as soon as the officers identified themselves.
The officers, however, fared no better.
In one instance, Judge Ross said he was "perplexed" that Detective Berberich claimed that Torres kicked his back, even though trial testimony established that Torres lay face down with his legs restrained by another officer.
The judge was also "troubled" by Berberich's claim that Torres could have tried to bite his testicles to escape, when the other arresting officers doubted that Torres was within biting distance.
A transcript of Berberich's cross-examination reads:
"Q: Now, your testicles were not near Mr. Torres's head, were they?
"A: My - they weren't - if he had reached his head up, he could have bitten me. In my opinion, he would have had an opportunity to bite me in my cro[t]ch or inner leg."
Ross was no more convinced by the testimony of the other two officers.
"I find it difficult to comprehend how Detective Benitez did not see SA Butorac use one or more knee strikes against Torres' left thigh," he wrote, referring to the DEA special agent.
Ross also called Butorac's notes from a post-arrest interview "questionable."
"Thus, solely because the burden of proof rests on plaintiff, and despite my concerns about the veracity of the arresting officers, I am constrained to find that the officers did not use excessive force in violation of the Fourth Amendment and that they did not commit assault and battery under New York law," Ross ruled.