Absurd and indefensible acquittal in Kelly Thomas case

January 13, 2014

Monday, January 13, 2014

Good evening:

An Orange County jury today found former Fullerton police officers, Manuel Ramos and Jay Cicinelli, not guilty of beating Kelly Thomas to death at the Fullerton Transportation Center, despite a 33-minute video of the murder recorded by a nearby security camera supplemented by audio recorded by their body microphones.

This verdict is absurd and indefensible.

Whether by mistake or by deliberate act, the prosecutors in Trayvon’s and Kelly’s cases permitted cops to testify as experts on the use of force and to express their opinions that Zimmerman in Trayvon’s case and Ramos and Cicinelli in Kelly’s case acted reasonably and did not use excessive force.

Bullshit!

In both cases, the prosecutors did not object to the question and move to strike the answer until the following day.

In both cases the judges sustained the objection and instructed the jury to disregard the answer.

But that didn’t unring the bell.


Jury to resume deliberations Monday in Kelly-Thomas-beating case

January 12, 2014

Sunday, January 12, 2014

Good afternoon:

The Kelly Thomas case was submitted to the jury late Thursday morning after five weeks of trial and 3 1/2 days of final arguments. The jury deliberated Thursday afternoon without reaching a verdict.

The jury was excused until Monday morning when it will resume deliberations.

This is Part 1 of prosecutor Tony Rackauckas’s rebuttal argument (51:46):

Here’s Part 2 (9:17)

Here’s the 33 minute video of the beating:

Meanwhile, check out the Hand of God.

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This is our 848th post in 26 months.

We received only two donations yesterday for which we are very grateful, but we had 666 visitors to the site and 1,358 page views. As I said yesterday, I realize it’s easy to assume others will step in and contribute, but that type of thinking doesn’t work when everyone does it.

We’ve averaged less than 1 donation per day during the past week despite hundreds of visitors per day and thousands of page views. We’re not trying to get rich here, but this just isn’t working out for us.

Fred


Kelly Thomas case goes to the jury today

January 9, 2014

Thursday, January 9, 2013

Good afternoon:

The Kelly Thomas case will be going to the jury later today after Orange County District Attorney Tony Rackauckas, concludes his rebuttal argument.

The centerpiece of this case is a 33-minute videotape of the encounter between between police and Kelly Thomas. The video was recorded without sound by a security camera at the Fullerton Transportation Center where the encounter occurred. Audio recorded from body microphones worn by the police officers was added to the video to produce the exhibit used in court. The encounter was precipitated by a 911 call reporting a suspicious person attempting to break into parked vehicles.

There is no evidence that Thomas was the suspicious person.

Thomas lost consciousness, was hospitalized, and died five days later without regaining consciousness.

The two defendants are Manuel Ramos and Jay Cicinelli. Both were fired by the Fullerton Police Department after the incident.

Ramos is charged with second degree murder and involuntary manslaughter. Cicinelli is charged with involuntary manslaughter and use of excessive force.

Adolfo Flores of the LA Times sets the scene:

Rackauckas said Ramos was a bully who wanted to hurt Thomas, and Cicinelli crossed the line when he used his stun gun to hit the mentally ill homeless man in the face.

Orange County’s top prosecutor focused on what he said was a turning point in Thomas’ encounter with the police: Ramos slipping on a pair of latex gloves as he tells Thomas, “See these fists?…. They’re getting ready to —- you up.”

Rackauckas said Ramos’ threatening words and provocative actions turned a routine police encounter into a crime scene. The prosecutor said that once the officer threatened Thomas, the homeless man had a right to defend himself.

In the video, Thomas can be seen standing up and backing away from Ramos. Within seconds, Ramos and another officer begin swinging their batons at him.

Cicinelli can be seen arriving at the scene as the two officers struggled with Thomas on the ground. The video shows Cicinelli using his Taser multiple times to stun Thomas and then finally smacking the homeless man in the face with it.

“I just probably smashed his face to hell,” Cicinelli is heard saying after the struggle.

A photograph of Thomas’s face confirms what he said.

The prosecution’s theory of the case, which is supported by the medical examiner who performed the autopsy, is that Thomas died as a result of the beating and an inability to breathe caused by officers sitting on him and placing him in restraints.

The defense theory of the case is that the officers acted reasonably in response to Thomas’s resistance to their authority and his use of force. Defense counsel presented the testimony of several witnesses, including some members of his family, who testified that he had assaulted them in the past.

The defense presented the testimony of Steven Karch, a forensic pathologist, who testified that he died of heart failure due to an enlarged heart caused by the prolonged use of methamphetamine.

However, no trace of any drugs was found in his blood and the prosecution rebutted the defense expert with the testimony of Dr. Matthew Budoff, the program director for cardiology at Harbor-UCLA Medical Center. He testified that CAT scans and X-rays of Thomas’s heart showed that it was normal with no evidence of heart failure.

Neither defendant testified.

Murder requires proof of malice aforethought whereas proof of manslaughter does not.

Malice can be actual or implied and the prosecution has accused Manuel Ramos of acting with implied malice, or extreme recklessness. To prove that Ramos acted with implied malice, the prosecutor must show that Ramos committed (1) an unlawful act resulting in dangerous consequences, and (2) he knew about the danger of the acts, yet consciously and deliberately disregarded the danger to human life.

In People v. Watson, 30 Cal. 3d 290 (1981) the California Supreme Court defined implied malice as a subjective determination that the defendant in fact realized that his actions had “a high probability … [of] … resulting in death … [and yet acted] with a base antisocial motive and with a wanton disregard for human life.” However, the prosecution does not need to prove that the defendant intended to kill.

Manslaughter is an unlawful killing without malice. If the jury were unable to reach a unanimous verdict on the murder charge against Manuel Ramos because the jurors could not unanimously agree that the prosecution had proven that he acted with malice, which seems unlikely given his statement to Thomas, as he was putting on his latex gloves, that he was going to f… him up, it would then consider the manslaughter charge.

Jay Cicinelli probably was not charged with murder because his statement about smashing Thomas’s face to hell was uttered after he did it. His after-the-fact statement makes it more difficult to discern his intent than is the case with Ramos’s statement before the assault began.

Ramos’s lawyer argued that the statement was merely a warning regarding what would happen, if Thomas disobeyed.

Whether the jury acquits or convicts the defendants ultimately depends on whether the jurors unanimously agree that the prosecution proved beyond a reasonable doubt that the defendant officers were using excessive force that resulted in Kelly Thomas’s death. I believe the video certainly establishes that.

I cannot predict what Anthony Rackauckas will say today, so I will repeat what he said at the conclusion of his opening argument.

Adolfo Flores and Paloma Esquivel of the LA Times described it as follows:

The final words of a 37-year-old homeless man filled the packed Orange County courtroom.

“Dad help me.”

“God help me.”

“Help me. Help me. Help me.”

Orange County Dist. Atty. Tony Rackauckas let Kelly Thomas’ voice provide an emotional undertone to his closing arguments Tuesday in a widely watched criminal case against a pair of Fullerton police officers accused of killing the homeless man in a furious beating on a summer night in 2011.

“I don’t know about you,” Rackauckas told jurors, “but I can’t recall ever hearing such pleas. Such crying. Such begging for his life. Ever.”

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Writing articles and maintaining this blog involves a lot of time and effort. This is our 845th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

We rely on you as you rely on us.

Please do not let us down. We have had only a few donations totaling less than $50 this week.

Thank you,

Fred


Closing arguments resume today in Kelly Thomas case

January 8, 2014

Wednesday, January 8, 2014

Good morning:

Closing arguments will resume today in the Kelly Thomas case with the case expected to go the jury by the end of the day.

Defense attorney John Barnett, who represents Manuel Ramos, will complete his final argument this morning. He spoke for about 90 minutes yesterday afternoon but did not complete his final argument before Judge William Froeberg recessed the trial for the day. After he finishes his argument today, defense attorney Michael Schwartz will give his closing argument on behalf of his client, Jay Cicinelli.

Orange County District Attorney Anthony Rackauckas completed his opening closing argument yesterday afternoon and will have an opportunity to rebut the arguments of defense counsel after Schwartz concludes his argument.

You can watch closing arguments via livestream right here, beginning at approximately 9 am PST.

You can review the arguments of counsel yesterday by going here.

Briefly, police responded to a 911 call reporting a suspicious person attempting to break into vehicles parked at the Fullerton Transportation Center. Defendant Manuel Ramos was the first officer to arrive. He encountered Kelly Thomas, a mentally ill homeless person he knew from previous encounters. After a brief conversation, Ramos put on plastic gloves and told him he was going to fuck him up. Thomas stood up and attempted to get away, but Ramos and another officer got him down on the ground and began beating him. Other officers arrived and the beating continued until Thomas lost consciousness. Ramos hit him with his baton and Cicinelli hit him multiple times in the face with his taser.

The incident was captured on videotape by a security camera and audio from body microphones worn by police officers. The prosecution spliced the audio and video together to create an exhibit that has served as the centerpiece of the trial.

The prosecution has presented expert testimony that Thomas died as a result of the beating. The defense has presented expert testimony that he died as the result of an enlarged heart weakened by methamphetamine use.

You can read my article yesterday summarizing the case here.

Adolfo Flores and Paloma Esquivel of the LA Times describe the end of Anthony Rackauckas argument yesterday:

The final words of a 37-year-old homeless man filled the packed Orange County courtroom.

“Dad help me.”

“God help me.”

“Help me. Help me. Help me.”

Orange County Dist. Atty. Tony Rackauckas let Kelly Thomas’ voice provide an emotional undertone to his closing arguments Tuesday in a widely watched criminal case against a pair of Fullerton police officers accused of killing the homeless man in a furious beating on a summer night in 2011.

“I don’t know about you,” Rackauckas told jurors, “but I can’t recall ever hearing such pleas. Such crying. Such begging for his life. Ever.”

Manuel Ramos is charged with second degree murder and involuntary manslaughter. Jay Cicinelli is charged with involuntary manslaughter and use of excessive force.

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Writing articles and maintaining this blog involves a lot of time and effort. This is our 840th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

Thank you,

Fred


Closing arguments expected today in Kelly Thomas case

January 7, 2014

Tuesday, January 7, 2014

Good morning:

Closing arguments are expected today in the Kelly Thomas case.

You can watch closing arguments via livestream right here.

The prosecution rested it’s rebuttal case yesterday after presenting the testimony of Dr. Matthew Budoff, the program director for cardiology at Harbor-UCLA Medical Center. According to Alfonso Flores of the LA Times, Dr. Budoff testified that,

CAT scans and X-rays of Thomas’ heart show no evidence of heart failure.

“He could’ve had some early stages of damage to his heart, but his heart was not weakened,” Budoff testified.

Thomas “would not have died of heart failure because his heart was still normal at this point,” he said.

In surrebuttal the defense recalled Dr. Steven Karch, a forensic pathologist who studies how drugs can affect the heart and cause death.

Here’s Flores’s description of his testimony,

Karch, who was called back to the stand Monday morning, previously testified that people who had a habit of using meth and then stopped taking it could still be affected years later.

On Monday he stuck to his previous testimony that Thomas’ meth abuse caused his heart to thicken and scar.

Thomas died of cardiac arrest because the damage to his heart didn’t allow it to function properly, Karch said.

“Is there anything in Dr. Budoff’s testimony that changes your opinion as to the cause of Kelly Thomas’ death?” asked John Barnett, Ramos’ attorney.
“No,” Karch said.

In his previous testimony, Karch wouldn’t say whether Thomas’ fight with police on July 5, 2011, caused his heart to fail but said it could be a possibility.

Karch and Budoff said they were being paid $750 an hour for their testimony. Karch was also paid $750 an hour to review files in the case and Budoff was paid $400.

As I said yesterday,

Previous testimony has established that he did not have any drugs in his system and that he was apologizing to officers and complaining that he could not breathe as they continued to sit on him and beat him with a baton and a taser.

The beating was recorded by a security camera.

Thomas went into a coma and died five days later in a hospital without regaining consciousness.

Manuel Ramos is charged with second degree murder and Jay Cicinelli is charged with involuntary manslaughter. The former police officers were fired by the Fullerton Police Department after the incident.

I believe the defense has an uphill battle with this case because the videotape left no doubt in my mind that the officers beat him to death.

Although this case may seem like a battle of expert witnesses, California does recognize the eggshell skull principle that an actor takes his victim as he finds him and he cannot escape legal responsibility for his actions because he did not know that his victim was peculiarly susceptible to injury. In other words, even if the jury were to believe Dr. Kerch’s testimony that Kelly Thomas died from a weakened heart, that would not necessarily result in an acquittal. Depends on the specific wording in the jury instructions.

Presumably, the prosecution requested such an instruction.

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Writing articles and maintaining this blog involves a lot of time and effort. This is our 838th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

Thank you,

Fred


Trial resumes today in Kelly Thomas case with final arguments expected this week

January 6, 2014

Monday, January 6, 2014

Good morning:

Trial resumes today in the Kelly Thomas case after a two-week break for the holidays. The prosecution is presenting its rebuttal case and will be calling Dr. Matthew Budoff, a cardiologist at Harbor-UCLA Medical Center who will testify that Thomas died from injuries inflicted by police during a beating and not, as claimed by the defense, from an enlarged heart weakened by many years of methamphetamine abuse.

Previous testimony has established that he did not have any drugs in his system and that he was apologizing to officers and complaining that he could not breathe as they continued to sit on him and beat him with a baton and a taser.

The beating was recorded by a security camera.

Thomas went into a coma and died five days later in a hospital without regaining consciousness.

Manuel Ramos is charged with second degree murder and Jay Cicinelli is charged with involuntary manslaughter. The former police officers were fired by the Fullerton Police Department after the incident.

Final arguments are expected this week.

For more information, go here to read Adolfo Flores’s article today in the LA Times. He has been covering the case for the paper.

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Writing articles and maintaining this blog involves a lot of time and effort. This is our 836th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

Thank you,

Fred


Jury in Kelly Thomas case will be instructed to disregard police testimony that defendants did not violate use-of-force policies

January 5, 2014

Sunday, January 5, 2014

Good morning:

Adolfo Flores of the LA Times is reporting that the Kelly Thomas case will be submitted to the jury this week with an unusual instruction that orders them to disregard opinion testimony by Corporal Stephen Rubio and Sergeant Kevin Craig of the Fullerton Police Department.

Rubio, a former use-of-force trainer with the department, testified that the amount of force used by defendants Manuel Ramos and Jay Cicinelli to subdue and arrest Kelly Thomas did not violate departmental policies regarding use of force.

Craig testified that, because Thomas continued to struggle, Ramos and Cicinelli did not use excessive force when they continued to sit on him ignoring his apologies to officers and his pleas that he could not breathe.

This evidence was elicited by the defense and opened the door to permit the prosecution to introduce evidence rebutting their testimony. Because both officers were fired after an internal investigation of the Thomas incident, the prosecution filed a motion seeking production of the confidential personnel and internal investigation files of both officers.

Judge William Froeberg granted the motion and ordered the department, which is represented by the City of Fullerton, to release relevant portions of the files. The city appealed and the Court of Appeals affirmed his order late last week.

You can read my analysis of the legal issue here.

The relevant portions of the files are not going to be introduced into evidence probably because they are hearsay and represent irrelevant opinions by others regarding the conduct of the two officers. I use the word “irrelevant” because their use of force in this criminal case must be judged by the California statutes and not some departmental rule or regulation. Even if the language were the same, the hearing examiner’s decision would not be binding on the jury.

I believe Judge Froeberg probably should have sustained objections to questions by defense counsel seeking to elicit the opinions of the two officers (I am assuming the prosecution objected in timely fashion). Now that the problem created by their irrelevant testimony is in focus, I think he has decided that the best way to deal with it is to order the jury to disregard the opinions of the two officers.

The other alternative would be to grant a mistrial, but that would be dangerous solution because the Double Jeopardy Clause might prohibit a retrial.

Although orders to disregard evidence can create an unringing-the-bell problem, I have found that juries do abide by them. Therefore, I believe Judge Froeberg’s solution to cure the error in admitting the irrelevant opinion evidence of the two officers will work.

The prosecution has one more witness to call before resting its rebuttal case.

Here’s Adolfo Flores of the LA Times,

Prosecutors are expected to call Dr. Matthew Budoff, a cardiologist at Harbor-UCLA Medical Center, to the stand Monday morning to testify that Thomas didn’t die as a result of an enlarged heart.

Defense lawyers have argued and presented evidence to show that Thomas died not because of chest compressions during his struggle with police, but because he had a bad heart from prior drug use.

We should see final arguments this week, assuming that the defense will not present surrebuttal evidence. That means the jury should get the case before the end of the week.

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Writing articles and maintaining this blog involves a lot of time and effort. This is our 835th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

Thank you,

Fred


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