Defense claims Kelly Thomas death caused by weak heart

Friday, December 6, 2013

Good evening:

Our lives continue to be an adventure. I was too busy to post a new article yesterday because my motorcycle engine inexplicably stopped running a couple of miles from home. I managed rather nicely to bale out into a nearby church parking lot and safely bring it to a stop and that is where it shall remain until last night’s ice storm and today’s blizzard end and the roads are cleared.

I spent most of yesterday trouble-shooting the problem and trying to get it started. Have plenty of gas and the battery is in good shape. High and low beams, turn signals and brake light are fine, but nothing happens when I push the ignition button. Electrical wires all appear to be in good shape and properly connected. Oil and anti-freeze are OK.

Just before the engine stopped, I noticed that the kickstand was not fully raised, so I attempted to raise it with the back of my left foot. When I did that, the engine stopped. As a safety precaution, the ignition will not work when the kickstand is down, unless the engine is in neutral. There is no reason I can think of to explain why raising the kickstand would kill the engine.

Would appreciate any advice regarding how to get the motorcycle started. If I can’t do it, I am going to have to have it towed to the repair shop.

Meanwhile the cupboard was bare and the closest grocery store is a 4 mile round trip by foot.

We could use a sled and a team of husky dogs.

Can you say, “Mush?”

And now, we return you to your regularly scheduled program.

I am going to discuss two related issues that have come up in the Kelly Thomas case: cause of death and gruesome photographs.

The defense claim that Kelly Thomas died because of a weak heart is one of the most ridiculous arguments I have heard in a long time, given the videotape of the police beating and the injuries they inflicted.

As most of you know, the prosecution has to prove that the cause of death was unlawful, that is, that his death resulted from the unlawful conduct of another person or persons, as opposed to a suicide or the result of natural causes.

According to Adolfo Flores of the LA Times,

Aruna Singhania, an Orange County coroner’s office pathologist, testified that Thomas died of brain damage from lack of oxygen caused by chest compression and injuries to his face.

Singhania said that after examining Thomas’ body she couldn’t determine the cause of death but reached a conclusion about three months later after conducting a toxicology report, a microscopic review and watching the video of the 2011 beating.

John Barnett, Ramos’ attorney, pressed the pathologist, saying her testimony was inconsistent with the preliminary hearing when she pointed to a single moment in the beating as the cause of death.

[Note that this is a good example of impeachment by prior inconsistent statement where the witness is accorded an opportunity to explain why the statements are inconsistent. Her explanation follows.]

Singhania said she had been misled in the preliminary hearing questioning and that there was not a single instance of compression during that struggle that caused Thomas’ death. He lost his ability to breathe as the beating progressed, she said.

“It’s a constellation of injuries, not one single injury,” Singhania responded.

At one point Barnett asked her if the compression occurred when Thomas was screaming for his father to help him and Ramos was holding his feet.

“I’m going to correct myself,” Singhania said, referring again to her preliminary testimony. “Compression occurred but the intensity is not there, there’s no one-time compression … you never asked about the intensity.”

During opening statements in the trial Monday, defense attorneys said Thomas died because he had a bad heart due to prior drug use, not from injuries suffered in the struggle.

At times Barnett’s cross examination became heated.

“But you determined a discrete event on the video which showed compression, which you cited as the cause of death right?” Barnett asked Singhania.

“Again, this has gotten misinterpreted,” Singhania said.

“You know this is a problem for the case don’t you?” Barnett responded.

The cross examination from Barnett and Michael Schwartz, who is representing Cicinelli, lasted nearly three hours.

Details are important, as you know from our review of the forensic evidence in Trayvon Martin’s case regarding the position of the gun when Zimmerman fired the fatal shot, the trajectory of the bullet after it entered the body, and the misalignment of the two holes in the sweatshirts with the fatal wound. Neither side mentioned the misalignment or gave any indication that they were aware of its significance; namely, that Zimmerman was restraining Trayvon preventing him from getting away by gripping both of his sweatshirts with his left hand when he fired the fatal shot with his right hand.

The embarrassing war between the prosecution and defense pathologists regarding cause of death in the Kendrick Johnson case also serves well to emphasize the importance of attention to detail and documenting what you see.

Use of photographs to document an event or injury and preserve its appearance for review at a later time has been a standard operating procedure in forensics for more than a century. Not all photographs are admissible, however. For example, where there are duplicative photos, only one will be admitted.

When photographs display gruesome or horrific injuries, prosecutors and defense counsel often will disagree regarding their admissibility. Due to the shock value of gruesome photographs, prosecutors figure more is better while defense counsel figure that less is best.

Not surprisingly, a judge’s decision regarding admissibility will be dictated by the issues in the case. In other words, a gruesome photograph will be admitted, if it has probative value regarding an element of a crime charged or disputed issue in the case. For example, a gory close-up of an entry or exit wound in a gunshot death case would be admissible because it would help an expert to form an evidence-based opinion regarding the distance between the muzzle of the gun and the entry wound. In turn, that distance would help a jury to determine the circumstances that existed when the fatal shot was fired. Therefore, admissibility of graphic or gruesome photographs will depend on probative value, not gruesomeness.

I believe the weak-heart defense is unlikely to prevail. You take your victims as you find them. The prosecution does not have to prove intent to kill. Given the nature and extent of the beating that was preserved on videotape, regardless of the condition of his heart, I do not believe there is any doubt that the beating resulted in Kelly Thomas’s death.


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25 Responses to Defense claims Kelly Thomas death caused by weak heart

  1. Malisha's son says:

    1. I agree, the defense has a most ridiculous argument. I was thinking about this the other day. (A) car hits person (B) person’s neck breaks (C) person is either paralyzed or killed. Defense claims week bones. “But if s/he had been more flexible this wouldn’t have happened!” We all also need to be yogis and contortionists. Or entirely cartilaginous.

    2. Raven’s got it about right. Typically, there are two branches through which the ignition signal can travel – either the kickstand position switch and/or the neutral transmission switch. Depending on what bike you have, it’s most likely that the kickstand switch is literally just a push-button positional switch. If after the engine died and you were in the parking lot, you attempted to start the bike in all the normal ways, I’m afraid you’re in the Electrical Zone. For my money, it’s scarier than the Twilight Zone, and makes as much sense. Double check all the connections around the kickstand switch, and it is possible to “jump” the connection past it, but if you tried starting in neutral, it shouldn’t have mattered. I can do a little more looking. Let’s start with this:

    Year, make, model of your motorcycle?

    And I can offer this: depending on how large/low your motorcycle, most people with even a compact pickup truck, a good motorcycle loading ramp, and two good cam-buckle straps can transport your bike wherever it need to go.

  2. The Raven says:

    “As a safety precaution, the ignition will not work when the kickstand is down, unless the engine is in neutral. There is no reason I can think of to explain why raising the kickstand would kill the engine.”

    The sensor that responds to “kickstand down” might be broken. If there is a computer reading the sensor output, that also might be broken. Can the sensor be bridged in some way? if it is a simple switch, that might be possible.

    Don’t have anything to say about the legal issues, however.

  3. bettykath says:

    The trial of fogen was really about white privilege. White privilege won. This could be a trial of cop privilege. Prosecutors know how to lose cases, too, as we have seen. The prosecution of Amadou Diallo’s killers was done by using a Black prosecutor (who wanted to advance his career) in a “neutral” venue, Albany instead of NYC. Race was never mentioned. The cops walked. Four plainclothes cops; unarmed man reaches for his ID (wallet); “gun”; 41 shots, 19 of which hit Diallo; Diallo is dead. Feds didn’t press charges. Family got $3M in wrongful death settlement. Consider close range, more than half the bullets missed their target. Fortunately for the other tenants, they weren’t in the hallway or on the other side of the walls.

    • Two sides to a story says:

      That case was horrific. THere’s no excuse for shooting someone that many times before you even see what someone has in their hand. Ridiculous.

  4. Malisha says:

    So now a person cannot be murdered unless he is (a) in perfect physical condition and could train Marines at Boot Camp; (b) in such a posture as to immediately appear non-threatening to the most pusillanimous paranoid and the most rage-filled hatred-infused warmonger; and (c) without arms and legs [please ignore any mutual exclusivity with section (a) above] so as not to make any defensive moves that could be misinterpreted as aggression.

    Right? The rest of us can be murdered and our murderers will walk. And then become folk heroes.

    • MDH says:

      For a black male, option (a) creates a Catch 22 in that meeting the aforementioned criteria implicitly creates a 150 pound super fighting machine, thus allowing the murderer to claim he was in fear for his life.

  5. colin black says:

    Death caused not by weak heart but lack of heart by the officers beating him.

  6. gblock says:

    Professor, based on my memory of the Trayvon Martin shooting case, I think that your comment is partly incorrect. The misalignment of the bullet holes was mentioned during the defense’s case, and it was interpreted as being caused by the 23 ounce drink can in the pocket of Trayvon’s hoodie weighing it down as he leaned over Fogen. I don’t think that either side talked about how, in that case, the hole in the other shirt lined up so well with the hole in the hoodie. Would the two sweatshirts really cling to each other completely enough to produce such a result?

    • gblock says:

      On a related topic, what about the drink found in Trayvon’s hoodie pocket, with the bag that the drink apparently had been in originally being found nearby? We know that when he left the 7-11, he was holding the bag with the drink. If he had decided to put the drink in his pocket just at that point, isn’t it more likely that he would have left it in the bag? Is it possible that he dropped the bag, the drink rolled out of it, and he picked up the drink and put it in his pocket and left the bag? Or is it more likely that Fogen picked up the drink and put it in Trayvon’s pocket after Trayvon was dead?

      I remember this issue being discussed once or twice quite a few months ago, but I don’t recall whether any conclusions were reached or alternate explanations put forward. If anyone either remembers the earlier discussion or has an opinion or explanation, I would love to see it.

  7. aussie says:

    If it is designed to not start when the kickstand is down, that would be a mechanical switch. Check that for (a) being frozen and (b) being broken inside.

    I’m thinking of a car I had trouble with. The brake lights were meant to come on controlled by a drop-switch above the pedal. Depress the pedal, part of the switch would drop down, causing the light to come on. This broke inside so it never dropped, so never any brake lights. Your kickstand safety switch might be something similar, cutting electricity to the engine. If you can remove it you could “hot wire” it to get it home, but do replace it eventually as it sounds like a useful safety feature.

  8. ay2z says:

    Nice troubleshooting? Great to find that it’s something completely planned by the engineers, a mystery until you experience it first hand and figure it out.

    -17 tonight, that’s degrees C. Freezing here, hope the weaker battery in the car will hold up. BUT not freezing rain!

    The Vancouver area SPCA is still looking for good homes for the recent crop of Whistler skihill area sled dogs. After the horrendous and useless slaughter of the dogs once the customers were not there, the company has handed the ‘used’ dogs for rehoming.

    Sad throw away culture to give people sled rides. If you need a pack or two… 🙂

  9. MDH says:

    What a ridiculous defense.

    “Gee, we beat him to a pulp and his weak heart could not take it, so we are free to go”

    The law of individual differences mandates that each person’s tolerance for a beating is not the same. So what determines a proper level of a beating that, in and of itself, was not warranted?

    So the weak {weak often being based on very subjective evidence} just die and the cops get away with it.

    The same tactic was used in the Malice Green case.

    And in the case of Steve Biko.

    The point should be that law enforcement only use force needed to restrain or detain. In our sick society, there seems to be way too many people who think some extra corporal punishment is ok.

    It is not and any damages that result from it should be severely punished.

    • Dave says:

      In the Malice Green case, the “weak heart” defense didn’t fly with the jury and Officers Budzyn and Nevers were both convicted.

    • gblock says:

      Even if the jury somehow bought the weak heart defense, wouldn’t it still be at least assault and battery, and perhaps manslaughter, if the beating was found to be excessive given the circumstances?

  10. mentalitynow says:

    No court today….Its a shame it took so long to get to trial. Man, sounds like an interesting issue with your motorcycle. I hope you get that figured out. Ride safe…

  11. dianetrotter says:

    This is ridiculous. We saw the beating. We heard the guy screaming for his dad and saying he was sorry. The beating was brutal enough to cause a heart attack.

  12. Two sides to a story says:

    “At the end, when Judge William Froeberg asked if Singhania should be excused or placed on call to return as a witness, Orange County Dist. Atty. Tony Rackauckas said she should be excused.

    When Froeberg excused her, Schwartz smiled at Barnett and winked.”

    From LA times link above –,0,5356656.story#ixzz2mk8b5NOe

    So apparently the defense attorneys thought they won that round? : /

    • I agree that they won that battle, but a trial is a war and they have a long way to go.

      • crazy1946 says:

        Professor, Tell me you checked the kill switch on the right handle bar control bezel?

        • crazy1946 says:

          Professor, Which model of Harley do you have (Sporster, FLD, etc)? When you hit the starter button does it do anything, even dim the lights? Does it have after market bars on it with thru the bar wiring? Have you put it in gear and rocked it back and forth to see if the starter is locked to the starter ring on clutch pack housing? My 2002 FXST does not have the starter safety switch on the kick stand like yours does, but did you check and see if the switch had broken? I know you did check the fuses, right? If the bike was in front of us, we could probably find the problem, but long distance, is awfully hard….

      • Two sides to a story says:

        Ugh. I hope the jury sees it all differently, both this battle and the rest of the war. I pray the OC jury has no tolerance for PD BS.

  13. Two sides to a story says:

    Great article. I can only hope that Cali juries are far better instructed than in FL and that they’re not at all impressed with defense tactics.

    Wish I was a mechanical wizard. You certainly have a mysterious cycle problem. Hope it’s solved soon.

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