Hearing today in Kelly Thomas case: UPDATED BELOW

Friday, December 27, 2013

Good morning:

The trial of two former Fullerton police officers, Manuel Ramos and Jay Cicinelli, charged with killing Kelly Thomas has been in recess this week. With the exception of a hearing today that will take place outside the presence of the jury, the trial will resume on January 6th with a continuation of the prosecution’s rebuttal case.

Ramos is charged with second-degree murder and involuntary manslaughter, Cicinelli with involuntary manslaughter and excessive use of force. Neither defendant testified.

The issue the court will decide at today’s hearing is whether it will permit the prosecution to introduce the personnel records of the two former officers into evidence to rebut the testimony of the use-of-force expert called by the defense. This is a rule 404(a)(1) opening-the-door issue.

Rule 404(a) generally prohibits the prosecution from introducing evidence of a defendant’s character to prove that he had a propensity to commit the crime charged. Rule 404(a)(1) creates an important exception to this general rule by permitting the prosecution to rebut evidence of a relevant character trait offered by the defense. The rationale for this exception is that the defendant opens the door by introducing the evidence thereby permitting the rebuttal.

Rule 404(b), which permits the prosecution to introduce specific acts of misconduct committed by the defendant, does not depend on the defense opening the door. Such evidence may be offered at any time to prove the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Of course, such evidence must be probative or relevant to an issue in the case.

The use-of-force expert called by the defense was the officer who trained the two defendants. He testified that, after watching the video, he concluded the two defendants did not use excessive force or violate any departmental rules.

The prosecution claims that the incident reports filed by the two defendants should be admitted to rebut the testimony of the use-of-force expert.

Both officers were permitted to review the video before they wrote their incident reports. This is unusual as I am not aware of any police department that would permit this to be done.

Normally, police reports are inadmissible hearsay unless used to impeach the author of a report by introducing his prior inconsistent statement.

This our 826th post.

UPDATE: The prosecution asked the judge to order the Fullerton Police Department to turn over its internal investigation file regarding the incident with Kelly Thomas. The investigation resulted in a decision to fire defendants Ramos and Cicinelli. The prosecutor wants to review the file because he believes the two were fired for violating department policies. He argued that the defense had opened the door to admitting such evidence when it elicited testimony from the use-of-force expert that he had watched the video and the two former officers had not violated department policies.

The defense called the use-of-force expert. He is a corporal employed by the Fullerton Police Department and he taught the two defendants regarding appropriate use of force.

The judge ordered the department to turn over the file to the prosecutor and scheduled another hearing at the end of next week to consider whether any of the information in the file is admissible. In the meantime the City of Fullerton, which is representing the department, can seek appellate court review of the judge’s decision should it desire to do so.

I believe the judge made the correct ruling pursuant to Rule 404(a)(1) since the contents of the file may contain relevant admissible evidence to rebut the defense expert. By testifying that the two officers did not violate department policies, the defense opened the door for the prosecution to admit evidence that they did violate department policies.

When I was trying cases I exercised considerable caution to avoid opening doors. The last thing I wanted to do was to hurt my client and make a bad situation worse.

Whether the file contains the hammer that the prosecutor is hoping to find remains to be seen. There is no doubt that the department fired the two defendants for cause. Given the disturbing video, I suspect they were fired for violating department policies regarding use of force.

Defense counsel should know the answer. I would certainly question their judgment in eliciting testimony from their expert that the two officers did not violate department policies regarding use of force, if they knew their clients were fired for violating policies regarding use of force.

If that is what happened and the defendants are convicted, I would expect them to argue on appeal that they were denied effective assistance of counsel, a Sixth Amendment violation.

Whether that claim would be successful pursuant to Strickland v. Washington, 466 U.S. 668 (1984), would depend on whether defense counsel’s conduct was so far out of bounds that no reasonably competent criminal defense attorney would have elicited that testimony from the use-of-force expert knowing that his client had been fired for violating department policies, and (2) the misconduct was material such that it undermines confidence in the verdict.

Based on the notion that hindsight is 20-20, the SCOTUS specifically exempted tacticcal decisions by counsel as a legitimate basis for an ineffective-assistance-of-counsel claim. Assuming defense counsel consciously decided to risk opening the door by eliciting the use-of-force expert’s opinion that the defendant’s did not violate department policies regarding use of force, I doubt that defense counsel’s decision could reasonably be characterized as a tactical decision, if they knew the department fired their clients for violating department policies because they would have violated an ethical rule that prohibits lawyers from misleading the tribunal. Actionable misrepresentations before the tribunal cannot be excused as tactical decisions.

Since I have not watched the trial, it’s not possible for me to determine whether the error was material, assuming for the sake of argument that defense counsel erred and the defendants are convicted.

I have watched the video several times, however, and I think it speaks for itself.

With the exception of the hearing yesterday, which occurred outside the presence of the jury, the judge recessed the trial for two weeks (last week and next week).

The trial is scheduled to resume on Monday, January 6th with the prosecution continuing to present its rebuttal case. Depending on whether the department fired the officers for violating department policies regarding the use of force and whether the judge permits the prosecution to introduce that into evidence, the prosecution might rest its rebuttal case on Monday or Tuesday.

The defense would have a chance for surrebuttal, assuming it has evidence to present that rebuts the evidence presented by the prosecution in its rebuttal case.

Both sides have indicated that they expect to argue the case to the jury during the week of January 6th, so we are getting close to the end of the trial.

29 Responses to Hearing today in Kelly Thomas case: UPDATED BELOW

  1. Simply the best writing i’ve seen on the web today. While all the other outlets are on a slow vacay today, your piece is current, fascinating and fortunately with a positive coda for the day, regarding this case.

    Thank you Professor. Why I come here. Donation on the way.

  2. I have updated this article with important information about what happened at yesterday’s hearing.

    I recommend y’all read it because it contains specific information that I did not know when I wrote the article.

    Readers will have a much better understanding of the importance of what is at stake in the trial and how the outcome of the prosecution’s request might affect a possible claim by the defendants of ineffective assistance of counsel, if they are convicted.

    Meanwhile, I am working on an article comparing yesterday’s decision by Judge William H. Pauley that the NSA bulk collection of telephony metadata does not violate the Fourth Amendment to Judge Richard Leon’s decision last week that it does.

    I hope to publish the article by noon today, so stay tuned.

  3. bronxlady1 says:

    Firstly, I’d like to offer my condolences to the family of Kelly Thomas. I can’t understand why a police officer would do something like what I saw done to Kelly, to Kelly’s face. No matter what Kelly may have been doing, he was a living, walking, talking human being. And as for Officer Ramos, his intentions were pretty obvious. He just kept at the guy. Man! It is heart-breaking. And of course the person who trained these men isn’t going to see anything wrong with their mis-conduct. He trained them. It’s like expecting George Zimmerman’s parents to see anything wrong with their son’s killing of Trayvon Martin. Not going to happen. Honesty and truth are on holiday.

  4. stan says:

    Whoever said only ‘007’ had a license to kill ain’t left his cave for a while.
    However, who would dare quibble with the motto, “To Protect and Serve.”
    After all the truth is there for all to see:
    They protect themselves.
    They serve the whims and desires of the egalitarian, oligarchic lords and ladies of this quasi-feudal American realm.
    We have met the enemy and they are us.

  5. Brandy says:

    O/T Just read Shellie Zimmerman was hit by a drunk driver today. They were both in their vehicles. Man was arrested for DUI. Shellie appears to be okay except for bruising from airbags. Both vehicles were towed with major damage.

    • Malisha says:

      Well I sure hope the guy who got arrested for hitting her can get the kind of lawyer she got and Fogen got, so HE gets off without any negative consequences for HIS criminal act. That’s what equality is for.

  6. lady2soothe says:

    Trayvon Martin Nativity Display At Claremont United Methodist Church Urges Us Not To Forget Gun Violence Victims


    Trayvon Martin hasn’t been forgotten at Claremont United Methodist Church in Claremont, Cali.– in fact, he appears front and center in their Nativity display. He serves as a bloody and tragic reminder of the dangers of gun violence and racial privilege in today’s America, reports David Allen of the Inland Valley Daily Bulletin.

    Amongst the traditional holy family, Martin sits hunched over in his iconic black hoodie, blood pouring from his chest and pooling at his feet, reports Patch.com. The title of the scene, “A Child is Born, a Son is Given,” is outlined within the blood and evokes themes of both Christmas and Easter, according to artist John Zachary, who has been creating thought-provoking displays since 2007.

    Zachary told Allen in an interview that the acquittal of George Zimmerman, who fatally shot the unarmed teenager in 2012, “struck him as a worthy subject for Christmas comment.”

    “There is no better time to reflect on gun violence than advent, when we celebrate the birth of Jesus,” says a sign at the church.. “Jesus was born into a state of total vulnerability as an innocent, unarmed child during a time of great violence much like Trayvon Martin.”

    As families gather together at Christmas to celebrate, Zachary hopes to get them to think long and hard about their own blessings and privileges. He told Allen that many Christmas traditions of gifts reflect “privilege, and there’s a lot of people who don’t have that privilege. Maybe I should do something that’s provocative, that’s more in keeping with the teachings of Jesus.”

    This isn’t the first time that the church has used the Nativity as an opportunity to remind people about issues of social justice and inequality, which probably would have been of great concern to Jesus himself. Past displays have included Jesus and Mary as a homeless couple struggling to feed their newborn child, as Iraqi refugees next to U.S. soldiers, as immigrants from Mexico stopped by the wall at the border, among others. In 2011, Zachary’s Nativity display was of the outlines of three couples, two of them same-sex, gathering under the banner “Christ Is Born.”

    Sharon Rhodes-Wickett, lead pastor at the church, told Allen that she finds this year’s scene difficult to look at, due to its violence. “It’s hard to look at a young man who’s shot and bleeding to death,” she said. “But even though I’m uncomfortable, that’s the point. We have to take a look at the violence.”

    Response to the display has been surprisingly muted. “I thought this would be more controversial, but I come to find out people don’t really like people getting shot,” Zachary told Allen. “They may not agree what to do about it, but they agree it’s a bad thing.”

    Rhodes-Wickett said that her congregation is progressive, and that “Most people like something that makes us think and makes us search our hearts.”

  7. bettykath says:

    Thank you for the update.

    I posted additional information about Devyani Khobragade on that thread. There’s an interesting back story.

  8. MDH says:

    This quote makes me sick:

    “The use-of-force expert called by the defense was the officer who trained the two defendants. He testified that, after watching the video, he concluded the two defendants did not use excessive force or violate any departmental rules…”

    Let me get this straight.

    The gruesome injuries were not the result of excessive force that was life threatening?

    Yet, we have another “use of force” expert who testified that the minor cuts on George Zimmerman and that fact that he was in a death struggle with a teen 50lbs lighter than himself, rather than Kelly Thomas who was being hit by multiple large men, justified George killing his aggressor.

    • fauxmccoy says:

      good call MDH.

      reckon this gives us a big clue as to the value of ‘use of force’ ‘experts’.

    • Use-of-force “experts” are not disinterested parties. Most are cops or ex-cops and in this particular case the guy trained the two defendants. Unreasonable to expect that he would be an unbiased witness.

      Besides, I have a problem with these guys because I don’t believe their testimony is helpful to the trier of fact. They start off with the belief that it’s OK to use deadly force whereas I believe it should only be used as a last resort. Because of their bias and natural inclination to support rather than criticize a fellow officer’s use of deadly force, I don’t believe they are qualified to express an opinion that would assist the trier of fact to determine a disputed fact. That is, they are more likely to confuse the trier of fact since they are advocates rather than objective third party observers.

      Of course, a skilled cross examiner should not have much difficulty exposing them for what they really are, but not every lawyer knows how to do that effectively.

      • MDH says:

        I agree.

        And add that the “expert” in the defense of Zimmerman floated the KKK approved “all blacks are strong, athletic and inherent fighters” racist meme. I have notice cops do that a lot. It fools people with little or no exposure to black people as B37 aptly showed.

        Skilled cross examination is a must for anyone really doing their job.

        Racheal was tortured on the stand. The point being that there is a common view amongst racists that black people lie and have unreliable memories.

        I would have “tortured’ the gym owner and the use of force expert, if I was a prosecutor. My point would have been to show that people who float racists concepts are liars who should no longer have any part of our society.

        Sadly, the prosecution in that case was “in” on the dog and pony show.

      • Malisha says:

        I’ll bet that the two were fired NOT for the excessive use of force, but for somehow lying on their police reports. I will bet that the department would do ANYTHING rather than to fire these two for what they knew would be torts. The information about why they were fired, however, SHOULD be revealed after a police expert who TRAINED them testified in their defense, because it is relevant to their conduct as officers, and only as OFFICERS did they get to make decisions about how much force to use. Thus, their judgment as officers, in globo, should be of evidentiary value. What some other cop says about it AFTER the fact does not change how THEY decided to act at the TIME they killed this man.

      • Kelly Payne says:

        Thats why so many crooked cops get away with it.

  9. fauxmccoy says:

    heya prof, crane et al —

    thanks for the continuing articles and comments. i am still caring for my broken mom 24/7, but i am able to read here a bit, just not much time for thoughtful comments.

    we managed to have a nice holiday in spite of everything and one of my bros is relieving me for the weekend, staring in less than 24 hours. yeee haw!

    hope you all had lovely holidays as well.

    • I hope you get enough time off to recharge your batteries. You won’t be doing her any good or your family either, if you run yourself into the ground and get sick.

      Take care of yourself. We miss you and include you in our prayers.


    • William Walton says:

      Faux, hope you had as good a holiday as possible. Too bad there are not old MD’s around like my Dad. He would have a patient who was home bound and would make house calls on them and not charge the family. The family would say Doc you don’t have to do this. He would reply, I know but I took an oath upon graduating Med School and I plan to live up to that oath. I would accompany him and there were always good things to eat for a kid. It is good to hear of family taking care of family. Peace be with you.

    • roderick2012 says:

      Faux, make sure to take time for yourself first.

      My mom was at the breaking point with my grandmother right before she passed back in October 2011 and I even suggested that my mom consider putting her in a nursing home.

      Thankfully my mom didn’t have to make that choice but my grandmother did get to the point where she wanted my mom to feed her a few months before she passed.

      Don’t try to be superwoman and ask for help BEFORE you burn out.

      • fauxmccoy says:

        thank you kindly, roderick.

        i make my brothers take the weekend shifts so i can get home to my own family. it’s not much, but it really helps.

        in 2 weeks, one of my mom’s younger (but not by much!) sisters is flying out from georgia to stay with her. that will help a lot. i know i will still have to help out, but it won’t be all day/every day. if they both remain upright and no one falls, it should be fine. 🙂

        • roderick2012 says:

          Faux, at least you have assistance from your siblings.

          My mother’s older sister who is her only sibling found every excuse in the book not to step foot outside her house when my grandmother was alive

          At least my mom was able to vent to me or she would be in the loony bin right now.

          • fauxmccoy says:

            this is true, roderick… although their help is somewhat begrudging and requires some arm twisting. they somehow think that because they have jobs and i am merely a disabled housewife, that i’m the right person for it all. i disabuse them of this notion routinely.

            it is interesting to note that in times like this, those old sibling roles come back to reassert themselves. i will forever be the oldest, the only ‘girl’ and the one that took care of my bros when my original family unit self destructed. i’m sure your mom experienced a similar outcome with her siblings during the process.

  10. Malisha says:

    It would seem to me that if the defense puts ANYTHING affirmative into evidence, it would be obvious that the prosecution should be able to put “prior bad acts” or “propensities” into evidence to rebut whatever the defense put in.

    It is also very obvious that allowing the officers to view the video before writing it up was tantamount to the department admitting that what they did had to be “artfully re-described” to cast it in a false light. They were given the opportunity to make up excuses for whatever was obviously uncontrovertible once the videos were seen. This tells me that no matter what evidence is gathered, cover-up artists find ways to create impressions that can neutralize real evidence. We are hopeless. Our court system is a lie. A big one.

    That’s why it carries so much credibility. It is the BIG LIE that will be believed.

    • It’s truly frightening how easily the truth can be subverted in courts of law. The video of this incident speaks for itself. My only comfort is that karma is immutable.

      • Malisha says:

        My only comfort is that karma is immutable.

        Yes, that’s why we have karma. For comfort. After all, drugs are not cheap, religion is deficient in many respects, sex is not always available and satisfactory, and rich food has too many calories. If, for instance, Fogen won on all counts forever and was universally loved, rewarded and idolized; and cops were always absolved for whatever murders they choose to commit, and then got awards and commendations; warlord judges were affirmed and blessed forever for every crime they commit or absolve on the bench; and we never have the benefit of the “good ending,” then what?

        We really need karma. That’s why it never fails.

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