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

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

  1. gblock says:

    In other news, I have heard that Jahi McMath is no longer at children’s hospital, although the reporter didn’t know where she is currently.

    • Yes, according to NBC News, she was released to the family via the coroner last night a little before 8 pm. Her family had a critical care team in place to make the transfer and transported her from the hospital in a private ambulance. Her lawyer, Christopher Dolan, did not disclose her destination.

  2. gblock says:

    Professor, I have heard of instances (in California) in which a mistrial was declared due to a hung jury and the defendant was re-tried. Is there any particular reason that it would be disallowed in a circumstance like this one?

    • The Double Jeopardy Clause prohibits trying a defendant more than once for the same crime. If a jury cannot reach a verdict, the prosecution can retry the defendant without violating the Double Jeopardy Clause because the first trial was incomplete by ending without a verdict.

      Similarly, if a defendant is convicted and the conviction is set aside on appeal, he can be retried without violating the DJC because the result is incomplete.

      The defendants in this case have a right to be tried by this jury. If the judge were to declare a mistrial over the objections of defense counsel, the defendants would have a good argument that the DJC prohibits a retrial.

      The critical difference would be that they did not seek to abort the trial, which is what happens when a defendant is convicted and appeals the result.

  3. dianetrotter says:

    Hey Guys, Let’s not forget to contribute to Professor and Crane. Beginning of the year is particularly difficult.

  4. colin black says:

    You cant un ring a bell an its pointless to close the stable door after the horse has bolted.
    I think when a Judge orders a jury to diss regard this or that uttered by some one on the stand.

    Or reprimands an attorney for slipping in a hearsay comment an orders the jury to pay no heed.

    It has the opposite effect given human nature.
    The comments may have floated right over there heads .Or the opinions of certain experts not registered clearly or even entered there memory banks.

    But as soon as a Judge draws attention to it by ordering them not to consider it or to put it out there minds.

    It emblazoned in there brains in big neon letters .
    An they cant not help but think about it.

    • Malisha says:

      Yeah, and don’t think about an elephant.

      I think in retrospect, probably the most outrageous part of the Fogen trial, was the judge agreeing not to call Fogen the defendant. She just made it “Mr. Zimmerman” and “Mr. Martin” as if two guys just happened to get into a scuffle. May she rot in Hell. Soon.

  5. bettykath says:

    Unringing the bell didn’t work when the judge told the jury to disregard Serino’s statement that he initially believed fogen. That was key consideration by the bigoted juror who believed “George”. Let’s hope it works this time.

    • fauxmccoy says:

      as a californian, i can tell you that there are a great number of us who are fed up with police brutality. it may not be too difficult for the jury to abide this order.

      • Two sides to a story says:

        I agree. I think Cali is fed up with police abuses and more people are scared of them than respect them. I hope the good citizens of Fullerton are ready to hit the streets if this jury doesn’t do the right thing.

    • roderick2012 says:

      Of course the State waited until the next day to object and request that Serino’s reply be stricken from the record.

      By then the jurors had slept on and probably even discussed it given the lenient sequestration that they experienced.

      • Good point, Roderick, especially if there are any jurors who are predisposed to vote not guilty, regardless of the evidence, as was the situation in the Zimmerman trial.

        Trial lawyers must pay attention to the questions asked by opposing counsel and object on the proper grounds before the witness answers the question. Gotta think fast to be a good trial lawyer.

        Otherwise, too bad, so sad. Target gone by, and now you have an unringing the bell problem.

        • bettykath says:

          The prosecutors had many lost opportunities for objections given the number of what-ifs that were asked of non-experts as if they were qualified.

    • kllypyn says:

      Serino didn’t believe him and he should have said so.the prosecution should have called him out on his lie and charged him with perjury That police officer should have been called out on his lie because he knows they used excessive force. I’m tired of police officers who lie to protect their own or themselves Including perjuring themselves.It also annoys me that people will automatically believe the police when is is common knowledge that like everyone else they will lie when they are in trouble. Another problem is other officers who are not in trouble who will also lie or look the other way. then they whine and cry when some don’t respect or like the police.

      • bettykath says:

        Serino didn’t lie. He was required to answer the questions that were asked. He initially thought fogen was telling the truth but came to believe that he was a pathological liar. He said it but MOM re-asked the question in such a way that only his initial belief was allowed. And the prosecutors, who should have objected to MOM asking for any opinion, sat with their thumbs up their behinds, as they did throughout the trial while MOM put out a bunch of what-ifs that the witnesses weren’t qualified to answer.

  6. Malisha says:

    I suppose it’s too much to hope for to have the police “expert” investigated for his role in giving knowingly false testimony. Experts do it all the time, of course.

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