Time to end death penalty prosecutions of the mentally ill

August 9, 2015

In light of the life-without-parole sentences imposed on Theodore Kaczynski (the Unabomber), Jared Loughner (who shot and killed Congresswoman Gabriele Giffords and a federal judge) and James Eagan Holmes (who shot and killed 12 people at a movie theater in Aurora, Colorado), that “mark the progress of a maturing society,” I believe our society’s “evolving standards of decency” have reached a point where Congress and our state legislatures should pass legislation that prohibits executing the mentally ill for murders they committed. At long last, have we not reached the point where reasonable and thoughtful people can conclude that executing the mentally ill violates the Eighth Amendment prohibition against cruel and unusual punishment?

In Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Chief Justice Earl Warren wrote,

This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

(Emphasis added)

Each of these men committed atrocious and heinous multiple murders. Each of them was schizophrenic and delusional when they committed the murders. When a person kills another human being while gripped by delusions caused by a severe mental illness such as schizophrenia, it makes no sense to hold that person accountable for what he did by executing him. Indeed, such an execution serves only a desire for vengeance, which is not a legitimate societal interest. Moreover, since they have lost the capacity to reason through no fault of their own, it certainly does not deter other mentally ill people from killing.

I previously warned that the James Holmes death penalty trial is a colossal waste of time and money. Let us join together and vow to never again make this mistake.


Jury sentences James Holmes to life without parole

August 8, 2015

CTV reports,

Twelve jurors failed to agree on a death sentence for Colorado theatre shooter James Holmes, prompting shocked sobs from victims, police officers and his own mother. Holmes will instead spend the rest of his life in prison for fatally shooting 12 people.

The nine women and three men said they could not reach a unanimous verdict on each murder count. That automatically eliminates the death penalty for Holmes, who blamed the killings on mental illness.

/snip/

One juror told reporters outside court that there was a single juror who refused to give Holmes the death penalty and two others who were wavering. The key issue was Holmes’ mental illness.

“All the jurors feel so much empathy for the victims. It’s a tragedy,” the juror said, refusing to give her name. “It’s a devastating result no matter what. I am deeply, deeply sorry — that isn’t even the word.”

The verdict was a surprise because a week ago (before the victim impact testimony) the jury decided that the mitigation evidence did not outweigh the aggravation evidence. I was surprised since that is the legal test for deciding whether to impose the death penalty or life without parole. I suspect the change might be the due to the difference in believing you can kill someone versus actually doing it. Someone on that jury could not pull the proverbial trigger.

A month ago, I predicted this result when I wrote, James Holmes death penalty trial is a colossal waste of time and money.

The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity.

/snip/

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.

 


James Holmes death penalty trial is a colossal waste of time and money

July 11, 2015

James Eagan Holmes was arrested on July 20, 2012 shortly after killing 12 and wounding 70 people at the midnight premier of a new Batman film in the Century 16 movie theater in Aurora, CO. He was eventually charged with 152 crimes, including 12 counts of premeditated murder, 12 counts of depraved heart murder (charged in the alternative) and 70 counts of attempted murder. The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity. The trial began with jury selection on January 20, 2015. Both sides rested yesterday. Closing arguments for the guilt phase are scheduled to start on Tuesday.

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.


Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?

Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.

Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.

There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.

Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.

I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.

I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.

Judy Clarke plans to use the trial to save his life.


Dzhokhar Tsarnaev Death Penalty Trial Started Today

January 5, 2015

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

January 2, 2015

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.


Greene County prosecutor may seek death penalty for Craig Wood

February 21, 2014

Friday, February 21, 2014

Good afternoon:

According to KMOV.com, Greene County Prosecuting Attorney, Dan Peterson, has announced that he intends to seek the death penalty against Craig Michael Wood for the kidnap and murder of 10-year-old Hailey Owens.

If true, such an announcement is premature and improper.

For the following reasons, a prosecutor’s decision to seek the death penalty should be delayed until defense counsel has had a reasonable opportunity to prepare and submit a report regarding the evidence that it would present to a jury in support of a request for an LWOP sentence instead of the death penalty.

First, the United States Supreme Court (SCOTUS) has ruled that the death penalty can only be imposed in some, but not all murder cases, and there is no murder, no matter how aggravated, gruesome or depraved, that automatically warrants the death penalty.

Instead, the jury or the judge in a case where the defendant waives his right to a jury trial, must decide whether to impose the death penalty by weighing evidence in aggravation (i.e, the manner in which the crime was committed and the defendant’s criminal record) against evidence in mitigation (e.g., youthful age, immaturity, developmental disability, mental illness, diminished capacity, minimal role in a multiple defendant case and absence of a criminal record are some, but not all of the factors that might call for a sentence of LWOP rather than the death penalty).

Second, since there is no murder for which the death penalty is automatic, a prosecutor’s decision to seek it should be based on a thoughtful consideration of both the aggravating and mitigating evidence in the case.

Third, since the prosecution must necessarily rely on defense counsel to discover and disclose the mitigating evidence before it decides to seek or not to seek the death penalty, it must give defense counsel an adequate period of time to prepare a mitigation report.

Pursuant to current practice in most jurisdictions, the prosecution initiates the process of deciding whether to seek the death penalty by obtaining an indictment for a death-penalty eligible murder. The prosecutor then has a specific period of time (typically at least 30 days) following the defendant’s arraignment on the charge or charges in the indictment within which to decide whether to file a notice that it intends to seek the death penalty, if the defendant is convicted of the death penalty eligible murder.

This deadline is often extended by agreement of the parties for a period of months (1) to allow the defense a reasonable opportunity to prepare a mitigation report and (2) to allow the prosecution a reasonable opportunity to review it.

A meeting usually takes place a day or so before the deadline during which lawyers for both sides discuss the relative merits and demerits of their respective positions. These meetings are surreal because they are discussions that presuppose the defendant will be convicted and focus on whether he should live or die.

Sometimes the prosecution decides not to seek the death penalty, in which case it does not file the notice.

Sometimes it does.

If followed in good faith, this process assures that the decision to seek the death penalty will not be based on a defendant’s refusal to plead guilty.

Indeed, ethical prosecutors should be opposed to using the death-penalty as a bargaining chip in plea negotiations.

Plead-guilty-as-charged-and-agree-to-a-sentence-to-life-without-possibility-of-parole (LWOP)-or-I-will-seek-the-death-penalty is extortion of the worst sort because it forces a defendant to gamble with his life, if he wants to exercise his right to a jury trial. We have seen far too many wrongful convictions of innocent people to allow a prosecutor to extort guilty pleas in premeditated murder cases.

There is one important exception to this process and that occurs when a defendant seeking to avoid the death penalty offers to plead guilty in exchange for an LWOP sentence. In this situation, the defendant’s desired outcome is an LWOP sentence and he is not being forced to accept it.

For example, in the Green River Killer case in Seattle, Gary Ridgway offered to plead guilty to 48 premeditated rape murders in exchange for providing information about the location of missing bodies. The prosecution accepted his offer, so he is serving LWOP.

Craig Michael Wood is charged with kidnapping and murdering 10-year-old Hailey Owens. This is potentially a death-penalty-eligible offense under Missouri law because it is a premeditated murder committed while engaged in a kidnapping offense and the victim was a witness or potential witness against him.

The offense probably also qualifies as a murder “outrageously or wantonly vile, horrible or inhuman.”

Whether Dan Peterson has already made up his mind or will follow the process I have described in good faith or eventually use the death penalty as a bargaining chip in plea negotiations remains to be seen.

Ironically, such an offer might be quickly snapped up by the defense, if the evidence of guilt is as overwhelming as it now appears to be.


Police officer shoots and kills schizophrenic 18-year-old

January 10, 2014

Friday, January 10, 2014

Good afternoon:

We have yet another tragic incident to consider in which a police officer shoots and kills a mentally ill person.

CNN reports:

A man calls 911 saying his family needs help. His wife is scared of their schizophrenic son, armed with a screwdriver. One, then two, then three law enforcement officers — all from different agencies — arrive. After the situation calms somewhat, according to the family, a tussle ensues.

What happens next?

In a case this week out of Boiling Spring Lakes, North Carolina, one officer responded by firing his gun, killing 18-year-old Keith Vidal, who was mentally ill.

The teen’s furious family soon take their case public, saying there’s no justification for Sunday’s shooting. Vidal, they say, weighed all of 100 pounds; he was mentally ill, yes, but he was a “good kid.”

The shooter is Byron Vassey, a detective with the Southport (NC), Police Department, which has placed him on administrative leave pending an investigation of the shooting.

The legal test to apply is whether the officer reasonably believed that Keith Vidal was an immediate danger to himself or to others. Writing for the majority of the SCOTUS in Graham v. Connor, 490 U.S. 386, 396-397 (1989), Chief Justice Rehnquist explained the test as follows:

Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of ” `the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ ” against the countervailing governmental interests at stake. Id., at 8, quoting United States v. Place, 462 U. S. 696, 703 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U. S., at 22-27. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U. S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U. S., at 8-9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure”).

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U. S. 797 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U. S. 79 (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F. 2d, at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U. S. 128, 137-139 (1978); see also Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular search or seizure, “it is imperative that the facts be judged against an objective standard”). An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, at 138, citing United States v. Robinson, 414 U. S. 218 (1973).

In the Boiling Spring Lakes case, there were three different officers at the scene. The first two didn’t open fire, but Vassey did. His lawyer, W. James Payne told CNN that Keith Vidal attempted to stab one of the officers multiple times with a screwdriver, but the officer was wearing a bulletproof vest, did not request assistance and was not injured.

Keith Vidal’s stepfather, Mark Wilsey, who witnessed the shooting with Vidal’s mother, told CNN that the detective disrupted the situation,

“(He) walks in the room, walks around the corner, (and) says, ‘We don’t have time for this. Tase that kid now. Let’s get him out of here.'”

The North Carolina Bureau of Investigation is investigating this shooting.

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Police officers go on trial for killing Kelly Thomas two years ago

December 2, 2013

Monday, December 3, 2013

Good evening:

The trial of two City of Fullerton police officers charged with killing Kelly Thomas, 37, more than two years ago finally got underway today with opening statements. Fullerton is located in conservative Orange County, CA, approximately 25 miles southeast of Los Angeles, and this is the first time in the history of the county that a police officer will stand trial for murder.

Officer Manuel Ramos, 39, is charged with second degree murder and involuntary manslaughter. Officer Jay Cicinelli, 42, is charged with involuntary manslaughter and use of excessive force. A third officer, who is also charged with involuntary manslaughter and use of excessive force, will be tried after this trial concludes because his case was severed from the other two defendants.

Some of you may remember this case, especially if you live in California, because of substantial and continuing community outrage about Thomas’s death and the failure of the police department and the district attorney’s office to arrest and prosecute any of the police officers involved. Months of protests finally led to the resignation of the police chief and a recall election.

Let’s take a look at this tragic case because there is much we can learn from it.

Kelly Thomas was mentally disabled by schizophrenia, homeless and unemployable. CBS News reported today,

Thomas, who some called “Crazy Kelly,” was known around town for his disheveled red beard and erratic behavior and was already familiar to police. Ramos himself had been called on seven previous occasions to remove him from private property and Thomas had been written up for trespassing, urinating in a fountain and vandalism, among other things.

The altercation that led to his death started in much the same way, with Ramos rolling up to a police call about a man who was trying to open car doors at Fullerton’s busy transit center. This time, however, things escalated – and much of it was captured on the surveillance tape that promises to be the trial’s centerpiece.

The body microphones that the officers attach to their uniforms were also working.

The district attorney has provided a preview of the State’s case.

District Attorney Tony Rackauckas hassaid investigators overlaid recordings from the officers’ body microphones with the tape, allowing prosecutors to provide a blow-by-blow narrative of an “impending beating by an angry police officer” and verbatim quotes from the officers and Thomas as the scene unfolded.

Initially, Ramos chides Thomas for his evasive answers: “It seems like every day, we have to talk to you about somethin’ … Do you enjoy it?” Ramos asks Thomas, according to a prosecution transcript.

Within minutes, Ramos grows angry as Thomas refuses to cooperate. He snaps on latex gloves, holds his fists in front of Thomas’ face and says, “Now see my fists? They are getting ready to (expletive) you up.”

Thomas stood up and pulled away, prosecutors said, and Ramos chased him down, tackled him and punched him in the ribs as he pinned him down.

Cicinelli, who arrived moments later, is accused of kneeing Thomas twice in the head and using a Taser on him four times before hitting him in the face with the blunt end of the stun gun eight times. The coroner listed the cause of death as mechanical compression of the thorax, which made it impossible for Thomas to breathe normally and deprived his brain of oxygen.

Kelly Thomas called out to his father for help 30 times during the 10-minute beating.

The defense will be asserting the crazy-meth defense, despite an absence of physical resistance to police authority and no meth metabolites, or any other drugs in Kelly’s blood. They will argue that he was not schizophrenic. Instead, they will claim that his psychotic delusions were caused by a long-term addiction to meth. They are going to engage in as much character assassination as the trial court will permit in an effort to portray Kelly Thomas as an unpredictable, dangerous and violent person.

CBS reports,

Defense attorneys, however, portray a very different encounter and are seeking to introduce evidence that Thomas had a history of violence and suffered from psychotic episodes due to prolonged methamphetamine abuse.

The surveillance video doesn’t begin until 25 seconds into the confrontation and doesn’t show, for example, how Thomas reached repeatedly for Cicinelli’s weapon as they struggled, according to defense motions.

In the audio recordings, Cicinelli can be heard telling others that Thomas must be “on something” because it took three officers to get him in handcuffs. Ramos adds that Thomas tried to bite him through his pants.

The judge will allow defense attorneys to tell the jury about Thomas’ prior conviction for assaulting his grandfather with a fireplace poker and about a restraining order that his mother sought against him after he held her by the throat during an argument.

The defense team also plans to present its own expert who will testify that Thomas had an enlarged heart due to chronic methamphetamine abuse, providing an alternate cause of death.

We have discussed schizophrenia and the plight of the mentally ill in this country beginning with Jarrod Loughner and continuing with James Holmes, Aaron Alexis and the woman who was chased and shot to death by police in Washington, D.C. after she collided with a barrier blocking access to a driveway leading to the White House and sped away in the direction of the Capitol ignoring orders to pull over and stop. Little treatment or services are available for the mentally ill in our country. Federal and state governments basically expect them to stay out of sight and fend for themselves. When police encounter them sleeping on park benches or in alleys behind dumpsters or clusters of garbage cans, they roust and order them to move on. If police arrest them for committing crimes, they take them to jail where they will remain until their cases are processed and they finish serving their sentences. The Los Angeles County Jail houses and treats more of the mentally ill than any mental hospital in the nation. Disgraceful is the best word that I can think of to describe how our nation treats the mentally ill.

Not surprisingly, Kelly Thomas had prior contacts with the police.

Finally, the most likely reason that the trial court severed the third defendant from this trial is that the prosecution will be introducing statements by one or both of the two officers that inculpate the third officer. Assuming they decide not to testify, the third defendant would not be able to cross examine them about those statements. That would violate Sixth Amendment right to confront his accusers.

By severing him out of this case and trying him after it’s over, he would be able to call them during the defense case and cross examine them as hostile witnesses, if necessary, since a guilty or not guilty verdict would have ended their legal jeopardy terminating their Fifth Amendment right to remain silent.

I sincerely hope that this case, together with the others I have mentioned, will focus national attention and discussion about the plight of the mentally ill.

We need to create and fund a comprehensive national mental health treatment plan.

The trial is expected to last six weeks.

This is our 780th post.


Aaron Alexis may have been suffering from schizophrenia

September 17, 2013

Tuesday, September 17, 2013

Good evening:

I regret to report that I have been experiencing computer freeze-ups intermittently throughout the day and into the evening that have wreaked havoc with my effort to post a new article today. The problem may have been caused by an otherworldly large Windows 8 update. Computer is functioning well now, so let’s get started.

Aaron Ellis may have been suffering from schizophrenia and experiencing paranoid delusions on Monday.

Boston.com is reporting:

The man who gunned down 12 people at the Washington Navy Yard called police in a Rhode Island city last month to complain that voices were harassing him through a wall at his hotel and that he worried they might harm him. Police said Tuesday they alerted the Navy that day that Aaron Alexis was hearing voices.

According to a police report, two Newport police officers were called to a Marriott in town around 6 a.m. Aug. 7. Alexis told them he was in town as a naval contractor. Newport is the site of Naval Station Newport, the Naval War College and several military contractors.

Alexis, 34, a defense contractor employee, fired inside a building at the Washington naval installation Monday and killed 12, the FBI said. He was killed in a gunbattle with police.

In Rhode Island, Alexis told the officers he had gotten in an argument while boarding a flight in Virginia, and he believed the person he argued with sent three people to follow him. He said he never saw the people but believed they were using a microwave machine to send vibrations into his body so he could not fall asleep. He said he checked into two hotels previously, one on the Navy base, and could not get away from them.

He would not tell officers what the voices were saying. But he also told them he did not have a history of mental illness in his family and had never had any similar episodes, the report said.

‘‘He was concerned for his own safety,’’ Newport Police Lt. William Fitzgerald said Tuesday.

Later that day, Newport police alerted police at the naval station and sent them a copy of the police report because Alexis said he was a contractor, Fitzgerald said.

‘‘What he was claiming didn’t sound right,’’ he said.

A spokeswoman for the station referred calls to the FBI.

Fitzgerald said Alexis did not call police again, and it was the only contact his department had with him.

In other news today,

1. The Washington Times is reporting that the State of Florida is investigating the propriety of State Attorney Angela Corey’s decision to terminate Ben Kruibdos, the IT specialist in her office who publicly accused Bernie de la Rionda of withholding evidence favorable to the defense. This announcement is not news. It’s a natural and probable consequence of Kruibdos’s wrongful termination lawsuit. The decision to investigate is not an endorsement of the lawsuit. It’s the next logical step in the process.

2. Dr. Shiping Bao’s claim that the prosecution threw the case against Zimmerman still has plenty of legs. Here’s a link to the Grio’s report today summarizing that argument. The report contains some additional information that I had not previously heard.

3. The DC police now claim that only one shooter was involved in the Navy Yard shootings. Police have identified him as Aaron Alexis (34). He was honorably discharged from the US Navy 2 years ago.

4. Mr. Alexis worked as a government contractor for a company called The Experts, a subcontractor on an HP Enterprise Services contract to refresh equipment used on the Navy Marine Corps Intranet network.

5. He arrived in DC a couple days before the shootings and was staying at a Residence Inn with five other government contractors working at the Navy Yard.

6. The FBI said he had legitimate access to the Navy Yard “as a result of his work as a contractor.” Therefore, he had the requisite ID to be admitted to the building.

7. He drove a rental vehicle on Monday morning and parked it within a few blocks of the Navy Yard.

8. There is an atrium inside the building with a seating area on the ground floor adjoining a cafeteria. Mr. Alexis went up to the 4th Floor and fired down on people in the seating area.


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