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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