Jury to resume deliberations Monday in Kelly-Thomas-beating case

January 12, 2014

Sunday, January 12, 2014

Good afternoon:

The Kelly Thomas case was submitted to the jury late Thursday morning after five weeks of trial and 3 1/2 days of final arguments. The jury deliberated Thursday afternoon without reaching a verdict.

The jury was excused until Monday morning when it will resume deliberations.

This is Part 1 of prosecutor Tony Rackauckas’s rebuttal argument (51:46):

Here’s Part 2 (9:17)

Here’s the 33 minute video of the beating:

Meanwhile, check out the Hand of God.


This is our 848th post in 26 months.

We received only two donations yesterday for which we are very grateful, but we had 666 visitors to the site and 1,358 page views. As I said yesterday, I realize it’s easy to assume others will step in and contribute, but that type of thinking doesn’t work when everyone does it.

We’ve averaged less than 1 donation per day during the past week despite hundreds of visitors per day and thousands of page views. We’re not trying to get rich here, but this just isn’t working out for us.


Closing arguments resume today in Kelly Thomas case

January 8, 2014

Wednesday, January 8, 2014

Good morning:

Closing arguments will resume today in the Kelly Thomas case with the case expected to go the jury by the end of the day.

Defense attorney John Barnett, who represents Manuel Ramos, will complete his final argument this morning. He spoke for about 90 minutes yesterday afternoon but did not complete his final argument before Judge William Froeberg recessed the trial for the day. After he finishes his argument today, defense attorney Michael Schwartz will give his closing argument on behalf of his client, Jay Cicinelli.

Orange County District Attorney Anthony Rackauckas completed his opening closing argument yesterday afternoon and will have an opportunity to rebut the arguments of defense counsel after Schwartz concludes his argument.

You can watch closing arguments via livestream right here, beginning at approximately 9 am PST.

You can review the arguments of counsel yesterday by going here.

Briefly, police responded to a 911 call reporting a suspicious person attempting to break into vehicles parked at the Fullerton Transportation Center. Defendant Manuel Ramos was the first officer to arrive. He encountered Kelly Thomas, a mentally ill homeless person he knew from previous encounters. After a brief conversation, Ramos put on plastic gloves and told him he was going to fuck him up. Thomas stood up and attempted to get away, but Ramos and another officer got him down on the ground and began beating him. Other officers arrived and the beating continued until Thomas lost consciousness. Ramos hit him with his baton and Cicinelli hit him multiple times in the face with his taser.

The incident was captured on videotape by a security camera and audio from body microphones worn by police officers. The prosecution spliced the audio and video together to create an exhibit that has served as the centerpiece of the trial.

The prosecution has presented expert testimony that Thomas died as a result of the beating. The defense has presented expert testimony that he died as the result of an enlarged heart weakened by methamphetamine use.

You can read my article yesterday summarizing the case here.

Adolfo Flores and Paloma Esquivel of the LA Times describe the end of Anthony Rackauckas argument yesterday:

The final words of a 37-year-old homeless man filled the packed Orange County courtroom.

“Dad help me.”

“God help me.”

“Help me. Help me. Help me.”

Orange County Dist. Atty. Tony Rackauckas let Kelly Thomas’ voice provide an emotional undertone to his closing arguments Tuesday in a widely watched criminal case against a pair of Fullerton police officers accused of killing the homeless man in a furious beating on a summer night in 2011.

“I don’t know about you,” Rackauckas told jurors, “but I can’t recall ever hearing such pleas. Such crying. Such begging for his life. Ever.”

Manuel Ramos is charged with second degree murder and involuntary manslaughter. Jay Cicinelli is charged with involuntary manslaughter and use of excessive force.


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Closing arguments expected today in Kelly Thomas case

January 7, 2014

Tuesday, January 7, 2014

Good morning:

Closing arguments are expected today in the Kelly Thomas case.

You can watch closing arguments via livestream right here.

The prosecution rested it’s rebuttal case yesterday after presenting the testimony of Dr. Matthew Budoff, the program director for cardiology at Harbor-UCLA Medical Center. According to Alfonso Flores of the LA Times, Dr. Budoff testified that,

CAT scans and X-rays of Thomas’ heart show no evidence of heart failure.

“He could’ve had some early stages of damage to his heart, but his heart was not weakened,” Budoff testified.

Thomas “would not have died of heart failure because his heart was still normal at this point,” he said.

In surrebuttal the defense recalled Dr. Steven Karch, a forensic pathologist who studies how drugs can affect the heart and cause death.

Here’s Flores’s description of his testimony,

Karch, who was called back to the stand Monday morning, previously testified that people who had a habit of using meth and then stopped taking it could still be affected years later.

On Monday he stuck to his previous testimony that Thomas’ meth abuse caused his heart to thicken and scar.

Thomas died of cardiac arrest because the damage to his heart didn’t allow it to function properly, Karch said.

“Is there anything in Dr. Budoff’s testimony that changes your opinion as to the cause of Kelly Thomas’ death?” asked John Barnett, Ramos’ attorney.
“No,” Karch said.

In his previous testimony, Karch wouldn’t say whether Thomas’ fight with police on July 5, 2011, caused his heart to fail but said it could be a possibility.

Karch and Budoff said they were being paid $750 an hour for their testimony. Karch was also paid $750 an hour to review files in the case and Budoff was paid $400.

As I said yesterday,

Previous testimony has established that he did not have any drugs in his system and that he was apologizing to officers and complaining that he could not breathe as they continued to sit on him and beat him with a baton and a taser.

The beating was recorded by a security camera.

Thomas went into a coma and died five days later in a hospital without regaining consciousness.

Manuel Ramos is charged with second degree murder and Jay Cicinelli is charged with involuntary manslaughter. The former police officers were fired by the Fullerton Police Department after the incident.

I believe the defense has an uphill battle with this case because the videotape left no doubt in my mind that the officers beat him to death.

Although this case may seem like a battle of expert witnesses, California does recognize the eggshell skull principle that an actor takes his victim as he finds him and he cannot escape legal responsibility for his actions because he did not know that his victim was peculiarly susceptible to injury. In other words, even if the jury were to believe Dr. Kerch’s testimony that Kelly Thomas died from a weakened heart, that would not necessarily result in an acquittal. Depends on the specific wording in the jury instructions.

Presumably, the prosecution requested such an instruction.


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Hearing today in Kelly Thomas case: UPDATED BELOW

December 27, 2013

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.

Defense in Kelly Thomas case resorts to character assassination

December 12, 2013

Thursday, December 12, 2014

Good evening:

The prosecution rested its case yesterday in the Kelly Thomas case.

Defense resorts to character assassination.

Adolfo Flores of the Los Angeles Times reports,

Among the witnesses defense attorneys called to the stand Thursday were some of Thomas’ own relatives, including his grandfather, Walter Dieball, who testified that in 1995, his grandson hit him over the head with a fireplace poker while he was watching television.

“I heard the fireplace tools rattling and I looked around and he had the poker in his hand and he hit me with it,” Dieball said.

Ramos’ attorney, John Barnett, asked Dieball if the poker was heavy, tapping his podium twice with a fireplace poker.
Dieball said it was.

An image of the fireplace poker taken after Kelly Thomas struck Dieball was projected onto a screen. It was bent.

Dieball said Thomas hit him another time on the head when he was on his knees attempting to get up and another time on the back as he fled into a room.

He told prosecutors he went into the room because it had a lock, a phone to call 911 and a gun for protection. Dieball, who was pushed to the stand in a wheelchair, wore a yellow ribbon worn by supporters of Thomas.

The defense also called his mother to the stand. She testified that he attempted to choke her in December 2010. She also was wearing a pin exhibiting a photo of his face and a yellow ribbon.

They also called a man who testified that Kelly punched him on the chin when he told him to leave a party for being disruptive.

A woman, who worked at a produce stand in 2010, testified that Kelly Thomas threw rocks at her after she told him to leave the area and chased him away with pepper spray and a machete.

Whether these violent acts will influence the jury remains to be seen.

Regardless of what he did or threatened to do to someone else at some other time in the past, the simple fact remains that the video shows that the police beat an unarmed young man to death and never even attempted to handcuff him.

The trial will resume on Monday.


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Live coverage of Kelly Thomas trial likely to resume today

December 9, 2013

Monday, December 9, 2013

Good morning:

The Voice of Orange County is reporting,

Orange County District Attorney Tony Rackauckas has reversed his demand for access to TV and radio feeds of portions of the Kelly Thomas trial and will ask the judge to restore pool camera and audio coverage, KFI radio news director Chris Little said Friday.

As I explained in an earlier post, he had no legal basis to support his claim that he could share in the live feed.

I think we can expect that the judge will allow cameras back into the courtroom.


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Open Thread

December 7, 2013

Saturday, December 7, 2013

Good afternoon:

A winter weather advisory has been issued for our area from midnight tonight to 5 pm tomorrow. Looks like another ice storm will hit us before yesterday’s ice storm melts away.

Crane and I are going to walk to the store to get some groceries. Along the way, I’m going to try some things to start the motorcycle. With the temperature in the low 20s, I don’t know if the road will be ice free. Even if I can get it to start, I’m not going to risk life and limb by driving it on an icy road.

Since we are going to be away for several hours, I’m going to open this new thread for comments.

Court was not in session yesterday in the Kelly Thomas case. The trial will resume Monday.

Here’s a link to an NBC report. I think Kelly’s dad, Ron Thomas, nailed the cops with this statement:

“In his statement Cicinelli says he had no other option but to beat Kelly ‘s face to hell. What about handcuffs? He never tried those,” Ron Thomas said.

The world lost a great leader and human being a few days ago. Nelson Mandela passed to the spirit world. He made the world a better place. By word and deed he showed us that a man of peace can triumph over racism and hate. Think of him when the going gets tough. Draw courage and inspiration from his indefatigable spirit. RIP Nelson Mandela. Peace and condolences to your family.

What’s on your mind today?


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Defense claims Kelly Thomas death caused by weak heart

December 6, 2013

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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Updates on Chism, Arias and Thomas cases

December 4, 2013

Wednesday, December 4, 2013

Good evening:

Philip Chism was arraigned today in Superior Court and pled not guilty.

I also have updates on Arias and Thomas.

Judge Sherry Stephens issued an order today in the Jodi Arias case denying a defense motion to compel jurors in her penalty phase retrial to reveal their social media and Twitter account information. The defense wanted to monitor the accounts to make sure jurors do not use them to obtain or disseminate information about the case.

Two weeks ago she issued an order banning live television coverage of the penalty phase.

Adolpho Flores reported today for the LA Times that the prosecution played an audio recording yesterday in which defendant Jay Cicinelli could be heard proclaiming that he hit Kelly Thomas 20 times in the face with his stun gun. Cicinelli’s statement was picked up by a body microphone worn by Officer John Ema. Cicinelli is charged with involuntary manslaughter and using excessive force.

Flores reports that Cicinelli’s lawyer, Michael Schwartz, told reporters after court that his client did not really mean what he said.

“That’s not what happened,” Schwartz said outside the Santa Ana courtroom. “What he’s saying is driven by his heightened state of anxiety, stress and disbelief.”

In his opening statements Monday, Schwartz said his client encountered a combative, uncontrollable suspect who grabbed his Taser.

At times what appears to be Cicinelli striking Thomas in the face is him actually hitting the homeless man’s hand to push it away from the stun gun, Schwartz said.

“An officer is trained in the state of California to never relinquish the weapon to a suspect,” Schwartz said.

Yeah, sure. You betcha.

Flores also summarized the videotape of the encounter between police and Thomas.

Jurors on Tuesday were also shown security footage of the encounter between Thomas and police outside a Fullerton bus depot. The 33-minute video is a compilation of cameras from the bus depot and audio from recording devices worn by police officers.

The grainy black and white video is a key piece of evidence in the prosecution’s case and captured the Fullerton police officers hitting Thomas with batons and a Taser, in addition to shocking him with the device. Several people, including Thomas’ mother, cried as the tape played.

Thomas was in a coma after the incident and died five days later.

The footage begins with Ramos approaching Thomas after receiving a 911 call of someone attempting to break into cars.

To read the remainder of his vivid and sickening description, please go here.

Judge ordered cameras removed from the courtroom yesterday in Kelly Thomas case

December 3, 2013

Tuesday, December 3, 2013

Good afternoon:

An unusual and unexpected disagreement between the prosecution and the media erupted yesterday during opening statements in the Kelly Thomas case. The prosecution objected to not receiving the media’s live feed coverage of opening statements by District Attorney Tony Rackauckas and John Barnett, one of the defense attorneys. When representatives of media organizations covering the trial refused to hook them up, Judge William Froeberg ordered them to remove their video and audio recording equipment from the courtroom.

The dispute was unusual and unexpected because gavel to gavel media coverage of trials in state courts is not new and courts have developed a uniform rule that requires media organizations to pool their resources (AKA: the Pooling Agreement) to minimize distractions, accidents and confusion caused by people stumbling over electrical cords and breaking expensive equipment. Pursuant to the agreement, participating media organizations agree to limit coverage to one organization per day assigned on a rotating basis with all participating organizations sharing the live feed generated from the courtroom by the organization with the duty.

The participating media organizations yesterday refused to share the live feed with the Orange County District Attorneys Office because it is not a media organization participating in the pooling agreement.

Hopefully, cooler heads have prevailed today and the cameras are back in place.

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