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.

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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.

Fred


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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Writing articles and maintaining this blog involves a lot of time and effort. This is our 840th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

Thank you,

Fred


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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Writing articles and maintaining this blog involves a lot of time and effort. This is our 838th post in a little over two years. Please consider making a donation today, if you value what we do and would like us to continue producing articles for your information and enjoyment.

Thank you,

Fred


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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Fred


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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We depend on reader support. This is our 787th post in two years. Writing articles and maintaining this site requires many hours of work every day. If you value the unique mix of news and commentary you find here, please make a donation. Click the yellow donation button in the upper right hand corner of this page. You can choose to make a single donation via Paypal or a recurring monthly payment.

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Fred and Rachel


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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We depend on reader support. This is our 784th post in two years. Writing articles and maintaining this site requires many hours of work every day. If you value the unique mix of news and commentary you find here, please make a donation. Click the yellow donation button in the upper right hand corner of this page. You can choose to make a single donation via Paypal or a recurring monthly payment.

We thank you for your support.

Fred and Rachel


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