Kelly Thomas case goes to the jury today

January 9, 2014

Thursday, January 9, 2013

Good afternoon:

The Kelly Thomas case will be going to the jury later today after Orange County District Attorney Tony Rackauckas, concludes his rebuttal argument.

The centerpiece of this case is a 33-minute videotape of the encounter between between police and Kelly Thomas. The video was recorded without sound by a security camera at the Fullerton Transportation Center where the encounter occurred. Audio recorded from body microphones worn by the police officers was added to the video to produce the exhibit used in court. The encounter was precipitated by a 911 call reporting a suspicious person attempting to break into parked vehicles.

There is no evidence that Thomas was the suspicious person.

Thomas lost consciousness, was hospitalized, and died five days later without regaining consciousness.

The two defendants are Manuel Ramos and Jay Cicinelli. Both were fired by the Fullerton Police Department after the incident.

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

Adolfo Flores of the LA Times sets the scene:

Rackauckas said Ramos was a bully who wanted to hurt Thomas, and Cicinelli crossed the line when he used his stun gun to hit the mentally ill homeless man in the face.

Orange County’s top prosecutor focused on what he said was a turning point in Thomas’ encounter with the police: Ramos slipping on a pair of latex gloves as he tells Thomas, “See these fists?…. They’re getting ready to —- you up.”

Rackauckas said Ramos’ threatening words and provocative actions turned a routine police encounter into a crime scene. The prosecutor said that once the officer threatened Thomas, the homeless man had a right to defend himself.

In the video, Thomas can be seen standing up and backing away from Ramos. Within seconds, Ramos and another officer begin swinging their batons at him.

Cicinelli can be seen arriving at the scene as the two officers struggled with Thomas on the ground. The video shows Cicinelli using his Taser multiple times to stun Thomas and then finally smacking the homeless man in the face with it.

“I just probably smashed his face to hell,” Cicinelli is heard saying after the struggle.

A photograph of Thomas’s face confirms what he said.

The prosecution’s theory of the case, which is supported by the medical examiner who performed the autopsy, is that Thomas died as a result of the beating and an inability to breathe caused by officers sitting on him and placing him in restraints.

The defense theory of the case is that the officers acted reasonably in response to Thomas’s resistance to their authority and his use of force. Defense counsel presented the testimony of several witnesses, including some members of his family, who testified that he had assaulted them in the past.

The defense presented the testimony of Steven Karch, a forensic pathologist, who testified that he died of heart failure due to an enlarged heart caused by the prolonged use of methamphetamine.

However, no trace of any drugs was found in his blood and the prosecution rebutted the defense expert with the testimony of Dr. Matthew Budoff, the program director for cardiology at Harbor-UCLA Medical Center. He testified that CAT scans and X-rays of Thomas’s heart showed that it was normal with no evidence of heart failure.

Neither defendant testified.

Murder requires proof of malice aforethought whereas proof of manslaughter does not.

Malice can be actual or implied and the prosecution has accused Manuel Ramos of acting with implied malice, or extreme recklessness. To prove that Ramos acted with implied malice, the prosecutor must show that Ramos committed (1) an unlawful act resulting in dangerous consequences, and (2) he knew about the danger of the acts, yet consciously and deliberately disregarded the danger to human life.

In People v. Watson, 30 Cal. 3d 290 (1981) the California Supreme Court defined implied malice as a subjective determination that the defendant in fact realized that his actions had “a high probability … [of] … resulting in death … [and yet acted] with a base antisocial motive and with a wanton disregard for human life.” However, the prosecution does not need to prove that the defendant intended to kill.

Manslaughter is an unlawful killing without malice. If the jury were unable to reach a unanimous verdict on the murder charge against Manuel Ramos because the jurors could not unanimously agree that the prosecution had proven that he acted with malice, which seems unlikely given his statement to Thomas, as he was putting on his latex gloves, that he was going to f… him up, it would then consider the manslaughter charge.

Jay Cicinelli probably was not charged with murder because his statement about smashing Thomas’s face to hell was uttered after he did it. His after-the-fact statement makes it more difficult to discern his intent than is the case with Ramos’s statement before the assault began.

Ramos’s lawyer argued that the statement was merely a warning regarding what would happen, if Thomas disobeyed.

Whether the jury acquits or convicts the defendants ultimately depends on whether the jurors unanimously agree that the prosecution proved beyond a reasonable doubt that the defendant officers were using excessive force that resulted in Kelly Thomas’s death. I believe the video certainly establishes that.

I cannot predict what Anthony Rackauckas will say today, so I will repeat what he said at the conclusion of his opening argument.

Adolfo Flores and Paloma Esquivel of the LA Times described it as follows:

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.”

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