It was purported to be a slam-dunk for the prosecution. Here, we were told, was a clear case of excessive force by police officers, nearly every moment of it of captured on audio and video. A mentally ill homeless man is stopped by the police, who beat him into unconsciousness. Five days later he is dead. Three of the involved officers are charged with killing the man, with one of them facing a second-degree murder charge. So horrific was the crime, so compelling was the evidence, that the county’s district attorney himself led the prosecution team, delivering the opening and closing statements and staking his professional reputation on obtaining a conviction.
And yet, after three weeks of testimony and presentation of evidence, a jury deliberates for just a few hours before handing down not-guilty verdicts on all counts against the first two officers to go to trial. (The third accused officer’s trial was pending, but after the acquittal of the first two, the district attorney elected to drop the charges.)
On the evening of July 5, 2011, police in the Orange County city of Fullerton, Calif., about 25 miles down the I-5 from downtown Los Angeles, responded to a report of someone vandalizing cars near the Fullerton Transportation Center, a commuter bus and train station. The first two officers on the scene questioned Kelly Thomas, who was shirtless and carrying a backpack. The encounter was captured on video by a nearby security camera, and the audio was captured by a digital recorder carried by one of the officers. (Warning: the video contains harsh language and depicts a violent encounter that led to a man’s death.)
The video shows that after a few minutes of conversation, during which Thomas claims not to speak English and is evasive about his identity, the officers tell him to sit down. He complies. When Officer Joe Wolfe searches Thomas’s belongings and finds mail addressed to someone else, the officers suspect Thomas of being a thief. The second officer, Manny Ramos, gives Thomas specific instructions on how he is to sit, i.e., with his legs extended and his hands on his knees. When Thomas fails to follow these instructions as precisely as Ramos would have wished, Ramos puts on latex gloves and moves in close to him. “You see my fists?” Ramos asks.
“Yeah, what about ‘em?” says Thomas.
“They’re about to f*** you up . . .”
“Start punching, dude,” Thomas says.
“If you don’t f***ing start listening.”
And at this point, sadly for all but mostly for Thomas, the incident devolved into one in which two people lost all patience with each other. Ramos slaps Thomas on the shoulder with his hand, once again telling him to put his hands on his knees. Thomas instead stands up, prompting Ramos to draw his baton. Officer Wolfe then approaches, also holding his baton. Ramos tells Thomas to get on the ground, and when he does not, running away instead, both officers begin striking him with their batons.
The action moves out of frame for a moment, but the audio makes clear that Thomas is tackled and struck, and indeed when the camera again focuses on the altercation, Thomas and both officers are on the ground near one of the parked police cars. Soon there are six officers involved in the struggle, with most of them trying just to hold on to one or another of Thomas’s limbs and put handcuffs on him. One officer, later identified as Jay Cicinelli, can be seen striking Thomas in the face. Though it isn’t clear in the video, testimony at trial was that Cicinelli was using a Taser as an impact weapon.
Given what we know to have followed, the video is heart-wrenching to watch. Thomas repeatedly says he is sorry and calls for his father. “Help, me, Dad,” he says over and over, and a bit later moans his last words: “Daddy, Daddy.”
What parent, what human, can watch the video and not be saddened and even sickened?
As indeed I suspect the jurors were. So how is that they were not moved to convict the officers? None of the jurors has spoken publicly about the case so any search for their rationale is purely conjecture. For what it’s worth, here is mine:
The jurors were unwilling to convict for the simple reason that the prosecution failed to meet its burden, which is to prove guilt beyond a reasonable doubt. The defense was able to plant doubts in the jurors’ minds in two key elements. First, they offered evidence that allowed the jurors to question the cause of Thomas’s death, and second, they presented testimony that the officers’ actions were reasonable under the circumstances.
The prosecution maintained, and presented medical witnesses who testified, that Thomas had died due to a lack of oxygen to his brain caused by the “mechanical compression” to his chest that occurred when officers were on top of him during the struggle. The defense presented witnesses of equal standing in the medical community who testified that mechanical compression was not in fact the cause of death. One defense witness who discounted mechanical compression as a factor was Dr. Gary Vilke, who has studied and written about in-custody deaths for 20 years. Another doctor, Steven Karch, testified that Thomas had an enlarged heart caused by years of methamphetamine use. Though the autopsy showed no evidence of drug use, Karch’s testimony could not be — and I suspect was not — disregarded by the jury.
In short, the defense raised the possibility, backed up by expert testimony, that the proximate cause of Thomas’s death was not the beating from the officers, but was rather a heart defect that was exacerbated by the struggle. If you cannot establish how the victim died, you cannot prove beyond a reasonable doubt that he was murdered to start with.
The question of the officers’ actions being “reasonable” is trickier, but ultimately the jury was persuaded that they were. Officers Ramos and Wolfe had responded to a radio call of criminal activity and had reasonable suspicion that Thomas may have been involved in it. Thomas was therefore lawfully detained and was obliged to follow the officers’ instructions, no matter how inconvenient he may have found them. When he stood up and ran away, the officers had lawful cause to use reasonable force to prevent his escape.
But was the force used on Thomas reasonable? Given the fact that he died, the natural reaction is to say no, of course not. How can it be “reasonable” that six officers were unable to control one slightly built man without killing him? Every cop knows that getting handcuffs on a resisting suspect is not as easily accomplished as it’s portrayed on television. I’ve been involved in several altercations that required several officers to control a combative suspect, even when every one of the officers outweighed the person being arrested. Though Thomas can be heard saying, “I can’t breathe” in the video, the fact that he can say it is proof that he can in fact breathe.
Officer Cicinelli’s actions, in striking Thomas in the face with a Taser, may at first blush seem unreasonable, especially given the gruesome photos of Thomas’s face taken by his father at the hospital. But defense testimony at trial was that Cicinelli responded to a call for assistance and arrived at the scene as the struggle was ongoing, finding his fellow officers on the ground and fighting with Thomas. There was also testimony that Thomas attempted to take the Taser from Cicinelli, which if true would justify the strikes to his face.
Though the verdict may have been just in a legal sense, it does not mean all the officers were blameless. For his part, Officer Ramos precipitated the altercation by demanding what I think most cops would see as an unreasonable adherence to instructions from Thomas. If he felt there was a risk Thomas would fight or flee, he and Wolfe should have handcuffed him and put him in a police car while they continued their investigation. Given Thomas’s docile behavior during the first few minutes of the encounter, even as he was evasive about his name, this could have been easily done with minimal force. As it was, Ramos allowed Thomas to get under his skin and all but dared him to try to run away. While it doesn’t make Ramos a murderer, he bears moral responsibility for the outcome.
Officer Cicinelli has expressed the desire to get his job back with the Fullerton Police Department, a desire the police chief says he will resist. Cicinelli may have a legal case for reinstatement, but politically it’s a non-starter in a city that was roiled by Thomas’s death and remains so following the acquittals. Last Saturday, 14 people were arrested during a protest against the verdicts outside the city’s police station. Police declared an unlawful assembly after a news photographer was attacked.
The FBI has announced it will examine the evidence in the case to see if civil right laws were violated, raising the possibility that the officers may face charges in federal court. It won’t happen, nor should it. The criminal case is over, leaving many dissatisfied with the outcome. But that’s the way it happens sometimes. The courts do not always deliver satisfaction, nor do they sometimes even deliver justice. What they deliver are verdicts, and this one has been rendered. It’s a pity what happened to Kelly Thomas, but now that’s about all that can be said.