Closing Arguments Continue In Kelly Thomas Beating Trial - KMSP-TV

Closing Arguments Continue In Kelly Thomas Beating Trial

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Santa Ana, CA -

(FOX 11 / CNS) An "angry... unprofessional'' officer eager to "put his hands'' on transient Kelly Thomas set in motion a deadly struggle that amounted to murder, Orange County District Attorney Tony Rackauckas argued today, while a defense attorney for one of the two defendants said they were dealing with a "very dangerous'' man prone to "sudden outbursts of violence.''

In his closing argument of the trial of former Cpl. Jay Cicinelli and former Officer Manuel Ramos, Rackauckas encouraged the jury to use its "common sense'' about Thomas' July 5, 2011, struggle with six officers as the county's top prosecutor showed the panel a photo of the transient's bloodied face in the hospital and walking them through multiple viewings of the graphic video showing the violent conflict.

Rackauckas called the defense claim that Thomas' heart was weakened by years of drug use "nonsense,'' saying there was no medical evidence to support the contention.

"He died from a prolonged struggle with police officers,'' Rackauckas told jurors. "Common sense tells you ... Kelly Thomas put up quite a struggle and didn't have a weak heart. This whole thing about a weak heart is nonsense.''

Ramos is charged with second-degree murder and involuntary manslaughter and Cicinelli is charged with involuntary manslaughter and excessive force stemming from the July 5, 2011, struggle with the 37-year-old Thomas, who was taken off life support and died five days later at UC Irvine Medical Center.

Former Officer Joe Wolfe, who was indicted on charges of involuntary manslaughter and using excessive force, will be tried separately.

John Barnett, attorney for Ramos, argued that the officers cannot be convicted of any charges stemming from the man's death because there was uncertainty about what actually killed him. Defense attorneys have contended during the trial that Thomas' heart was weak from drug use, and that was likely the cause of death, not his treatment by police.

Barnett said Dr. Aruna Singhania, the pathologist who performed the autopsy on Thomas, has waffled on the cause of death, and heart specialists who testified during the trial disagreed on what killed him.

"We don't get started on all this other stuff (murder and manslaughter charges) until there's a cause of death,'' Barnett told jurors.

However, Rackauckas told the jury that Ramos was guilty of second-degree murder based on the legal standard of "implied malice.''

Ramos "forfeited'' his right to use force when he made an "excessive'' threat -- namely putting on latex gloves, holding his fists up to Thomas and telling him he would beat him up if he didn't "start listening,'' Rackauckas said.

The prosecution's legal theory revolves around this exchange between
Thomas and Ramos:

"You see my fists?'' Ramos asked.
"Yeah. What about `em?'' Thomas replied.
"They're getting ready to (expletive) you up.'' Ramos said.
"Start punching dude,'' Thomas replied, as Ramos added, "If you don't
(expletive) start listening.''

That threat gave Thomas the right to defend himself, Rackauckas argued. "The threat is not one of necessity,'' Rackauckas said. "It's one of anger... Ramos was anxious to go after Kelly Thomas. This is not about compliance (with police orders), it's about being angry with Kelly Thomas.''

Thomas, Rackauckas argued, didn't put up a fight himself. "Any of his resistance was defensive,'' Rackauckas said. "It was not assaultive. ... He was just trying to survive is all he was doing. ... Look at the kinds of things he was saying (during the struggle): `Please sir,' 'I'm
sorry,' 'I can't breathe.'''

At one point, Rackauckas played for jurors an audio montage of Thomas' repeated pleas for mercy with the words flashing against a black screen.

When Cicinelli showed up mid-struggle, he reasonably assumed Thomas was a suspect resisting arrest, Rackauckas said. He did not exercise excessive force when he tried to subdue Thomas with a stun gun, according to the prosecutor.

Cicinelli broke the law when he turned the Taser into an "impact weapon,'' Rackauckas argued.

Tapping a stun gun on a lectern twice, Rackauckas said, "This is not a rubber ball. ... This is going to cause damage to someone's face.''

Since Thomas did "not represent a danger to the officer,'' the ex-corporal was wrong to use "deadly force,'' Rackauckas argued.

"That's unreasonable and excessive,'' Rackauckas said. Rackauckas pointed to city policy on the use of blunt objects such as a baton that advise officers to avoid striking a suspect's head to make the argument that the officers should have known better.

The officers also rolled Thomas over during the conflict, making it harder for him to breathe, Rackauckas said. Also, Ramos and Cicinelli held Thomas' feet down and prevented him from getting into a better position to breathe.

Barnett ridiculed as "absurd'' Rackauckas' legal argument about Ramos allegedly making an "excessive threat.'' He said there was no way Ramos could have foreseen that his "conditional threat'' to Thomas would touch off a deadly struggle.

Barnett called Thomas a "very dangerous person,'' and insisted that Ramos acted in accordance with his training during his encounter with the transient at the Fullerton Transportation Center.

Barnett pointed to violent conflicts Thomas had with his mother and grandfather. "He's not just a nuisance,'' Barnett said. "He's dangerous.''

Thomas was prone to "spontaneous violence,'' Barnett said. Ramos, on the other hand, had multiple encounters with Thomas and used a "verbal strategy'' to get the suspect to comply and move on peacefully, Barnett said. In one encounter, security guards handcuffed Thomas and put him in the back of their car, but Ramos let the transient go, Barnett said.

"It shows you he's no bully cop hassling the homeless for fun,'' Barnett said.

On Monday, Dr. Matthew Budoff of Harbor UCLA Medical Center testified for the prosecution that Thomas died because his heart was starved of oxygen during the struggle with six Fullerton officers, including Ramos and Cicinelli. "He didn't have enough oxygen going through his heart muscle at that time,'' Budoff testified.

Under cross-examination by Cicinelli's attorney, Michael Schwartz, Budoff acknowledged he did not do any microscopic analysis of Thomas' heart.

Budoff also acknowledged that Thomas' heart was about 20 percent heavier than it should be for someone his age when he died, but Budoff said that could have been because of fluids pumped into his body to try to save his life.

Dr. Steven Karch, a heart specialist, testified for the defense last month that Thomas' heart was damaged by years of methamphetamine abuse and that the transient could have died at any time, whether he struggled with police or not.

Rackauckas strongly denied the allegation and told the jury, "You're going to send a message whether the conduct of these police officers is acceptable.''

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