Ultimately it will come down to jurors either believing their own eyes and ears, or believing the paid-for expert witnesses. Medical experts testifying for the defense claim that Kelly Thomas could well have died of heart disease in July of 2011 rather than from the beating he received and the subsequent oxygen deprivation he suffered at the hands (and tasers) of the Fullerton police and shown graphically on video.
The defense took four days to present its case, beginning December 12th, 2013 continuing on the 16th and 17th, and ending yesterday, the 18th. Rebuttal by the prosecution happened today.
Below are excerpts from each day's trial reporting.
Former Fullerton, CA police officer Manuel Ramos is charged with 2nd degree murder, while his fellow officer Jay Cicinelli is charged with involuntary manslaughter and excessive force.
You can read my diary about the prosecution's case: In the Matter of Kelly Thomas, Beaten, then Asphyxiated by Fullerton Police, The Prosecution Rests which contains additional background.
John Barnett, Manuel Ramos' defense attorney.
December 12th: Was Kelly Thomas predisposed to violence?
Four people, including Thomas' grandfather and mother, testified to violent acts they had been subject to by Thomas.
The first witness called was Thomas' 91-year-old grandfather, Walter Dieball, who recounted a June 8, 1995, visit by Thomas to Dieball's Placentia home... Under questioning from Ramos' attorney John Barnett, Dieball testified, " He hit me over the head with a fireplace poker."
Dale Roberts testified that Kelly Thomas punched him in the jaw at a Christmas party on December 19, 2004.
((Defense Attorney)) Barnett: "What happened?"
Roberts: "I was asked to ask him to leave."
Barnett: "You asked him to leave, and he punched you?"
Roberts: "Yes."
Samatha Pepin testified about a June 30, 2010, incident with Thomas at the Anaheim fruit stand where she worked.
She said Thomas was sleeping on the stand's property when she opened up that morning. Pepin said Thomas asked to use a portable toilet on the property and asked for some food. When she refused, "he Thomas started throwing rocks at the stand, telling me he was going to kill me," Pepin said.
The last witness of the day was Thomas' mother Cathy.
Barnett: " In September 2010, did Kelly Thomas put his hand on your throat?"
Thomas: " Yes."
Barnett: " Did he hold his hand on it?"
Thomas: "Yes."
...
Barnett: "Did you seek a restraining order asking Kelly Thomas be kept away from your home?"
Thomas: "Yes."
There is little doubt that Thomas, a mentally ill man, has acted violently in the past. That being said almost a year had passed since the last violent act the defense could find testimony for, while there is little indication from
the video that Thomas was behaving violently before he was struck by officers' batons and forced down on the ground.
December 16hth: Expert Witness Challenges the Medical Examiner's Cause of Death.
((Dr. Gary Michael)) Vilke is a professor of clinical emergency medicine at UC San Diego and has researched in-custody deaths.
The Orange County Coroner's Office ruled Kelly Thomas died July 10, 2011, from a lack of oxygen to the brain brought on by compression to the chest and by head and facial injuries... Vilke testified that blunt force trauma did not cause or contribute to Thomas' death... "Facial trauma doesn't kill people," Vilke said. He testified Thomas did not lose consciousness immediately after the struggle indicating there was no brain injury. Vilke said a CT scan later performed on Thomas looked normal...
... prosecutors have pointed out that Thomas can be heard in the video yelling that he couldn't breathe... "'I can't breathe,' this is a common thing people will say," Vilke said. "The fact that he is screaming... - We know that he is getting a long burst of air out."
Vilke also testified that the amount of blood Thomas lost during the struggle was not enough to kill him or trigger cardiac arrest.
((Prosecutor)) Rackauckas asked Vilke whether it's possible somebody can be ventilating but still not getting enough oxygen.
Vilke answered, "possibly yes."
...
Vilke said he didn't know what caused Thomas' heart to stop later in the ambulance on the way to the hospital.
Medical examiner Dr. Aruna Singhania ((had said)) that mechanical compression to the chest contributed to cutting off the supply of oxygen to his brain.
Vilke said he didn't think mechanical compression factored into Thomas' death.
...
Earlier Monday, clinical psychologist Dr. Robert Flores de Apodaca testified that Thomas had acknowledged in a 1995 interview that he had been using methamphetamines for several years. Defense attorneys contend Thomas died from an enlarged heart brought on by drug abuse...
Here we have a case of He Doctor said / She Doctor said. Presumably the Medical Examiner has no reason to believe one thing or another, while any expert witness wouldn't be on the stand if their testimony didn't support the people who were paying the expert to be there, in this case the defense. Still, it's easy to see how such testimony can shed reasonable doubt; if experts aren't sure what killed Kelly Thomas, is it enough to see the blows, the screams, and the
gruesome pictures for a verdict 'beyond a reasonable doubt' ?
The day continued...
Defense attorneys also called Fullerton police Sgt. Kevin Craig to testify.
...Craig said Thomas was yelling and fighting and he placed his knee on Thomas' back to subdue him. He said the fact that Thomas said he couldn't breathe wasn't cause enough to instruct officers to get off of Thomas. He said he thought Thomas might have a weapon.
Craig said he saw Cicinelli strike Thomas in the head with the butt of his Taser.
Is there ever a case where police testify that they don't think the victim might have had a weapon? Perhaps only when police manage to
kill completely naked people, and then still claim the shooting was justified. But I digress.
December 17th. Why Not Try to Justify Bashing Someone on the Head With a Taser?
Fullerton police officer Stephen Rubio testified that he trained former colleague Jay Cicinelli on use of force and weapons tactics. Rubio told jurors... that Cicinelli's use of a Taser stun gun to strike Kelly Thomas in July 2011 was not what he called "out of policy" with use of force standards.
Rubio said that at the time Cicinelli deployed his Taser during the fight, Thomas was not handcuffed and not under the control of the officers.
Referring to a surveillance video tape of the beating, Rubio testified that instances where Cicinelli strikes Thomas' face and head with the Taser were consistent with the training he received.
Oh. My. FSM.
December 18th. The Defense Rests, But Not Before Revisiting the Bad Heart Theory.
((The defense's)) final witness was a forensic pathology consultant... Karch said he was a medical consultant who specializes in heart and forensic toxicology issues. He said he has worked as an emergency room physician and has researched drug-related psychosis and the effects of methamphetamine use on the brain and heart.
He said he looked at coroner's slides of Thomas' heart and said it appeared to have been enlarged based on evidence of swollen tissue. Karch said enlarged hearts are typical in users of methamphetamine and said the condition increases the risk of coronary artery disease and premature death.
Karch said he reviewed coroner's and medical records and concluded that Thomas' death was caused by "methamphetamine cardiomyopathy" or an abnormally enlarged heart...
Defense attorneys ((then)) rested their case.
I suppose this gets into questions of
proximate cause of death and I am not even going to attempt to play an expert on this matter on Daily Kos, let alone be one.
Even if Thomas did have some sort of problem with his heart, if he hadn't been traumatized, deprived of oxygen and beaten, would he be dead? Does it matter? If a normal person would have survived a beating, can a police officer beat someone who turns out to have a weakened heart, lungs, kidneys in the same manner, end up killing them because of it, and not be held responsible for the death? I don't know. Perhaps we will find out. I suspect it will be interesting to carefully read the judge's instructions to the jury.
December 17th. The Prosecution Rebuts. A bit.
In rebuttal, prosecutors on Thursday called Dr. Anthony Juguilon who heads the pathology team at the Orange County Coroner's office.
Juguilon told jurors he agreed with the conclusions of the autopsy that prolonged compression on Thomas' chest and blunt facial injuries - especially a nose fracture - cut off his air flow and resulted in asphyxia. He said the autopsy showed evidence of compression including contusions on the left side of Thomas' chest and abdomen. he said Thomas' labored breathing and diminished speaking ability were consistent with asphyxia.
Under cross-examination, Juguilon said he agreed with Steven Karch's opinion that Thomas had had heart disease.
Jurors have been dismissed for the holidays. Closing arguments in the case are expected to begin on or shortly after January 6th.
One way or another, this third trial in California's history where an on-duty police officer has been tried for murder will make history.