Kelly Thomas trial update: Defendant's verbal strategy to control Thomas comes under scrutiny

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Update: 5:35 p.m.: Following the mid-afternoon break, defense attorney John Barnett again questioned former FBI tactics expert John A.Wilson Jr. about defendant Manuel Ramos’ choice of tactics in his dealing with Kelly Thomas. 

He asked Wilson whether any of the 500 arrests he had participated in as an FBI agent involved him "putting his hands" on suspects.

Wilson said some, but not all of the 500. 

Barnett asked if Wilson had ever been in a situation, like the incident between the Fullerton police officers and Kelly Thomas, where a suspect was resisting and he was rolling around on the ground with a suspect?

Barnett: "I'm talking about down on the ground, wrestling with a suspect that is trying to get away."

Wilson: "Yes, a handful, less than 10, according to my best recollection at this time."

Wilson said there were always other officers assisting in the arrests he was involved in with during his work at the FBI.

Barnett next referred to a section of the video where Thomas is seen standing up during his conversation with Ramos and a second officer.

Barnett: "What about when he stands up?"

Wilson: "He stood up when something else happened, the fact pattern changed. In my opinion, he [Ramos] had aggressively made contact with Kelly Thomas."

Barnett: "He [Ramos] had a right to use force?"

Wilson: "He had a right to use force to respond to any resistance he was encountering."

Barnett: "And when officers pursued Thomas?"

Wilson: "There is a tactical decision to be made and they made it. They decided to purse and arrest him." 

Barnett: "You don't quarrel with that?"

Wilson: "No, I don't."

Wilson said officers had a "split second" to make a decision "in the heat of the moment" as to whether to let Thomas go or pursue him. 

But under continued questioning from Barnett, Wilson said:  "Everything changes when officer Ramos puts his hands on Kelly Thomas[ …] It's no longer a use of appropriate force." Wilson referred to the point of the video, where Ramos make physical contact withThomas and Thomas stands up. 

Wilson, under questioning from Barnett, said he would have eased up on the restraint of Thomas, taking the risk to let him go, considering he was under suspicion for checking car door locks in a parking lot. 

Barnett next asked questions around Fullerton police Sgt. Craig's arrival during the night of the incident. Barnett quotes Craig as telling officers not to remove the handcuffs from Thomas. 

Barnett: "You said they should have stopped when he said he couldn't breathe?"

Wilson: "That would have been the safest tactical option."

Barnett: "If he's still fighting, he's still a danger?"

Wilson: "He's obviously less of a danger because he's articulating he can't breathe and 'you're hurting me.'"

Wilson said Ramos or Cicinelli should have continued to be in charge of the scene despite Craig's higher rank since they had more knowledge of the situation. 

Barnett then asked about the “Code 3” calls the officers made to request more assistance.

Barnett: " Did you detect any urgency in their calls.

Wilson: "Yes."

Barnett: "Would you say they were in a stressful situation?"

Wilson: "Yes, they were."

Barnett questioned Wilson about whether he believed Thomas should still have been let go after he allegedly attempted to hit Ramos.

Barnett: "You think taking a swing at a police officer, they should let him go?"

Wilson: "Yes, they have a reason to restrain him. Is it risky to use this force or not? I think Officer Ramos, if he was swung at, he had the right to restrain Mr. Thomas for taking a swing at him."

Barnett: "Doesn't that create a more dangerous situation?"

Wilson: "Yes, in that instance." 

But Wilson said  at that point in time Thomas was “defending himself."

On further questioning from Barnett, Wilson said "If excessive force was used on Mr. Thomas illegally, he has the right to defend himself."

Barnett: "Even using a gun?" 

Wilson: "He (Thomas) put his hands up to protect his face and made contact with a less than lethal impact weapon."

Next, Cicinelli defense attorney Michael Schwartz asked Wilson about his experience using a baton and a Taser. 

Wilson said he had never used a Taser in the field and has never used a straight baton but did carry a collapsible baton.

Schwartz used the video of the incident.

Thomas is heard saying "ouch" at 19 minutes into the video, as it is paused in the courtroom. One officer can be seen on the screen (Cicinelli) but other officers and Thomas are behind a tree or bush in the video. 

Schwartz: "There is no way of seeing what my client is looking at from this vantage point."

Wilson: "No."

Schwartz: "Can you hear my client announce 'tasing?'"

Wilson: "I hear someone announce that yes."

Schwartz: "What do yo believe my client is reaching for here?" 

The video is stopped, rewound and paused several times here, as Wilson tries to identify what Cicinelli is doing.

Schwartz said his client is removing a cartridge on the Taser "so he can use the Taser on the 'dry' mode."

Schwartz: You see the light coming from my client's hand?"

Wilson: "That would be the Taser."

As the video is played again, Cicinelli is moving (video: 19:16:84) away from Thomas legs, which are kicking out toward the Taser in Cicinelli's right hand. The video is paused again.

Wilson describes what is seen on the single frame of the video: Thomas legs and bare feet and Cicinelli in plain view. The rest of the officers and most of Thomas upper torso are out of view behind the foliage. 

Schwartz: "Now, do you hear the click of the Taser? Are the darts being effected, are they closing the circuit?"

Wilson: "I don't know."

Schwartz: "And Thomas has not said "I can't breathe" at this point."

Wilson: "I believe so."

Judge William Froeberg then recessed court for the day. The trial resumes at 8:45 a.m. Tuesday, with Wilson back in the witness stand

 

4:10 p.m.: Following the lunch recess, former FBI tactics expert John A. Wilson Jr. continued to answer questions from Orange County District Atty. Tony Rackauckas, as video of the incident was again played

Rackauckas: "Is it appropriate police conduct for an officer to use the words ["See my fists. They're getting ready to f***  you up."]."

Wilson: "No, it is not appropriate to do so."

Rackuackas: "Why?"

Wilson: "The subject is in the position you requested and has already complied. Any further threats only increase the chances the situation could spiral downward … create hostility to that individual and increase the chances of something not good happening."

The video of the incident is played again.

Defendant Manuel Ramos (on tape): "See my fists, they're getting ready to f*** you up."

Kelly Thomas: "Start punching dude."

Rackauckas (to Wilson): "ls using the baton appropriate in this situation?"

Wilson: "No, it would not be appropriate to proceed. And by using the baton in this situation,  it only exacerbates the situation and - using the verbal comment 'f*** you up' makes it more dangerous."

The video is played again the courtroom. This time, about 20 minutes in, Thomas begins to scream "help me, help me, dad.” The video shows four other officers, including Ramos and co-defendant Jay Cicinelli involved in the physical struggle. Thomas is on the ground.

Rackauckas: "Is it appropriate for police to proceed in this tactic to hogtie and restrain the suspect in this manner?"

Wilson: "Its gone from a 'stop and inquire about' […] to a situation where life support, medical attention is needed. […] You change your tactics from restraining the suspect to giving them the support they need so they don't die."

The video resumes. Six officers are seen over Thomas. Thomas' voice is lower in volume and tone as he continues to say "help me, dad."

Rackauckas asked if restraint was still necessary at this point of the altercation.

Wilson: "The priority now is not to restrain this person. It's quite obvious that first aid and life-saving actions should be the priority. The amount of force that is being used at this point in time outweighs the risk of using it and the risk of something adverse happening."

Rackauckas then yielded the floor to Ramos’ defense attorney John Barnett. He started his cross examination of Wilson, by asking whether he had street experience as a law enforcement officer. 

Wilson: "Not in a uniform, not in a patrol car."

Barnett: "You never walked a beat?"

Wilson: "No sir."

Wilson also said he had not carried a baton and he never used one.

"We would teach the risk and reward of using all the tools that a police officer goes to work with," Wilson said. He said the tactical instruction he taught did not include the mechanics of using a baton effectively or ineffectively but instead "the risks and ramifications of using a baton."

Wilson told Barnett that he had seen a baton used in the field in an actual law enforcement situation.

Wilson also said on questioning from Barnett that he had not used or been trained in the use of a Taser. 

Wilson: "It is a pain compliant tool used to gain control over an individual by electronically distracting them over a period of time."

Barnett then asked Wilson questions about use of force and tactics to get a suspect to comply.

Barnett: "It's preferable if the officer can accomplish that by words right."

Wilson: "Yes."

Barnett referred to previous contacts between an officer and a suspect, when verbal threats worked to accomplish the action required by the officer without physical action. 

Barnett: "If verbal threats worked in the past, can we assume it would work again?"

Wilson: "No, the fact pattern is going to change each time."

The questioning focused on whether Ramos’ saying,  "You see my fists? They're getting ready to f*** you up" was appropriate as a verbal threat to get Thomas to comply with Ramos. Wilson testified Ramos' comment was not a good tactical choice. 

Barnett cited seven previous contacts between Ramos and Thomas, where Ramos used a verbal strategy to get compliance without use of physical force.

Barnett: "He (Ramos) was entitled to tell him (Thomas) what the consequences of not complying would be, right?"

Wilson: "Right."

Barnett: "So this was a good strategy?"

Wilson: "The message that he communicated ‘these fists are going to f*** you up’ has nothing to do with arresting the suspect."

Barnett: Do you think it's important for police officers in the field to understand who they're talking to?"

Wilson: Yes, it's important to establish rapport."

Wilson said Ramos should not have used the same language (f***) as Thomas in his interaction with Thomas. 

Wilson: It's not a professional way to build rapport."

Barnett: "Is is fair for Ramos to assume that verbal threats that were successful in his previous interactions with Thomas would be a successful strategy again"

Wilson: "Yes."

Barnett: "Then it would be appropriate to use a verbal threat?"

Wilson: "But my point is it's not guaranteed that it will work again."

Barnett: "But it was certainly worth trying?"

Wilson: "Yes it was."

Wilson remained on the witness stand as the court took its afternoon break.

 

1:50 p.m.: Following the morning recess, Orange County District Atty. Tony Rackauckas resumed his questioning of former FBI tactics expert John A. Wilson Jr. 

Gone from the large projection screen was an aerial photo of the Fullerton Transportation Center that had been shown before defense attorney John Barnett objected to its use. 

Instead, the video of the incident was played, starting from the beginning of the conversation between defendant Manuel Ramos and Kelly Thomas.

Thirty seconds in Rackauckus pauses the video on a frame showing Ramos standing next to Thomas who is wearing a backpack.

Rackauckas: "Is there a show of force here?"

Wilson: "The mere presence of a police officer in uniform is a show of force as is his [Ramos’] hand on the straight baton." In the video , Ramos is seen twirling his baton in his right hand.

Rackauckas advances the video and pauses again. "Do you see any progression?" he asks Wilson.

Wilson: "Yes, Officer Ramos has made his appearance with his uniform on and his baton is displayed."

The video is again played and paused.

Rackauckas: "Does this officer show any indication that there is any kind of a threat from this person, Kelly Thomas?

Barnett: "Objection."

Judge William Froeberg: "Sustained."

Several more questions from Rackauckas met objections from Barnett and were sustained by the judge. Rackauckas resumed playing the video of the conversation between Ramos and Thomas.

At 5:14 in the video, Rackauckas paused it again. He asked Wilson several questions about police procedure. Barnett raised several objections which Judge Froeberg sustained. 

One question was answered: Wilson said the confrontation, still only verbal, was beginning to escalate at this point. 

The video was played again with Thomas shown sitting on the ground, following instructions from Ramos, as their conversation continued. Ramos is heard telling Thomas about the possibility of Thomas being arrested on suspicion of burglary and going to jail. 

Ramos: "How much of you had to drink today?" 

Thomas: "I had a beer today."

Thomas, at Ramos request, is now sitting on the ground with his legs straight out in front of him and his arms placed behind his back. 

The video is stopped at 12:22.

Rackauckas: "Is this is an opportunity for the officer to make an arrest at this point?"

Wilson: "Yes. This is a perfect opportunity that presents the least amount of risk associated with this tactical decision."

The video is played again. Ramos and Thomas continue in conversation. It is paused at 13:46.

Rackauckas: "Do you have an opinion whether Kelly Thomas poses a risk or harm to the officers?"

Barnett: "Objection, no foundation."

Judge Froeberg: "Sustained. Counsel in sidebar." 

Following the sidebar, the video is played again. This time, it is paused as Ramos is seen turning his back and walking away from Kelly Thomas.

Rackauckas: "If a person being detained is a threat to police or anyone else would a police officer walk away and leave him sitting there?"

Wilson: "Clearly, no."

Rackauckas: "Why?"

Wilson: "It gives the suspect the opportunity to act, it's inherently dangerous to turn your back on someone you think may have committed a crime. It increases your risk by turning your back on a suspect you haven't frisked […] It's extremely dangerous in a situation like this."

At the next point where the video is paused, Ramos has returned from his patrol car to Thomas, putting rubber gloves on.

Wilson was asked whether putting on the rubber gloves was a show of force by Judge Froeberg, after Barnett objected to several Rackauckas' questions about the gloves. 

Wilson: "It indicates that there is going to be contact made, where blood or some body fluid may be exposed due to some form of contact."

A few more seconds of the video is played and paused (15:39). It now shows Ramos, with gloves on, standing over Thomas, still sitting.

Ramos is heard saying, "See my fists, they're going to f*** you up."

Rackauckas: "Did you hear that threat?"

Wilson: "Yes."

Rackauckas: "Did you see any indication that Kelly Thomas was being arrested from the point Ramos returned from his patrol car to Thomas?"

Wilson: "No."

The next portion of video played shows Thomas standing up, moving away from Ramos and a second responding officer Joe Wolfe.

Thomas is ordered to "get on the ground" as the three move out of the camera’s view briefly. Thomas is heard saying, "OK, I'm sorry, I'm sorry dude, OK, OK" in response to officers' commands.

When the video is paused, Thomas is face down on the concrete, arms behind his back, with Wolfe on top of Thomas and Ramos on one side of Thomas.

Rackauckas asked Wilson about pain compliance techniques. 

Barnett objected to one question and the judge overruled Barnett's objection and repeated Rackauckas' question to Wilson. 

Judge Froeberg: "If an officer has control of an individual's arm and it appears the arm is midway up the back, being pushed up by an officer is that a pain control technique?"

Wilson: "Yes, it is."

The video is played again. 

Thomas: "I can't breathe man, please I can't breathe, I can't breathe."

Officer: "Put your hands behind your back."

Thomas: "OK, I can't breathe man. I can't breathe, I can't f****** breathe, man."

Thomas: "I'm sorry dude, I'm sorry dude, please, please, please." 

Thomas: "Don't, ouch."

Thomas is now on his back and a Taser is used. Thomas screams. His screams increase.

The video is paused at this point.

Rackauckas asked Wilson if it is normal police procedure to use an so called “impact weapon” like a Taser  on a suspect’s head. During the video, Cicinelli is seen using the Taser to hit Thomas on the head.

Cicinelli's defense attorney, Michael Schwartz, objected. Judge Froeberg overruled.

Wilson: "No, that would be not good proper police procedure."

Rackauckas: "Why?"

Wilson: "An impact weapon to the face, to the head, and that's going to cause serious bodily injury, which is considered deadly force."

The court was recessed for lunch.

Rackauckas is expected to continue his questioning of Wilson, including playing of the video of the incident, when court resumes at 1:15 p.m.  

11:03 a.m.: Trial resumed Monday for two former Fullerton police officers charged in connection with the 2011 death of Kelly Thomas, with a former FBI expert in the training of SWAT teams testifying that “too many officers […] may be detrimental” in tactical situations such as subduing suspects.

Thomas, a 37-year-old mentally ill homeless man, died five days after an altercation with six Fullerton police officers, including defendants Manuel Ramos and Jay Cicinelli.

Ramos, 39, is charged with second degree murder and involuntary manslaughter; and Cicinelli, 41, is charged with involuntary manslaughter and use of excessive force in Thomas' death. 

Under questioning from Orange County District Atty. Tony Rackauckas, former FBI unit chief John A. Wilson Jr. discussed the eight principals of tactical training, many of which are incorporated in the Fullerton Police Department policy manual.

"Being able to effectively communicate will reduce the chances of someone (suspect or law enforcement) getting hurt," Wilson testified as he enumerated the principals. 

He said the sixth tactical principle is "control of yourself, control of your suspect, control of your environment."

"The best way to control a suspect is to put them in handcuffs and control ranges from verbal commands to handcuffs," Wilson testified. 

He said another principle is "superiority of personnel and firepower."

But he said, "Too many officers and agents may be detrimental [in some situations]."

Rackauckus asked Wilson about the tactics for dealing with a high-risk confrontation between officers and a suspect. He also asked whether the conduct of Ramos and Cicinelli was reasonable under the circumstances of their 2011 encounter with Kelly Thomas.

Rackauckas: "You have developed some opinions in this case?

Wilson: "Yes sir."

Rackauckas: "You have written a report and have it with you?"

Wilson: "Yes, sir."

Rackauckas: "What were some of the areas you reviewed?"

Wilson: "The digital audio recorders [from Fullerton police officers at the scene of the incident] and the video I have reviewed. I reviewed the Peace Officers Standards and Training Manual and sections of the Fullerton Police Department manual."

Wilson is a former Marine and was responsible for tactical team training, excluding SWAT. He testified that he taught tactical training to new FBI agents and to state and local police officers. Wilson said he had also developed tactical training curriculum. Wilson said he also had worked on an FBI narcotics task force and participated in more than 500 arrests during an eight-year stretch of his 26 year FBI career. Wilson, on questioning from Rackauckas, testified he is being paid $200 by Orange County to evaluate the case and serve as an expert witness. 

Wilson said he reviewed the training and activity records for Ramos and Cicinelli, including their training in the use of lethal force, Fullerton Police Department reports of the incident and transcripts of the digital audio recorders.

Rackauckas showed an aerial photo of the Fullerton Transportation Center, where the altercation between officers and Thomas occurred the night of July 5, 2011. The photo showed a nearby bar, the bus depot, the incident location and the location of the surveillance camera. Rackauckas asked Wilson what would be good police procedure upon arriving at the scene.

During Wilson’s testimony, Ramos' defense attorney John Barnett raised several objections, many sustained by Judge William Froeberg.

At one point Barnett told Froeberg he objected to the entire line of questioning. The judge and attorneys met in a sidebar outside the courtroom to discuss the objection. Following the sidebar, Judge Froeberg adjourned the court for the morning break. 

 

6 a.m. The trial resumes Monday in a Santa Ana courtroom for two former Fullerton police officers charged in the July 5, 2011, death of a homeless, mentally ill man.

Manuel Ramos, 39,  is charged with second degree murder and involuntary manslaughter; and Jay Cicinelli , 41, is charged with involuntary manslaughter and use of excessive force in the death of Kelly Thomas, 37. 

Orange County prosecutors are expected to call more witnesses Monday in the fifth day of the trial.  

Several key witnesses and evidence were presented by prosecutors in the trial's first week: 

  • The Fullerton Police Department crime scene investigator, Dawn Scruggs, who collected evidence at the Fullerton Transportation Center the night of the incident.
  • Paramedics, including Fullerton Fire Department Capt. Ron Stancyk, who treated and transported Thomas.
  • The Fullerton police sergeant who synchorized audio from officers' voice recorders to a surveillance video of the incident.
  • Pathologist, Aruna Singhania, who performed the autopsy on Thomas. 

Singhania testified Thomas died from a lack of oxygen to his brain caused in part by chest compression and blunt force trauma to his head and face that happened during the struggle with officers.

Defense attorneys questioned Singhania about her cause of death conclusion.

Defense attorneys for Ramos and Cicinelli have said in court that Kelly Thomas died from an enlarged heart, brought on by years of drug abuse. 

During her testimony, Orange County District Atty. Tony Rackauckas asked  Singhania if Thomas died from an enlarged heart.

"He died with an enlarged heart, not from an enlarged heart," Singhania said. "That's (enlarged heart) not part of the cause of death."

A video of the incident was also played in the court in addition to an audio-only version. Both begin when Ramos begins talking to Thomas.

The roughly 34-minute video, taken from a surveillance camera at the bus center, was synchronized with audio from Fullerton officers' voicer recorders. Once the physical struggle begins, Thomas cries for help, repeatedly calling out for his dad, Ron Thomas. 

Also last week, graphic, color photos of Thomas, taken in the hospital the night of the incident and during the autopsy, were shown.  

The court recessed earlier than planned last Thursday, when Rackauckas told Judge William Froeberg that his next witness was coming from out of state and was not available.

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