Kelly Thomas Trial: DA makes final appeal, jurors begin deliberations (updated)

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Updated 6:50 p.m. 

After a half-day of deliberations, jurors in the case of two Southern California police officers accused of killing a homeless man will have a long weekend before resuming Monday.

The Orange County jury got the case late Thursday morning after five weeks of testimony and arguments, then deliberated for several hours. They'll have Friday off.

Former Fullerton police officer Manuel Ramos has pleaded not guilty to second-degree murder and involuntary manslaughter in a rare prosecution for actions taken on duty.

Former Cpl. Jay Cicinelli has pleaded not guilty to involuntary manslaughter and excessive force.

The two defendants are accused of killing 37-year-old Kelly Thomas, who died five days after the July 2011confrontation.

Surveillance video that captured the incident was a key part of the trial.

--Associated Press

Earlier:

The fate of two former Fullerton police officers, charged in connection with the death of a mentally-ill homeless man, is now up to a jury.

Manuel Ramos and Jay Cicinelli face charges of involuntary manslaughter in connection with the July 5, 2011, beating of Kelly Thomas. Thomas died five days later in a hospital. Ramos faces an additional count of second-degree murder, and Cicinelli is also charged with use of excessive force.

Before the jury got the case Thursday, Orange County District Attorney Tony Rackauckas presented his rebuttal argument to the closing statements made by defense attorneys John Barnett and Michael Schwartz.

RELATED: Kelly Thomas Trial Update: Defense tells jury to analyze case 'without the emotion'

"Thank you for all your time and attention in this case. It's appreciated by all of us," Rackauckas told the jury. "I'm not going to go back over everything."

"The first thing Mr. Barnett did was try to run down the victim, Kelly Thomas. He spent a lot of time going over the various bad acts in Kelly Thomas' background. And then [Barnett] said, that's why he's homeless.

"The assault on his grandfather, and putting his hands on his mother's throat is bad. But it's not why he's homeless. No evidence was presented in this case to try to explain why Kelly Thomas was homeless, and it's not relevant. We're here to decide about what happened on July 5, 2011.

RELATED: Kelly Thomas trial: Grandfather says Thomas beat him with fireplace poker (updated)

"Mr. Barnett is trying to tell you that Mr. Thomas was a bad and dangerous person. There is no evidence at all that defendant Ramos had any knowledge about what happened [with Thomas'  grandfather and mother]. If Ramos thought he was dealing with a wild and dangerous criminal, he would have acted differently. This case is replete with evidence that defendant Ramos had no concern about Kelly Thomas being a dangerous person.

"Mr. Schwartz and Mr. Barnett spent a lot of time talking about burden of proof. Mr. Schwartz talked about circumstantial evidence. And what the the instruction tells you is you have two reasonable interpretations, one of innocence and one of guilt. 

"That instruction goes on to explain that if you have one interpretation that is reasonable and one that is unreasonable, then you have to accept the reasonable interpretations and reject any that are not reasonable.

"It's terribly important when you analyze the evidence not to examine just one piece – it's important to look at everything and see where that one piece fits in. It's about the entire view of all the evidence."

Rackauckas used the analogy of a mulligan stew as he told the jury to look at everything, not just certain parts of the case.

"It's unusual that we have video and audio. You can see and hear what occurred here. You can watch and listen. If we didn't have the video and the digital audio recorders, this case could be explained away. 

"There's some things you have to be careful about when you consider the case. What our position is, that defendant Ramos had a duty of care for Kelly Thomas and it was a continuous duty to not put Kelly Thomas at risk of harm to third parties. And the greater the risk and threat to Kelly Thomas, the greater the duty of Ramos to come forward and stop the use of force. That duty is an act, a duty that he is not performing. "

DA: Past encounters between Ramos and Thomas 'misrepresented'

"Mr. Barnett talked about some of the prior contacts that Ramos had with Kelly Thomas," Rackauckas said. "And he characterized those contacts as Ramos being a pretty nice guy, using a verbal strategy to keep things right. Those contacts I think you'll see were mischaracterized and misrepresented by Mr. Barnett."

Rackauckas used the courtroom monitor to show transcripts of conversations in several of the prior contacts between Ramos and Thomas, starting with two incidents in 2009. 

The DA told the jury that Ramos' conversations with Thomas were "mocking." 

Rackauckas said a July 2010 encounter between Ramos and Thomas at a department store was not a case of Thomas being violent or aggressive. "[Thomas] was just sleeping in the parking lot," Rackauckas said. "Kelly wasn't being hostile to Ramos."

Rackauckas then reviewed the comments Ramos made at the beginning of the July 5, 2011 incident. (Ramos: "See these fists. They're going to f**k you up." ). The DA said this was another instance where Ramos strategy was flawed.

"Another thing that Mr. Barnett did during his argument was chastising us for bringing in an expert (former FBI tactics specialist John Wilson) from 3,000 miles away. But here's where they went for their witnesses. They went to the Fullerton Police Department. They didn't go to any other place in the county or the country.

"It's up to you to judge the credibility of those witnesses (Fullerton Police Department officers Cpl. Stephen Rubio and Sgt. Kevin Craig)."

Rackauckas told jurors they should consider what "personal relationship or interest" that two Fullerton officers might have in the outcome of the case. 

He pointed out both officers still work for the Fullerton Police Department: "They have a strong reason to not say that these two defendants did anything unreasonable, anything wrong."

Rackauckas said Sgt. Craig, who participated in the physical struggle with Thomas after he arrived on the scene, is "not going to admit he or the defendants did anything wrong."

DA: The police do not set the standard for use of force

"The Fullerton Police Department manual excerpts are in evidence, but it's not to be taken as a statement of the law," Rackauckas told the jury. 

Rackauckas refuted Barnett's claim that the officers were making an arrest.

"This is a detention. This is Officer Ramos' detention of Kelly Thomas, just relaxed and not doing anything," Rackauckas said, as he showed the jury a slide taken from the surveillance video of Thomas and Ramos standing. 

"Running out of options is not a justification for use of force in the way it was done," Rackauckas told the jury, countering defense arguments that the force used was justified because officers had no other options to control Kelly Thomas.

"Defendant Cicinelli knows that 'running out of options' is no excuse for use of force," Rackauckas said. He referred to a Sept. 14, 2010, Use of Lethal Force Exam taken by Cicinelli, that included a question of when use of deadly force is justified. Cicinelli got the answer right, but two of the wrong answers, Rackauckas said, showed Cicinelli recognized when use of deadly force is not proper.

'Two jabs' claim questioned by DA

Rackauckas used audio from Cicinelli's digital audio recorder as he showed transcript quotes from that audio on the courtroom monitor. 

"There's no evidence that there were only two jabs to the head," Rackauckas said. "The only evidence that was presented in this trial was the statements of Mr. Schwartz. What does Cicinelli say about what he did: 'I got to the end of my Taser and I probably…I just probably smashed his face to hell.' That doesn't sound like two jabs to me."

The district attorney then played the audio from Cicinelli's digital audio recorder that included the transcribed quote. "I f**king beat him probably 20 times with my Taser." 

Rackauckas showed a picture of a yellow taser covered in blood: "How does his Taser get so bloodied from just two jabs?"

Rackauckas then played the video of the incident: "What you see is, first, [Cicinelli] hits Kelly Thomas with the Taser. Then he raises his hand again, and you see Kelly Thomas' arm come up. This was not self-defense by Cicinell. This was where Cicinelli was being aggressive and hitting Thomas in the face."

"Here it is in slow motion," Rackauckas said as the surveillance video is played. Cicinelli is seen striking Thomas several times. "It's a lot more than two hits, and they're hard hits." 

Cause of death 'controversy'

Rackauckas displayed slides that showed the transcribed testimony of four doctors. The four included pathologist Dr. Aruna Singhania, who performed the autopsy of Thomas, and Dr. Michael Lekawa, the UCI Medical Center doctor who treated Thomas from July 5, 2011 to July 11, 2011. The doctors said Thomas died from a lack of oxygen to his brain caused by mechanical compression to the chest and blunt force trauma to Thomas' head and face.

"We don't have a controversy here about the cause of death. The cause of death is unmistakingly clear," Rackauckas told the jury.

Rackauckas then questioned the credibility of the expert medical witnesses called by the defense. He said nobody disputes Dr. Gary Vilke's studies, "but they don't really apply to what happens out in the field."

Vilke has researched in-custody deaths for nearly 20 years and published several reviews and articles about "mechanical compression." Vilke testified that he didn't think mechanical compression caused Thomas' death. 

Rackauckas then questioned the testimony of Dr. Steven Karch. Karch testified Thomas had an enlarged heart caused by years of methamphetamine use and disputed the autopsy finding that Thomas died from a lack of oxygen to the brain caused by chest compression and facial injuries. Karch also said Thomas' death was preceded by a "spontaneous psychotic episode" brought on by meth use. Rackauckas said Karch admitted he is not a psychologist. And an autopsy found no drugs in Thomas' system.

"The value of these two witnesses is not very great and wouldn't be acceptable in this case," Rackauckas said.

'Without lawful excuse or justification' 

"If you find that police used unreasonable use of force in any of these instances it's not justifiable," Rackauckas said. 

"There is a heat of passion instruction, which could be a defense to second degree murder or involuntary manslaughter, but it doesn't fit the case. Look at the elements of it. None of those are things that are even close here. 

"Some of the things the defense said were ridiculous. Mr. Barnett told you two or three times, this threat where Officer Ramos puts his hands in front of Thomas' face was not serious," Rackaukas said. "You look at it, you see it, see if it's a threat to use lethal force. That's a terrible threat. It's a threat to beat somebody severely. It's a threat to use excessive force, clearly. You've got some common sense. You look at it, and see what you think it means."

Rackauckas also countered defense arguments, which he called "excuses." He showed the jury a slide that enumerated those "excuses" including one that said Thomas "actually died because he had a weak heart." Rackauckas addressed eight defense "excuses" with the jury. 

'Homicide by a failure to act'

Rackauckas said Ramos is guilty of second-degree murder because of the "affirmative acts that [Ramos] did and by failure to act. A police officer does have a duty of care."

SLIDE: "If you conclude that the defendant owed a duty to Kelly Thomas, and the defendant failed to perform that duty, his failure to act is equivalent to the intentional commission of an act."

Rackauckas again played the surveillance video, about 20 minutes into the 34 minute tape, as he wrapped up his rebuttal. Thomas is heard screaming for his dad to help him. 

Thomas: "Help me, help me dad. Ouch. Dad, dad help me. I can't breathe."

(Thomas' mother, Cathy, began crying in the courtroom as this was played. His father, Ron, looked to his right, casting his eyes downward.)

Rackauckas: "You see two things. Ramos is doing acts. He's holding Thomas' legs, and he brought all the force to bear on Kelly Thomas in the first place, and now he's assisting to the point where Kelly Thomas is almost dead."

"It became more and more apparent that Kelly Thomas was going to die," Rackauckas said. "You see blood everywhere, and at the point where Kelly Thomas is hobbled, Officer Ramos just gets up and walks away."

As he concluded, Rackauckas told the jury that Ramos and Cicinelli exceeded their authority as police officers in the altercation with Kelly Thomas. 

"We have great law enforcement in Orange County. Professional police officers who do their job day in and day out. This is not an indictment of the Fullerton Police Department or police in general. 

"This is about a defendant, Manuel Ramos, who is acting as a police officer but abuses his authority. He continued to act in disregard for the life of Kelly Thomas." 

Rackauckas then addressed the charges against Cicinelli. 

"He unnecessarily increased the use of deadly force by pounding the face of Kelly Thomas with his Taser, an impact weapon, and that contributed to the death of Kelly Thomas.  As you weigh and consider the evidence, there won't be any reasonable doubt. Ramos is guilty of second degree murder and Cicinelli is guilty of involuntary manslaughter." Rackauckas said, concluding his rebuttal. 

After a 20-minute break, the jury began their deliberations.

"It's now a waiting game," Ron Thomas said, as he left the courtroom Thursday. 

--KPCC's Ed Joyce

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