Orange County district attorney Tony Rackauckas uses a taser similar to the one used by officer Jay Cicinelli as a blunt-force weapon against Kelly Thomas during closing argument in the trial of two former Fullerton police officers on Tuesday, Jan. 7, 2014 in Santa Ana, Calif. Cicinelli and Manuel Ramos pleaded not guilty in the beating death of Kelly Thomas, 37, a mentally ill homeless man. Thomas died five days after a violent struggle with officers who were responding to a report of a man breaking into cars at a transit hub. (AP Photo/The Orange County Register, Joshua Sudock, Pool)
Defense attorney John D. Barnett, who is representing former Fullerton police officer Manuel Ramos in the beating death of Kelly Thomas, delivers his closing argument, Tuesday, Jan. 7, 2014, in Santa Ana, Calif. Ramos and fellow former officer Jay Cicinelli pleaded not guilty in the beating death of Thomas, 37, a mentally ill homeless man. Thomas died five days after a violent struggle with officers who were responding to a report of a man breaking into cars at a transit hub. (AP Photo/Orange County Register, Joshua Sudock, Pool)
Bruce Chambers, pool/The Orange County Register/AP
Former Fullerton officer Jay Cicinelli, 42, listens to the opening statements of John Barnett, the defense attorney for fellow former Fullerton officer Manuel Ramos on Monday, Dec. 2, 2013 in Santa Ana, Calif. Orange County District Attorney Tony Rackauckas told jurors that former Fullerton officers Ramos and Jay Cicinelli were responsible for the death of 37-year-old Kelly Thomas in July 2011. Thomas, whose family says was schizophrenic, died five days after the violent confrontation with six officers who responded to a call about a man jiggling car door handles in a transit center parking lot. Ramos is charged with second-degree murder and involuntary manslaughter. Cicinelli is charged with to involuntary manslaughter and use of excessive force. Barnett portrayed Thomas as an unpredictably violent person in his opening statements.
Jurors are considering whether two former Fullerton police officers are guilty of charges in the 2011 death of Kelly Thomas, a mentally-ill, homeless man. Legal experts say deliberations could take a few days or more, given the complexity of the case against 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 excessive force in connection with the July 5, 2011, beating of Thomas, 37. A violent struggle with police outside the Fullerton Transportation Center left Thomas bloodied and unconscious. He was taken to a hospital, put on life support and died five days later.
An eight-woman, four -man jury started deliberating Thursday in Orange County Superior Court in Santa Ana. The jury must weigh each count as they consider the evidence in the case. And, that could be a long process.
"It's impossible to know how long the jury will take, but I would expect in a case of this significance and this amount of evidence, it will take the jury at least a couple of days to get organized and get through the evidence," said Laurie Levenson, a law professor at Loyola Law School in Los Angeles and a former federal prosecutor. "If they come back with an immediate verdict, it's probably not a great sign for the prosecution."
A 34-minute surveillance video of the altercation between officers and Kelly Thomas was used frequently in the trial by prosecutors and defense attorneys. In his closing rebuttal argument, Orange County District Attorney Tony Rackauckas asked jurors to watch and listen to the video as they deliberated the charges against Ramos and Cicinelli.
"When you have things like the videotape, I would expect that there are certain jurors that will want to go through it slowly and deliberately and that will take time as well," Levenson said.
During the trial, defense attorneys and prosecutors also used various legal and policy citations, such as instructions about the appropriate use of force from the Fullerton Police Department policy manual.
"The Fullerton Police Department manual excerpts are in evidence, but it's not to be taken as a statement of the law," District Attorney Rackauckas told the jury in his rebuttal. Rackauckas argued that Ramos had a duty to stop the altercation when it appeared Thomas was being harmed.
But Ramos' defense attorney John Barnett said in his closing argument that his client did nothing criminally negligent during the altercation.
"The prosecutor said Ramos is responsible for [the altercation], and he's calling other police in and creating a danger," said Barnett.
Barnett said based on the audio of the incident, it's the officers involved in the struggle that are in danger.
"Listen to them during the fight," Barnett told jurors. "You don't think they thought they were in the fight of their lives? Do you think that they called a bunch of cops there, every cop in the city, to come watch them and help them beat down some homeless person. Do you think that's what happened?"
Use of force: A 'classic issue'
Levenson said the use of force is "a classic issue."
"Officers are allowed by policy to use force under certain conditions, and they're even allowed to escalate force and at some point they're supposed to prevent the harm," Levenson said. "For those jurors who are inclined to favor the prosecution, they're going to point to it and say 'look, he should have stopped the force.' In my experience, many more jurors look to it and say 'gee, we do allow officers to use force.' They have to make split-second decisions, even the manual recognizes that.'"
As he concluded his rebuttal Thursday, Rackauckas told the jury that Ramos and Cicinelli exceeded their authority as police officers in the altercation with Thomas.
"We have great law enforcement in Orange County," Rackauckas said. "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 also said Cicinelli "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."
But Cicinelli defense attorney Michael Schwartz said Cicinelli's actions were consistent with his police training.
Levenson said proving excessive use of force to a jury is an uphill battle for prosecutors.
"These are the toughest types of cases to prosecute because jurors do defer to law enforcement all the time," Levenson said. "You don't want them to hesitate in doing their jobs. Having said that, however, in this case you have extenuating circumstances, some of which are caught on tape, where you have an individual who is pleading for help. "
Kevin Meehan, an associate professor of criminal justice at Cal State University, Fullerton, said Rackauckas referenced the "bad apple theory" as he ended his appeal to the jury.
"I do believe that to be true. Most officers that I know have the right intentions. They go into law enforcement because they want to help people," said Meehan, who teaches a graduate course on administration of justice and courses on corrections. "I have a lot of students that are officers, and they're here because they want to become better officers."
He said instances of excessive force by officers are "aberrations."
"I don't think that these two officers are reflective of the majority of the people at the Fullerton Police Department and certainly not the majority of people in law enforcement," Meehan said.
Emotion versus evidence
In his closing argument, Cicinelli's attorney Schwartz urged the jury to "analyze this case without emotion."
"The prosecutors played the video, said listen to [Thomas'] scream, wrench your heart and convict somebody,” Schwartz said.
"We don't convict people just because it was a tragedy to ease our guilty conscience,” Schwartz said.
He said Rackauckas played on the emotions rather than evidence. "That's not fair. That's not just. That goes against everything the system stands for."
Checking their emotions may be easier said then done in a case that has lasted two and a half years, Levenson said.
"I don't think emotion completely disappears no matter what," she said. "But what will happen is that the jurors will tend to try to compartmentalize it. And we saw that happen in the Rodney King case where there was a lot of emotion, but the jurors, who in Simi Valley acquitted the officers, set it aside and then almost objectified what they saw on the tape."
"It is a matter of waiting and we could be waiting quite a period of time," Levenson said. "You don't want jurors to rush a decision. It's too important to everyone."