Crime & Justice

Kelly Thomas Trial: Defense experts says Thomas didn't die from chest compression

Defendant Jay Cicinelli confers with his attorney, Michael D. Schwartz, during a preliminary hearing in the death of Kelly Thomas in 2012. (File photo)
Defendant Jay Cicinelli confers with his attorney, Michael D. Schwartz, during a preliminary hearing in the death of Kelly Thomas in 2012. (File photo)
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Update: 6:10 p.m.: Orange County District Atty. Tony Rackauckas continued his cross-examination of emergency medical expert Dr. Gary Vilke, who has researched in-custody deaths for nearly 20 years.

Vilke said given his review of medical records, Thomas was breathing for seven minutes after paramedics arrived on the scene and that four medically trained professionals saw him breathing well enough not to intervene.

Vilke said he didn’t know what caused Thomas’ heart to stop later in the ambulance on the way to the hospital.

He said Thomas was in the ambulance for four minutes before going into cardiac arrest and needing CPR.  

Vilke said he has published a number of reviews and articles on so-called “mechanical compression.”

Medical examiner Dr. Aruna Singhania, who was contracted to perform the autopsy on Thomas, testified earlier in the trial 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.

Vilke said he gets paid $500 an hour for expert testimony and conducting research.

Following Vilke, Michael Kelly Levering took the witness stand.

He said he was eating dinner with his family at a restaurant near the Fullerton Transportation Center and was walking to get his car when he saw the struggle between Kelly Thomas and police.

Levering testified he was 20 to 30 feet away. He said he initially saw two officers wrestling with Thomas before two more officers arrived.

Levering said he saw no punches thrown and that the first two officers were trying to get Thomas' hands behind his back. He said one officer told Thomas to stop resisting, and he heard Thomas shout, "I'm sorry."

Levering said two additional officers then arrived on the scene and seemed "a little bit relaxed."  One of the first officers looked up and said, "We need help."

Levering said he didn't see a Taser, but he heard Taser "clicks" as he moved back to his car. He said at one point Thomas' body looked like it was "rigid and locked," like he was trying not to move. Levering said he heard what sounded like panic in Thomas' voice and saw one officer put a knee on Thomas but didn’t see any punches.

Defense attorney also called Fullerton police Sgt. Kevin Craig to testify.

Craig said on the day of the incident, he heard a dispatch call of a suspicious person trying car door handles near the bus depot in downtown Fullerton. He said he later heard three "Code 3s" from the depot cross the dispatch. A “Code 3” is police shorthand for officers’ needing assistance.

Craig said he saw four officers at the scene when he arrived. He said he saw Cicinelli strike Thomas twice with the Taser and Cicinelli said, "Help us" to the other officers. 

Craig said Thomas was yelling and fighting and he placed his knee on Thomas’ back to subdue him.

Thomas said at one point he heard Thomas say "I can't breathe" and that that didn’t give him concern that officers should get up because Thomas was fighting and able to talk. 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.


1:30 pm: Under cross-examination, emergency medicine expert Dr. Gary Vilke acknowledged that weight on a person's body can restrict breathing.

Vilke was responding to questions from Orange County District Atty. Tony Rackauckas. 

But he maintained that the change in Thomas' voice hear during a video tape of his altercation with police did not indicate his breathing was obstructed. 

Vilke said Thomas' voice becoming low and elongated could have been an indication of a "modification" of his airway. 

He said Thomas was still "ventilating" or moving air into and out of his lungs. 

Rackauckas asked Vilke whether it's possible somebody can be ventilating but still not getting enough oxygen. 

Vilke answered, "possibly yes."


11:37 a.m. Defense attorneys in the trial of two former Fullerton police officers accused in the death of a mentally ill, homeless man called to the witness stand Monday an emergency room physician who challenged the official cause of death determination for Kelly Thomas.

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. His death came five days after he was involved in a violent struggle with six police officers outside the Fullerton Transportation Center.

On the ninth day of trial for defendants Manuel Ramos and Jay Cicinelli, Dr. Gary Michael Vilke testified that blunt force trauma did not cause or contribute to Thomas’ death.  Ramos and Cicinelli have been charged with involuntary manslaughter, with Ramos facing an additional count of second-degree murder. Cicinelli has also been charged with using excessive force.

Vilke is a professor of clinical emergency medicine at UC San Diego and has researched in-custody deaths. Under questioning from defense attorney Michael Schwartz, Vilke said he reached his conclusion after reviewing Thomas’ medical and autopsy records and after watching a surveillance video tape of the July 5, 2011, altercation between Thomas and police.

“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.

Vilke also testified Thomas didn’t appear to have suffered a lack of oxygen during the struggle. Vilke said he was an expert in how air moves into and out of the lungs, or ventilation. He said after reviewing the video, he didn’t see any instance in which enough pressure was used to cause ventilation failure in Thomas.

Vilke said he found no evidence that Thomas suffered asphyxiation. He said he saw no indication of a broken nose and no blockage of airways.

As part of their case, prosecutors have pointed out that Thomas can be heard in the video yelling that he couldn't breathe. Vilke testified the fact Thomas was able to yell indicated he was breathing.

“’I can’t breathe,’ this is a common thing people will say,” Vilke said. “The fact that he is screaming and screaming and 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. He said records indicated Thomas lost about 150 cubic centimeters of blood, much less than what a person loses in donating blood. 

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.