Reluctant Juries Often Make Prosecuting Police Difficult

A DA's Decision
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Thursday, Sept. 22, 2011 | Orange County District Attorney Tony Rackauckas ended weeks of tension Thursday by filing murder and manslaughter charges against two Fullerton police officers for their roles in the beating death of mentally ill transient Kelly Thomas.

But the steps ahead, according to California legal history, may be Rackauckas’ greatest challenge. California juries traditionally are reluctant to convict police officers when the charges involve variations of excessive use of force.

The evidence presented by Rackauckas seems overwhelming. Video from the Fullerton bus depot on July 5 shows Officer Manuel Anthony Ramos, 37, standing over Thomas while putting on a pair of latex gloves, then clenching his fingers into a fist and holding them in front of Thomas’ face. At the same time, Rackaukas said, a recorder worn by Ramos captured him telling Thomas that “I will f*** you up.”

Not long after uttering those words, Rackauckas said, Ramos began a brutal beating of the 37-year-old Thomas that lasted nearly 10 minutes while the schizophrenic man begged for mercy. Cpl. Jay Patrick Cicinelli, 39, arrived while Ramos was beating Thomas. Cicinelli shot Thomas several times with a stun gun and then repeatedly hit him in the head with the weapon, according to Rackauckas.

Four other officers arrived at the scene but did nothing to stop the beating, Rackauckas said. Those officers were not charged with a crime.

Thomas died of his injuries on July 10. The coroner ruled the death a homicide. Rackauckas said Thomas essentially died of asphyxiation caused by excessive pressure applied by the officers to his chest and repeated blows to his head. Blood from the head injuries entered his lungs, according to hospital records released earlier by the family.

“The biggest shame about this case is it didn’t have to happen,” Rackauckas said during a Wednesday news conference at his office in Santa Ana. “This is not ‘protecting’ and ‘serving.’ “

But as if to emphasize the challenge presented by all cases of wrongful use of force by on-duty officers, John Barnett, attorney for Ramos, said the officer is not guilty of any of the charges and “just did what any police officer is required to do” to get a “non-compliant” suspect under control.

“It’s really tragic that a police officer doing his job is subject to life imprisonment on this encounter,” Barnett said during an interview.

Rackauckas charged Ramos with second-degree murder and involuntary manslaughter.

He charged the second officer, Cicinelli, 39, with involuntary manslaughter and felony use of excessive force. Cincinelli pleaded not guilty Wednesday and was released on $25,000 bail. His pretrial hearing is set for Nov. 4.

Ramos is in Orange County jail with bail set at $1 million. His arraignment is scheduled for  Monday because Barnett, his attorney was out of town Wednesday.

This is the first time in 13 years as DA that Rackauckas has prosecuted a police officer for murder in the line of duty.

Prosecuting police officers for violence while on duty isn’t easy, said Alan Yochelson, the assistant head deputy in the Los Angeles County District Attorney’s office who was part of the team that prosecuted four Los Angeles police officers for the March 3, 1991, beating of black motorist Rodney King. That case too gained international attention because, unknown to the officers, a neighbor made a video and released it to a television station.

The officers’ acquittals touched off six days of rioting in which at least 50 people died, and the National Guard was called in to help restore calm.

After the acquittals, federal officials indicted the four officers on charges of civil rights violations, including failure to protect King from harm. In April 1993, two of the officers, Sgt. Stacey Koon and Officer Lawrence Powell, were convicted. The two others were again acquitted.

“When it involves the use of force in the line of duty, I’ve found jurors are very reluctant to second-guess a police officer,” Yochelson said Wednesday. He emphasized he was not speaking about the Kelly Thomas case specifically but about cases in general that involve allegations of excessive force.

He noted that state law allows officers to use “reasonable force,” but “jurors also are told the definition of reasonableness is from the point of view of a police officer. That’s a high border to overcome.”

He said police officers generally are well-regarded in the community and their role as protecting the public can be difficult to overcome in front of a jury.

Fullerton’s acting police chief, Kevin Hamilton, declared in a written statement that no decision can be made on what, if any, action the city will take against any of the officers until separate investigations are completed by the FBI’s civil rights department and by Michael Gennaco, who was hired by the city after the Thomas beating death to investigate the workings of the department.

Police Chief Michael Sellers went on medical leave in August in the middle of the controversy avfter he was heavily criticized by supporters of the Thomas family for being slow to take officers involved in the Thomas beating off duty. It was three weeks after the beating that the officers were put on administrative leave.

Sellers’ predecessor, Patrick McKinley, now a member of the City Council, said in a written statement that he hired the two officers and “cannot comprehend how they drifted so far from their training.”

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