Over in the twittersphere, Mike Riggs, a reporter with Reason magazine is shocked that a jury came back yesterday with a “not guilty” verdict on charges that two Fullerton, California police officers were criminally responsible for the death of Kelly Thomas.
@PaladinVT03 No lawyer is surprised that murderers got off? Or no lawyer is surprised that two cops got away w/ accidentally killing a bum?
— Mike Riggs (@MikeRiggs) January 14, 2014
The Bottom Line: Juries Can Do Anything
The bottom line is that juries can do anything. That’s why so many close cases end in plea.
Kelly Thomas died days after being beaten by Fullerton city police officers on July 5, 2011. Initially, the case drew little attention until footage uploaded to Youtube of the beating, and further graphic video and photographs of Thomas in the hospital made their way onto social media.
The full video is 33 minutes long:
Thomas suffered from schizophrenia, and was homeless at the time of his death.
For about the first 15 minutes of the video, police are merely investigating a homeless person for what appears to be vagrancy. They evidently don’t believe he is a major threat to themselves or others since they walk away from time to time, leaving him unattended.
At some point, Fullerton Officer Manuel Ramos escalates the situation. He starts cursing at Kelly Thomas, almost encouraging him to run, ordering him to put his feet out in front of him, and then saying: “See my fist? It’s getting ready to f*** you up.”
At that point the beating commences, with Kelly Thomas saying repeatedly “I’m sorry, dude. I’m sorry.” It is not clear from the whether Thomas is complying with the order to put his hands behind his back, or whether he is resisting. In any case, over the next 7 minutes, as more police officers arrive, Thomas is repeatedly punched, kicked and tased.
The public outcry resulted in the resignation of Fullerton’s police chief, the recall of three Fullerton city council members in June 2012 and the departure of the mayor.
It is horrific, and didn’t need to happen. The officers should’ve been summarily fired, and the entire force re-trained. The outrage in Fullerton in 2011 and 2012 was palpable:
But Is it Criminal Homicide?
Manuel Ramos was facing second-degree murder and involuntary manslaughter charges, and Jay Cicinelli was charged with involuntary manslaughter and excessive use of force under the color of authority.
An Orange County jury found the two not guilty of those charges. Does that mean they would’ve found them not guilty of all possible charges – for instance, a felony assault charge? Maybe, but maybe not. Cicinelli was charged with excessive use of force. But Ramos didn’t face any assault charge.
While no one can reconstruct the jury deliberations except those who served on the jury, the issue likely came down to whether Ramos, clearly the aggressor of the two officers, either killed Kelly Thomas with malice or killed Kelly Thomas by an unlawful act that does not amount to a felony and is not ordinarily
dangerous to life or by a culpably negligent act or omission.
The easier charge to prove would be involuntary manslaughter because it requires no showing of malice, and because, at least in North Carolina, even a simple assault (slap to the head) would satisfy the third element. A mere accident that resulted in death would not satisfy the requirement for “culpable negligence.” Criminal negligence in North Carolina requires that the person commit an act with a carelessness or recklessness that shows a thoughtless disregard of the consequences or a heedless indifference to the safety and the rights of others.
Assuming the law is similar in California, the jury had to consider whether those acts by the officers really displayed a thoughtless disregard for Kelly Thomas. The video seems clear that officers behaved badly, but the problem becomes that those of us who were not at the trial, and did not listen to just the evidence presented to the jury, have a very skewed understanding of what information was in front of the jury when deliberations began.
A Jury Trial is Not Like Anything Else
First, as any criminal defense lawyer (or, for that matter, prosecutor) will tell you, juries are unpredictable. They can render verdicts that seem completely bizarre to those who have been sitting in the courtroom. This is especially true when the public thinks it knows what’s been presented to a jury, and then, based on its own understanding of the case from news reports, can’t fathom why the jury renders what seems to be a bizarre verdict.
Juries tend not to understand what “beyond a reasonable doubt means.” As a fellow lawyer likes to say, juries like to think of themselves as truth detectors, figuring out who may be lying to them on the stand. As in all things, the likeability of the defendant, the lawyers, and the witnesses can matter a great deal. A likeable, affable officer is a compelling witness for the State.
A likeable, attractive defendant is a powerful witness for the defendant. Defendants with criminal records usually choose not to testify, not because they are guilty of this crime, but because the prosecutor will ask about prior convictions. Defendants who are inarticulate or unlikeable usually do not testify, not because they are guilty, but because they are likely to get tripped up in their testimony.
In the Kelly Thomas case, a police trainer with the Fullerton Police Department testified that the force used by Ramos and Cicinelli was consistent with the training they received as officers
That is powerful testimony, testimony that likely was taken seriously jurors. Who are jurors going to believe? Their lying eyes: A video, where much of the beating happens off screen or is obscured by trees? Or a police trainer who testifies to having reviewed the video multiple times, and who testifies that the beating, however horrific to the lay person, is consistent with an officer’s training and experience.
The prosecution had its own “use of force” expert, but it was an FBI agent. That agent testified that the conduct wasn’t consistent with good police procedure. But jurors may have put greater weight on the Fullerton police trainer, believing that, while Ramos and Cicinelli behaved badly and escalated the situation, they were operating according to the training they had been given, not ideal police training as dictated by the FBI.
In other words, the jury may have believed: we’re not going to convict two bad police officers of such serious charges when, in fact, the problem rests with the police department.
We can speculate about what thoughts were going through the jury’s mind. We can speculate about the discussions taking place in the jury room. The important point to remember is that juries take on a logic of their own.
Even though “jury nullification” is verboten, juries nullify all the time. Even though the evidence seems overwhelming on the television, they acquit. And even though the state seems to have done just enough, and no more, to send a matter to the jury for deliberation on a defendant’s Motion to Dismiss, juries convict on thin evidence all of the time.
Juries also tend be focused on the fact that, when they have otherwise “good people” as defendants, and former police officers certainly qualify as such, they are being asked to punish people with good careers, families, and no criminal records.
When that happens, they may be outraged at the conduct, and at the system that created and encouraged the conduct, but loathe to convict two human beings. They understand that they can’t bring back the victim. They only control the fate of the defendants.
This is an admirable quality about juries. In a system that lacks so much compassion and lacks so much reasonableness, a jury is at least a safeguard even though, when considering the matter from Kelly Thomas’ family’s point of view, there is no justice.