Lawrence Rosenthal: Charges in Kelly Thomas case defensible

September 22, 2011
By LAWRENCE ROSENTHAL/Law professor, Chapman University School of Law
Orange County Register

There are few things more likely to give a prosecutor heartburn than charging a police officer with a crime, especially one involving the use of excessive force against a suspect.

Prosecutors work with the police every day. Charging an officer can poison relationships that are critical to effective law enforcement. And, these cases are hard to win.

Allegations of excessive force are usually made by not very nice people in not very nice parts of town. Juries are reluctant to take their word against that of a police officer. Also, excessive force cases often involve split-second judgments by officers who justifiably fear for their safety. Most jurors think that even a clear mistake should not turn a cop into a criminal. Most of us occasionally make mistakes at work, but we don't go to jail for them. In a generally conservative area like Orange County, juries are likely to be particularly supportive of police.
Why, then has Orange County District Attorney Tony Rackauckas brought felony charges against two Fullerton officers arising from the death of Kelly Thomas, a 37-year-old homeless man who suffered from mental illness, who the officers reasonably suspected was in possession of stolen property, and who was not following police instructions when placed in custody?

First, there is unusually good evidence about what happened. There were a number of surveillance cameras in the area, and a number of bystanders.
Some of them took cellphone videos. This evidence seems to show a deliberate decision to administer a severe beating to an obviously impaired man who posed little threat.

Second, the physical evidence is deeply troubling. It indicates that Thomas died from what seems to have been a savage and prolonged beating.
Third, it appears that the officers made false or misleading statements about what happened. If the officers lied, a jury is more likely to convict. As I often argued to juries when I was a prosecutor – "Ladies and gentlemen, innocent people don't lie."

If the case is so strong, why was Officer Manuel Ramos only charged with second degree murder, and Corporal Jay Cicinelli only charged with voluntary manslaughter? Why were the other officers at the scene not charged at all?

Prosecutors have little hope of convicting unless they show appropriate sensitivity to the tough job facing the police. One of the defense lawyers has given us a preview of the picture he will paint for the jury, saying: "Police officers who risk their lives daily ... now have to be concerned with being charged in the courtroom for simply performing their duties." One of the ways a prosecution can go awry is when the case is overcharged – when the prosecutor files more serious charges than have fair support in the evidence. Juries can lose faith in prosecutors who seem unfairly aggressive.

In this case, first degree murder would be hard to prove beyond a reasonable doubt. First degree murder requires proof that the officers intentionally set out to assassinate Thomas. It seems more likely, however, that they just lost control. That is second degree murder, which requires only conscious disregard for the victim's life. If the officer was merely negligent, he is guilty of involuntary manslaughter. These are serious felony charges, but they avoid the risk that the jury will think that the prosecutors are overly zealous.

As for the officers who were not charged, it is not a crime to fail to intervene when you see someone else committing a crime, even if you are a police officer. It is also not a crime for an officer to use force to help a colleague subdue a suspect even if the officer does not know how the confrontation started. There may be a reasonable doubt about whether the other officers on the scene realized that Thomas had done little to provoke the officers who were charged and posed little threat to them. If, on the other hand, the other officers lied about what they saw to protect their colleagues, they could be guilty as accessories after the fact. They also could lose their jobs, even if they are never charged criminally. One of the things that makes excessive force cases difficult to prove is the unwillingness of officers to testify against colleagues. We need to do more to stop this code of silence.

So far, the District Attorney's charging decisions seem defensible. The public, however, should demand that all officers who made false reports are punished. I have long believed that prosecutors and police departments should show leniency to officers who admit that they made a mistake, but treat officers who make a deliberate decision to lie or cover up severely. We can all sympathize with split-second error in judgment; but we should never tolerate a calculated coverup. Even more important, if officers know that to keep their jobs, everyone on the force has tell the truth, even about their mistakes, they are more likely to avoid conduct that can get them in trouble in the first place. In the end, that is what we all want out of tragedies like the death of Kelly Thomas.

The author is a Professor of Law at Chapman University School of Law. He has both prosecuted and defended police officers accused of misconduct.