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Kelly Thomas trial: Taser had no effect on 'combative' Thomas, defense says (video)

The Orange County District Attorney said Monday that the behavior of former Fullerton police officers was "unwarranted and unreasonable" in the violent beating of Kelly Thomas, a mentally ill homeless man who died days after the confrontation. The prosecutor's remarks came as part of his opening argument on the first day of the trial against Manuel Ramos and Jay Cicinelli. In its opening argument, the defense challenged the prosecutor's contention that Thomas was not a threat the night of the altercation, saying Thomas made "bad, violent choices."


4:45 p.m.: Cameras pulled from court for not providing feed to OC DA office

Media pool cameras were removed Monday afternoon from the trial of two former Fullerton police officers charged in the death of Kelly Thomas. Pool cameras recorded opening statements by Orange County District Attorney Tony Rackauckas and defense attorney John Barnett but were removed before the opening statement from defense attorney Michael Schwartz.

"They were removed because the pool crew would not provide the live feed to the Orange County District Attorney's office," said Rick Terrell, who is the executive director of the Radio & Television News Association of Southern California and was the camera pool  liaison with the court for the trial. "The video and live feed is the property of the pool and the stations that belong to that pool."

Terrell said the California rules governing use of cameras in courtroom say nothing about providing the video to any of the parties involved in the case. 

"Providing the video would be equivalent to a violation of journalistic ethics,"  Terrell said. "It would be akin to the DA's office asking for reporter's courtroom notes."

Judge William Froeberg, overseeing the trial of Manuel Ramos and Jay Cicinelli, approved a media request from the District Attorney's office that includes access to the video feed, said  Orange County Superior Court spokeswoman Gwen Vieau.

"Until the media supply the requested material there will be no cameras – still or video – allowed in the courtroom," Vieau said.

The public information office at the Orange County District Attorney's office did not respond to requests for comment. 

Froeberg previously ruled that TV pool camera coverage would be allowed for opening and closing statements, the verdict and sentencing.

Ramos is charged with second degree murder and involuntary manslaughter, and Cicineill faces charges of involuntary manslaughter and excessive use of force. 

3:29 p.m.: Defense: Taser had no effect on 'combative' Thomas

Defense attorney Michael Schwartz offered the last round of opening statements at the trial of two former Fullerton police officers charged in the death of Kelly Thomas.

Schwartz represents Jay Cicinelli, who has been charged with involuntary manslaughter and use of excessive force.

Schwartz challenged a remark from Orange County District Attorney Tony Rackauckas that characterized the altercation between Thomas and police officers on the night of July 5, 2001, as a “deadly beating.”

"In his opening statement Mr. Rackuackas talked about the deadly beating," Schwartz said. "The evidence will show there was no deadly beating […] The evidence will clearly show that no crime was committed by Jay Cicinelli on July 5, 2011 – none." 

Schwartz showed a security video of the confrontation on a large screen in the courtroom as he described the actions of his client during the confrontation.

At one point Cicinelli is seen on the video using a Taser as a way to control Thomas. 

Rackauckas said in his opening statement that Cicinelli struck Thomas several times with a hard plastic Taser.

But Schwartz said Cicinelli did everything consistent with his training, including "kneeing Thomas to distract him."

"The evidence will show that my client encountered a combative, uncontrollable suspect who grabbed Jay Cicinelli's weapon," Schwartz told the jury, stopping the video at certain points during the altercation between Thomas, Cicinelli and other officers.

Schwartz said his client tried to use the Taser darts, but they did not work. 

He said the video shows Thomas kicked at Cicinelli and grabbed the Taser. He said Cicinelli announced "Darts" to indicate the darts were deployed, but they had no effect on Thomas. 

"So he tried to close the circuit and make direct contact with the skin to use the Taser, but that didn't work," Schwartz said.

Schwartz told the jury that Thomas grabbed at Cicinelli's weapon and "consistent with his training he couldn't let that happen."

"That is not my client striking Thomas with the Taser, that is my client trying to keep the Taser and the Taser wires away from the suspect (Thomas)," Schwartz said. "What you see my client doing is making two short jabs at the suspect to try and keep the Taser away from him."

He said Jay Cicinelli only had seconds to make a decision, and he did not have the option to put the Taser down.

Schwartz said Cicinelli's actions were "reasonable under the circumstances."  

Schwartz next addressed the cause of Kelly Thomas' death. 

The attorney citied medical testimony from Dr. Michael Lekawa of UC Irvine  that there was no traumatic injury or brain injury to account for Kelly Thomas' condition. "The injuries did not cause death, they weren't lethal," Schwartz said.

Schwartz told the jury that Thomas autopsy photographs "will make the injuries look worse than they actually were."

Schwartz said Dr. Aruna Singhania, Orange County Sheriff's Department Coroner, who conducted the autopsy on Thomas, did not know the cause of death following her autopsy in July 2011 and after a microscopic exam and viewing a video of the incident.

But Schwartz said, "After a  visit by D.A. Tony Rackuackas, she determined the cause of death to be from chest compression which ended Thomas' breathing.”

"Fullerton Fire Department Paramedic John Zillgitt will testify that Thomas had a pulse,  was breathing and a "viable patient" when he arrived on the scene," Schwartz said. He also said Fullerton Fire Department Captain Ron Stancyk will testify Thomas was a "viable patient when he arrived."

"This proves the compression theory is wrong," Schwartz said, alluding to the force his client is alleged to have placed on Thomas' chest.

"The cause of death was not compression, not head trauma," said Schwartz. "The factor in death was an enlarged heart that was unable to pump/profuse properly, causing poor blood flow and a lack of oxygen to the brain."

Schwartz said one of his medical expert will testify that Kelly Thomas had a drug-induced heart disease.

“Kelly Thomas died of cardiac arrest from over-exerting an already diseased heart," Schwartz added. "The struggle lasted five full minutes or more and his heart couldn't take it."

Schwartz told the jury other officers at the scene will testify that Thomas was still breathing and moving when "my client and (co-defendant Manuel) Ramos were no longer on him."

Schwartz again played the video of the incident, stopping it at various points to show the jury where Cicinelli and Ramos were not on Thomas during some moments of the altercation, where he said Thomas was still breathing.

Schwartz said he'll offer testimony from two Fullerton police officers, Sgt. Tony Rios and Cpl. Steve Rubio, who trained Cicinelli on the use of improvised weapons and improvised tactics. He said the officers will testify Cicinelli's use of force was consistent with his training.

"This was a tragedy yes, a crime no," Schwartz told the jury as he wrapped up his opening statement. "Sometimes tragedies happen in this world, and they're not always crimes."

1:06 p.m.: Thomas made 'bad, violent choices,' defense says

During the defense portion of Monday’s opening arguments, an attorney for one former officer on trial for the beating death of Kelly Thomas challenged the prosecution’s contention that Thomas was not a threat the night of the altercation.

"This case is not about a harmless, homeless mentally ill guy,” defense attorney John Barnett, told jurors. "The evidence is going to show that Kelly Thomas made choices and he made bad, violent choices."

Barnett, representing former Fullerton police officer Manuel Ramos, said Thomas took numerous drugs, including "amphetamines in 10th grade" that led to long-term impairment and contributed to his behavior the night of July 5, 2011.

Ramos is charged with second degree murder and involuntary manslaughter in connection with Thomas’ death.

Barnett at one point faced the jury holding a metal fireplace poker and described a 1995 incident in which Thomas struck his grandfather with a poker. 

"He  later pled guilty to assault with a deadly weapon," Barnett said. "This was a spontaneous psychotic episode, which experts will tell you is consistent with an individual who has used amphetamines."

Barnett used a projection screen to show the jury a timeline of what he said was a pattern of Kelly Thomas' violent behavior beginning in the mid-1990s up to the alteration with police officers outside the Fullerton Transportation Center.

"His own mother had to get a restraining order to keep him away," Barnett said, pointing to a December 2010 incident in which Thomas "put his hands around his mother's neck."

Barnett said what happened the night of the altercation is part of the same pattern of behavior.

Barnett also challenged the allegations that Ramos was responsible for Thomas’ death.

"Not only did he (Ramos) not murder Thomas, the evidence will show he did not even kill Kelly Thomas," Barnett said. "Kelly Thomas and Manuel Ramos had several contacts, just as he did with numerous homeless people during his shifts. "The evidence will show Manuel Ramos was a good cop."

Barnett said Manuel Ramos talked to Thomas without any problems during their previous interactions.

"In all the prior events, prior to July 5, Manuel Ramos' verbal strategies with Thomas had worked," Barnett said, as he showed a screen image depicting a chronology of seven previous contacts between Thomas and Ramos. 

One of those incidents was in January 2009 when, Barnett said, Ramos responded to a call from a Starbuck's about Thomas. Thomas was allegedly in a bathroom naked and threatening people. Barnett said Ramos' verbal strategy with Thomas worked that day and on other occasions in which they had contacts prior to July 5, 2011.

Barnett cited another incident in July 2009, in which Ramos showed his baton to Thomas but only used "verbal actions" to deal with Thomas.

In a May 2010 incident at Thomas' grandmother's house, Barnett said Ramos asked Kelly to leave, saying "Please leave, OK?"

"That's your murderer, that's your bully, saying please," Barnett said.

On the night of the altercation, Barnett said Ramos was “looking to send him (Thomas) home … But Kelly Thomas' responses to Ramos on this night show he's not going to cooperate."

Barnett quoted from a transcript describing the conversation between Thomas and Ramos at the Fullerton Transportation Center, in which Kelly Thomas said he couldn't remember his name.

"They (the officers) can't just let him go. They're giving him every benefit of the doubt," Barnett said. "Officer Ramos is not intimidating, not trying to intimidate Kelly Thomas, and he puts his baton away during the conversation with Thomas."

While Kelly Thomas is seated, and Ramos is talking to him, another homeless man walks by, and Ramos has a brief verbal exchange with that man, whom he recognized, Barnett said. 

"‘Glad to see you're doing all right,’ Ramos tells the man," Barnett said. "Here's your predator cop."

During his opening statement, Orange County District Attorney Tony Rackauckus cited a portion of the transcript in which Ramos told Thomas, "Now you see my fists, they're getting ready to f**k you up if you don't cooperate."

Barnett said those words were not much different than other verbal interactions Ramos had had with Thomas in the past, which did not lead to physical violence.

But this incident was different.

"He  (Thomas) said 'start punching dude' to Ramos," Barnett said. "What officer Ramos could not predict […] for some reason he (Thomas) would act violent and act unpredictably," Barnett said, again showing the timeline of what he called a pattern of Kelly Thomas' violent behavior. 

Barnett said Ramos and his partner could not control Thomas and they sent out "what's called a Code 3 in which they need all officers to help them." 

"If they had control of Kelly Thomas, they wouldn't be calling the whole police department to help them deal with some homeless, harmless guy," Barnett said.

Barnett concluded his opening statement, saying "the evidence will show he (Ramos) had the right to do everything he did."

— Ed Joyce

Updated 11:35 a.m.: Cops' actions 'crossed the boundaries,' DA says

Opening arguments are underway in the high-profile trial of two former Fullerton police officers charged in the beating death of a mentally ill homeless man.

"This is an important case, and you'll be speaking as the voice and conscience of this community," Orange County District Attorney Tony Rackauckas told the eight-woman, four-man jury who will decide the fates of Manuel Ramos and Jay Cicinelli in connection with July 2011 death of Kelly Thomas.

Ramos is charged with second-degree murder and involuntary manslaughter, and Cicinelli faces counts of involuntary manslaughter and use of excessive force.

"Their conduct this night (July 5, 2011) crossed the boundaries of police work,” Rackauckas said, noting the former officers were fully-trained and in good shape compared to Thomas, whom Rackauckas described as frail and malnourished.

"Kelly Thomas posed no threat of harm to officers or to others,” the prosecutor said. “His behavior was non-threatening."

Rackauckas called the defendants’ actions the night of the beating "unwarranted and unreasonable." 

He told the jury that Cicinelli struck Thomas with heavy blows to his face with a hard-plastic Taser. He said Cicinelli then pressed Thomas into the pavement. 

Rackauckas then proceeded to tell the jury about various encounters Ramos had had with Thomas before the night of the beating.

"The evidence will show that officer Ramos behavior fell well below the level of reasonableness," Rackauckas said. "We don't know the actual amount of time that Ramos and Thomas crossed paths, but their previous interactions were numerous."

Rackauckas said at one of their previous interactions in July 2009, Ramos showed Thomas a baton and asked, " ‘Have you ever been hit with one of these things?’ Kelly responded ‘yeah.’ Ramos said, 'How did it feel?' Thomas: ‘It hurt.’"

Then, Rackaukas told the jury about the night of July 5, 2011,  and the interaction between Ramos and former Fullerton police officer Joe Wolfe and Thomas at the Fullerton Transportation Center.

The DA started quoting from a transcript of the incident, in which he described the "banter" between Ramos and Thomas prior to the physical altercation and showed pictures taken from a security video posted on two large screens in the courtroom. 

Warning: The video below depicts graphic violence 

Security video shows Kelly Thomas' altercation with police

RELATED: Courtroom riveted by beating video

"Kelly is seated here on this little brick curb, and Ramos is standing next to him," Rackauckas said, as he quoted Thomas telling Ramos,  "Take me to jail dude. Can we just get it over, please, please please – can we just go please?”

Rackauckas proceeded to show the jury more pictures as he described a change in Ramos' behavior toward Thomas.

"He began to show a menacing attitude," Rackauckas said and then read again from the transcript:

"There's a very short time now before Ramos starts to put his hands on Kelly," the prosecutor said. 

Rackauckas took a police baton in his hand, telling the jury both Wolfe and Ramos used their batons to strike Thomas.

"While he was in this terrible state of panic, they told him to relax his hands," Rackauckas said. "Kelly started saying over and over again, ‘I'm sorry,’ and began calling over and over for his dad. Then corporal Cicinelli arrived and started tasing Thomas. Kelly was being held down, tased and body-punched."

Then Rackauckas said Cicinelli started using his Taser to strike blows to Thomas' face, as the prosecutor showed a still picture showing Cicinelli on Thomas' chest and Ramos holding Thomas' legs.

"Other officers continued to arrive throughout the ordeal, here you can see six officers," Rackauckas said. "At no time during this entire ordeal did Ramos say to the other officers that Kelly Thomas had enough, as they continued to hog-tie Thomas.”

Rackauckas quotes Thomas again from the transcript, "Dad, they're killing me dad, they're killing me … daddy." 

As Rackauckas was repeating Thomas's last words to the jury,  in the courtroom, Kelly Thomas' father, Ron Thomas, looked down briefly.

Rackaukas also showed a picture of the scene after Thomas was taken to the hospital. Several courtroom spectators gasped at the photo depicting a pool of blood on the cement. 

"He died of a lack of oxygen supplied to the brain, due to the pressure on his chest and blood in his nose," Rackauckas said. "There was no evidence of drugs or alcohol in Thomas' system." He said prosecutors will have testimony from doctors about the cause of death. 

"Defendant Ramos is guilty of the murder of Kelly Thomas, and defendant Cicinelli is guilty of manslaughter," Rackauckas said.

At that, Rackauckas concluded his opening statement for the prosecution. 

— Ed Joyce

Updated 10:12 a.m.: Opening statements begin

Prosecutors began their opening statement on Monday in the trial of two ex-Fullerton police officers charged in the death of Kelly Thomas, a mentally ill homeless man.

The courtroom was full as Orange County District Attorney Tony Rackauckus addressed the eight women and four men of the jury, KPCC's Ed Joyce reports. 

Tweet: Victim's father in attendance, all seats taken

Tweet: Jurors receive instructions

Judge William Froeberg told members of the media they would not be allowed to send live tweets from the courtroom, but we'll bring you updates as they become available.

— KPCC staff

6:00 a.m.: 1st day of trial for ex-Fullerton cops charged in death of homeless man

The trial for two former Fullerton Police Department officers begins Monday in a Santa Ana courtroom.  The two face charges in connection with the beating of Kelly Thomas, 37, a mentally ill homeless man.

Manuel Ramos is charged with second-degree murder and involuntary manslaughter, and Jay Cicinelli is charged with involuntary manslaughter and excessive force in connection with the July 5, 2011, beating of Thomas.  

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.

RELATEDTrial set for ex-Fullerton cops charged in Kelly Thomas beating death

A video of the incident shows officers beating Thomas while he was on the ground. Thomas was a diagnosed schizophrenic and had had numerous runs-in with police.

The Orange County District Attorney said the trial is expected to last six weeks with a two-week break for the holidays. 

A third former officer, Joe Wolfe, has also been charged with involuntary manslaughter and excessive force. He is due back in court Jan. 24th in advance of his own expected trial. 

In a videotape of the altercation, Wolfe is seen pinning Kelly Thomas on the ground. Thomas is heard telling officers he could not breathe.  

Police went to the Fullerton Transportation Center in response to a 911 call from a nearby nightclub that someone was trying to break into cars outside the club. Investigators have determined Thomas was not trying to break into cars.

Wolfe and Ramos confronted Thomas outside the transit center. 

While Wolfe went through a backpack Thomas had with him, Ramos and Thomas engaged in a lengthy, often sarcastic and prickly, exchange. More officers, including Cicinelli, joined Ramos and Wolfe, and a violent struggle ensued. 

An autopsy showed that Thomas suffered broken bones in his face and compression injuries to his thorax, which made it hard for him to breathe.  The Orange County Coroner determined he choked to death on his own blood, and the cause of death was listed as asphyxia. 

Thomas was a fixture on the streets of Fullerton and had about 90 documented encounters with police dating to 1990.

— Ed Joyce

This story has been updated.

A previous version of this story misidentified defense attorney John Barnett. The text has been corrected. KPCC regrets the error.