Lawyers offer different views of video in Fullerton police trial

The trial of two Fullerton police officers accused of killing a mentally ill homeless man began in dramatic fashion Monday with the Orange County district attorney taking the rare step of arguing the case personally, at one point holding a wooden baton to recreate the deadly confrontation.

“The conduct of these two officers who are on trial here went far beyond what is acceptable in a free society,” Tony Rackauckas told jurors in a packed Santa Ana courtroom.

The death of Kelly Thomas in 2011 generated national attention, marking a rare instance in which police officers are being criminally charged for an on-duty fatality.

The centerpiece of the case is a grainy black and white video synched with audio from the officers’ recorders that captures the policemen hitting Thomas with a baton and the butt of a stun gun as he calls out for his father and repeatedly says, “I can’t breathe.”

But attorneys for former officers Manuel Ramos and Jay Cicinelli offered the jury a starkly different interpretation of what happened in those 33 minutes of video. The tape, said Ramos’ attorney John Barnett, actually shows that officers were dealing with a man so violent and out of control that they were forced to repeatedly call for backup.

The officers who struggled with Thomas that night never resorted to excessive force and, at one point, probably “weren’t using enough force,” Barnett argued.

“They wouldn’t be calling the whole Police Department to come and help us beat down some homeless, helpless, harmless guy,” Barnett said. “They’re losing the fight.”

Thomas’ family watched the proceedings, seated not far from the defendants’ own families. Members of the loosely organized group known as Kelly’s Army, which held protests demanding the officers’ prosecution, were in the audience wearing yellow ribbons. The trial is expected to last weeks.

Rackauckas, who is trying a criminal case for the first time since 1999, told jurors that Thomas tried but was unable to comply with officer’s commands.

As officers beat him, Rackauckas said, Thomas repeatedly said “that he was sorry, like a young boy begging for the punishment to stop.”

“His last words were, ‘Dad, they’re killing me. Dad, they’re killing me’ … you’ll hear his voice drop to this deep low drone as he just barely pushed out the words ‘Daddy, Daddy,’” Rackauckas said.

At one point, Thomas unsuccessfully tried to move away from Ramos and another policeman, but the officers dog-piled on the homeless man as he complained that he couldn’t breathe, Rackauckas said.

He clutched the wooden baton with both of his hands to re-create the scene for jurors.

The district attorney described Ramos as a bully who had repeated run-ins with Thomas, encounters that “fell well below the conduct that’s expected of police officers.” Ramos is charged with murder and involuntary manslaughter.

On one occasion in 2009, Ramos asked Thomas, “Have you ever been hit with one of these things?” apparently referring to his baton, Rackauckas said.

Barnett described Ramos as “a good cop,” “a patient cop” who managed during various encounters with Thomas to deal with the homeless man without resorting to violence.

Thomas used methamphetamines as a teenager and into adulthood, which made him prone to violent episodes, Barnett said. He described Thomas’ criminal history, including a 1995 incident in which he was convicted of assault for attacking his grandfather with a fireplace poker. He held up a fireplace poker as a prop while he spoke.

“This case is not about a homeless, helpless, harmless mentally ill guy, this case is about a man who made choices in his life, bad choices that led to his tragic death,” Barnett said.

The video tape will show officers simply couldn’t control Thomas and had to call for backup three different times, he said.

Cicinelli, who is charged with involuntary manslaughter and excessive use of force, arrived at the scene a few minutes after Ramos and another officer, Joseph Wolfe, began struggling with Thomas. Wolfe was charged with involuntary manslaughter and will be tried separately.

“Cicinelli decided to use his Taser as an impact weapon,” Rackauckas said, a photo of the bloodied yellow Taser projected behind him. “Cicinelli pummeled Kelly in the face without mercy; in his own words he said that he ‘smashed his face to hell.’”

While Barnett and Rackauckas used video stills and transcripts of the audio in their opening statements, Michael Schwartz, Cicinelli’s attorney, was the first to play parts of the video for the jury. At one point, he played a clip of the video and said it showed Thomas reaching for Cicinelli’s Taser.

“The evidence will show that what Jay Cicinelli encountered that night was a combative, uncontrollable subject who grabbed his weapon,” Schwartz said.

He said the audio of Thomas screaming is a sign, not that the officers were being excessive, but that he could breathe, contrary to what he was saying. Defense experts will testify that Thomas died not because his chest was compressed during the struggle, as a coroner’s report said, but because he had a bad heart due to his drug use, Schwartz said.

“There’s one conclusion you can come to,” he told the jury. “There was not a crime here. Sometimes tragedies happen in this world. They’re not always crimes. This case is a perfect example.”

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