Mickadeit: Officer’s threat a key to Kelly Thomas case

11 Dec
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This undated photo provided by Ron Thomas shows his son, Kelly Thomas.

Use-of-force expert John A. Wilson Jr. concluded his testimony Tuesday afternoon in theKelly Thomas trial. A good deal of time was spent discussing Officer Manuel Ramos’s infamous threat to Thomas, and it appears that how jurors perceive this threat could be pivotal to murder charge against him.

Wilson, the prosecution’s witness, said Ramos put Thomas on the defensive from the moment he walked up to him swinging his baton while asking him questions. And when Ramos snapped on his gloves and told Thomas, “See these fists? They’re getting ready to (expletive) you up,” it put Thomas in legitimate fear for his safety, Wilson said, because the gloves implied that some type of altercation would commence in which bodily fluids would be released.

Why does Ramos’s statement matter? Because to prove murder – as opposed to manslaughter – the prosecution must show malice, and that starts with Ramos committing some act that sets in motion events that lead to Thomas’s death.

The prosecution will argue that the threat by Ramos was such an act. The threat in this case was excessive and unlawful for the property crimes for which Thomas was suspected, the prosecution contends. It argues that any person in that situation would have been put in reasonable fear of great bodily injury and would have a right to stand up and move away to defend himself.

I do think it significant that Ramos is never heard telling Thomas that he intends to arrest him or take him into custody. If he had done so, it would be easier for the jury to believe that was Ramos’s only intent in laying hands on Thomas.

But Ramos never says this. He appears to touch Thomas on the shoulder and Thomas stands up. And when Thomas moves away, the batons come out and the beating commences. Therefore, the D.A. will argue, the threat by Ramos set into motion a chain of events that ended in a murder.

How did the defense counter this?

Wilson said Ramos’s use of the f-word in the threat was unprofessional and unnecessary but he did not seem to be saying that any kind of threat of physical violence was wrong. In fact, under cross examination by defense attorney John Barnett, Wilson conceded that if Ramos knew from prior encounters with Thomas that a threat would get him to comply, then “it would be appropriate to consider” using a threat again.

On redirect by District Attorney Tony Rackauckas, Wilson called the threat “non-productive” and “actually dangerous” but it wasn’t clear whether he was only referring to the use of the f-word or the use of a threat in general.

How this testimony is characterized in closing arguments by each side will be interesting. If the defense establishes that the prosecution’s own witness believes that it was merely the tone of the threat – use of the f-word – that was wrong, is that enough for a jury to convict on?

Despite Wilson’s lengthy time on the stand, there are still several things we don’t know yet about use of force. He is a former FBI training expert and he gave us a great lesson on what he believes a reasonable officer should have done and the standards that he believes are taught – or should be taught – around the U.S.

And while he reviewed the Fullerton training manual and said he saw in it many of the principles he taught at the FBI, he never critiqued Ramos and co-defendant Jay Cicinelli in the context of how they were actually trained. We don’t know yet what the Fullerton’s use-of-force standards were in 2011. If the defense can show what Wilson espouses as the law enforcement standard is not what Ramos and Cicinelli were taught or the standard to which they were held, that will take some bite out of his testimony.

Of course, even if the jury is not convinced that Ramos’s threat makes him culpable, there’s still the matter of whether Ramos was responsible once the struggle on the ground began and Thomas said he couldn’t breathe.

Ramos, as the first officer to contact Thomas, should have been in charge at the scene, Wilson testified, but Fullerton’s protocol was not the norm. There, if a sergeant arrives, he’s in charge. The video shows a sergeant had arrived and heard Thomas say he couldn’t breathe. The defense: if the sergeant didn’t tell his men to ease up, why isn’t he charged? And why should they be liable?



If you are charged with a crime, contact an experienced Orange County Bail Bondsman to assist you in any bail situation.


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