Your eyes on California Government

SEPT. 12, 2011

By MARK CABANISS

It is getting close to decision time for Orange County District Attorney Tony Rackauckas in the Kelly Thomas case, in which six Fullerton police officers are accused of beating Thomas to death. While the investigation is still not completed and must be before any charges are brought, if any are brought, some of us are nervous, and increasingly disturbed at the way things are going, or not going, and at the unseemly deference given to the six police.

Unfortunately, in public pronouncements about the case, the Orange County DA’s office has sometimes given the impression that the office is on the side of the police, even though the police are the criminal suspects. This is unusual. Usually the DA is on the side of the people, and against the alleged criminals. Usual prosecutorial practice is to charge as many people as possible, with the most serious charges possible, in order to create the most leverage for the DA to get people to plead guilty and settle the case without a trial.

For example, in a case with multiple defendants, the DA might make a deal for one or more defendants to agree to testify against the other defendant(s) in exchange for reduced charges, or even outright immunity. And in every case the DA charges the most serious charges warranted by the facts, so that he can get the defendant to plead guilty to a less serious charge, in exchange for getting rid of the more serious charge. But in this case, the Kelly Thomas case, the DA has set a pattern of pre-emptive surrender, conceding points to the (possible) criminal defense even before any charges are filed, indeed, even before the investigation is complete.

For example, the Orange County DA said, HERE, that he had seen the unreleased surveillance tape, and had seen no evidence of intent to kill. Legally speaking, this is an inane non sequitur, equivalent to saying that he had seen the tape, and seen no evidence that anyone was left-handed, or 5-foot-6 tall — it simply has no legal significance to the case whatsoever. If the police are charged — and we have to wait to see what the investigation reveals about any criminal culpability — they might be charged with felony murder, under which a death is murder, even if unintentional, if it somehow is caused by the commission of any of several dangerous felonies.

For example, kidnappers might accidentally leave their hostage locked up too long in an airtight room, where he suffocates. That would be felony murder, even if the kidnappers were racing home out of concern for their hostage’s air supply, and were delayed too long by a flat tire. The bottom line is simple, and for the defendant, brutal: In felony murder, intent is irrelevant.

Meaningless Point

So why is the DA talking about some legally meaningless point? A cynic might say that it looks like an attempt to mislead the public, telling them that there is no evidence of intent to kill, so that the public won’t question a decision not to prosecute the police for murder.

But the police can absolutely be prosecuted for murder even if Kelly Thomas’ death was unintentional, as long as they can be prosecuted for an underlying dangerous felony, such as mayhem or torture. I for one am betting that the DA knows this, since his office prosecutes felony murder cases all the time.

Another non sequitur or red herring found in the story above is the phrase “excessive force,” as in, “We will prosecute if the police used excessive force.” But the phrase “excessive force” is not found in the California Penal Code. It is a phrase used in civil lawsuits, civil rights lawsuits alleging police brutality, to get money out of the taxpayers to compensate the victims and survivors of police brutality for their suffering.

In a criminal context, the only way that I can think of to use the phrase would be in an attempt to talk a murder charge down to an involuntary manslaughter charge. To illustrate: one definition of involuntary manslaughter is when a death unintentionally results from doing a lawful act in an unlawful manner.

Manslaughter Argument

In this case, the defense lawyers could attempt to beat a murder charge by arguing that the defendants were, at most, guilty of involuntary manslaughter. The argument would go like this: The police were doing a lawful act, making a lawful arrest, but may have done so in an unlawful manner, by using excessive force, unintentionally killing the defendant.

If the jury goes for it, the defense would have reduced a murder charge down to a much less serious involuntary manslaughter charge. But that is an argument for the defense to make, not the DA. Simply put, the use of the phrase “excessive force” might be seen as an attempt to hide the truth rather than illuminate it, in that it is a subtle way to introduce the idea that an involuntary manslaughter charge is somehow appropriate to a case that is still under investigation, and which looks, at least at this juncture, to possibly warrant a charge of felony murder. Presumably the DA knows that the phrase “excessive force” isn’t in the Penal Code. So why is he using it?

Moreover, an involuntary manslaughter charge in this case would rest on what may turn out to be a very flimsy premise, namely, that the police were doing something lawful (“making an arrest”) in the first place. Normally, the prosecutor would scoff at such a self-serving statement as a misstatement of the facts, and say that beating an unconscious man to death is not “making a lawful arrest.”

Normally, the argument that a murder was actually only an involuntary manslaughter would be the defense lawyer’s argument to make, since it is customary practice in criminal trials for the defense lawyer to defend the accused, not the prosecutor.

Jumping to Conclusions

Second: the DA’s office put out a statement, found HERE, saying that if the police are prosecuted, they will be prosecuted for second-degree murder.

What happened to the idea that we had to wait until the investigation was complete before jumping to conclusions regarding the culpability of the cops? Why second-degree murder? Shouldn’t the DA prosecute a first-degree murder case, if that is where the investigation leads?

There are felony murder cases that can be brought for both first degree murder and second degree murder. There is even at least one first degree felony murder charge, which might be applicable to this case, with mayhem as the predicate felony, under which the DA can seek the death penalty, and probably already has, in cases in which the suspects were ordinary criminals, instead of alleged police criminals.

The DA’s office, in this statement, for some reason, indicated a desire to give the six suspects a huge break, possibly even sparing them from the death penalty, before the case is even investigated, even charged, or even plea bargained. That is not how things normally work.

To be fair, the DA himself also said, HERE, that everything was on the table, including, presumably, first-degree murder prosecution. Still, it does make one wonder what kind of internal discussions they are having in the DA’s office.

Threats

The third concerning statement to come out of the DA’s office regarding the Kelly Thomas case is found HERE, and was in reference to the various threats that have been made against the police, which threats were used as justification for not releasing the names of the six police officers to the public. One of the “threats” enumerated by the DA’s office was the following statement: “Kelly Thomas was murdered by numerous officers and they should get the death penalty.”

Strange, isn’t it, that the DA walks into court every single day and says, “This murderer should get the death penalty,” and yet, for some reason sees that exact same statement as a “threat” in this case? It might be a threat if the statement had been, “The police are murderers and WILL get the death penalty”; but the use of the conditional words “they should” by whoever made the statement indicates a belief in a qualifying condition precedent to the imposition of the death penalty, i.e., that the murdering police should get the death penalty IF they are found guilty of capital murder.

If I say, “State law provides that those who are found guilty of capital murder can get the death penalty,” while that certainly sounds threatening to those who have reason to fear state law, it is, nonetheless, a statement of fact. If a criminal defendant were to say to the judge, in court, “Your Honor, the DA is threatening me. He is calling me a murderer and he is trying to get me the death penalty,” the judge would nod and explain that, yes, the DA is doing his job. In sum, the law is a “threat” only to criminals.

Felony Murder Charge

The police department spokesman complained that the “threats” were anonymous, and thus difficult to track. But I am not anonymous, and I believe that the witness accounts of the beating death of Kelly Thomas that have appeared in the media, i.e., that six police beat a man into unconsciousness and continued beating him even after he stopped moving and lost consciousness, are, if found credible after the current investigation, strong evidence to support a charge of felony murder against all six officers involved.

I also believe that if the investigation reveals that Kelly Thomas would have needed plastic surgery to repair his face had he lived, or that he had broken bones, or permanently and severely damaged organs, such as his eyes or ears, that a charge of felony murder with the crime of mayhem as the predicate felony would be legally warranted.

In sum, the DA must soon decide whether to charge the Fullerton six, and if so, with what. I for one wish him well. In the first story linked above, the DA called the killing of Kelly Thomas “a tragedy.” It wasn’t. A fatal accident is a tragedy. A young man dying of cancer is a tragedy. A young man getting shot or stabbed or beaten to death is a crime.

This article was also published on Friends for Fullerton’s Future blog.