The trial over a 37-year-old California homeless man’s death has turned to the victim’s past and his cause of death.  The death which was caught on video was a violent confrontation where the man screamed for his father to help him 30 times and begged for air as officers piled on top of him, struck him repeatedly, and stunned him into unconsciousness.

The defense contends that Kelly Thomas had a checkered past and many health problems, including mental illness and drug use.  The prosecution contends the video speaks for itself, Thomas died because he couldn’t breathe as officers wouldn’t relent despite his apologies and clear distress.

The final two witnesses, both doctors, testified in the Kelly Thomas police beating death trial on Monday.  Following the holiday recess, court resumed with the prosecution’s rebuttal case.  District Attorney Tony Rackauckas called Dr. Matthew J. Budoff, a world-renowned cardiologist and professor at Harbor UCLA Medical Center in Torrance, as a rebuttal witness to address the defense’s medical expert’s conclusions.  Thomas, whose severe beating was caught on tape, died as a result of lack of oxygen due to the attack by a group of officers, according to the prosecutors.

“[Thomas] died because he wasn’t getting enough oxygen [while officers pummeled him],” Budoff testified.

It has been the defense attorneys’, for two of the officers charged, main argument that 7 minutes of blows from the officers and their various police weaponry had nothing to do with Thomas’ death.  Defense lawyers John Barnett and Michael Schwartz, who are known for representing police officers, called Dr. Steven B. Karch during their presentation to the jury.  He testified that Thomas killed himself by overexerting his damaged heart from prior meth use while resisting officers.  The biggest hurdle for the defense is that Karch admitted on the stand that his conclusions were based upon his guess that Thomas suffered a spontaneous meth delusion that prompted his resistance of police and subsequent death.

“I can’t imagine a situation where I’d fight six policemen,” Karch told the jury on December 18th.

Prosecutors reminded the jury that blood tests show that Thomas was sober of all alcohol and drugs the night of his death; video and audio recordings demonstrate he was coherent during the attack, and that he did not provoke the officers.  The prosecution contends that neither drug use nor Thomas’ mental illness had anything to do with what happened, it was an unprovoked beating of a homeless man in need of help by a group of overzealous, dangerous officers.

Rackauckas asked Budoff if he agreed with Karch’s conclusion that Thomas died from an enlarged heart.  Budoff told the jury that there was “no evidence” for that assertion.  Budoff showed the jury an autopsy photo of Thomas’ heart, “This is not big,” he testified.  Budoff used a hospital photo of a heart destroyed by meth use that was reportedly markedly larger than Thomas’ to demonstrate Thomas’ lack of a heart condition.  Budoff stated that Thomas’ heart was a normal 39 mm and that it was actually “small”, the average being 55 mm.  Budoff went on to reassert to the jury that the victim’s low pH level of 6.49 indicated that he died from lack of oxygen not heart failure.

The defense then presented a surrebuttal calling Karch back to the stand.  Reportedly, during the prosecution’s cross-examination, Karch was defensive.  When the prosecutor asked, if he disagreed with the measurements of the heart, Karch said, “Could you define size…?”  Karch reasserted to the jury that Thomas could have easily died doing anything, including watching TV on July 5, 2011.  The punching, kicking, stomping, clubbing, and tasering had nothing to do with his death.  In contrast, was Budoff’s testimony that if Thomas had not been beaten to death by the defendants, and had stayed off drugs, he could have lived another 40 years.

The county coroner determined that Thomas died because his chest was compressed from officers lying on top of him.  Rackauckas insists that now fired officers Manuel Ramos and Jay Cicinelli, the two defendants, went far beyond the use of excessive force in dealing with the homeless, schizophrenic man.  Closing arguments began Tuesday.

In other matters, jurors in the trial may be told to disregard the opinions of witnesses who stated that the men acted within department policy.  The admonition from the judge is expected to be a part of jury instructions.  Both sides are still deciding how to word the instruction.

“You are ordered to disregard those opinions,” a draft says, “It is up to you to determine whether the defendants used excessive or unreasonable force based on all the evidence that has been presented in this trial but you may not consider evidence that has been stricken.”

The instruction results from the prosecution’s challenge to the testimony of two witnesses who said officer Manuel Ramos and officer Jay Cicinelli acted within the Fullerton Police Department policy.  Ramos is charged with second-degree murder and involuntary manslaughter and Cicinelli is charged with involuntary manslaughter and excessive force.

Prosecutors successfully sought the personnel files of the two defendants in order to prove they were fired, which indicates a violation of department policy.  The city of Fullerton appealed the initial decision by Judge William Froeberg, which ordered the confidential documents, be turned over to prosecutors.  The 4th District Court of Appeals upheld the trial judge’s ruling to release portions of the files to prosecutors.  Prosecutors hoped that the records would reflect whether the officers were fired and the conclusions from the Internal Affairs investigation.  The documents will not be shown to the jury.

One of the witnesses who testified on this issue was Fullerton police Corporal Stephen Rubio, a former use-of-force trainer, testified for the defense that the only action that the officers took outside of policy was the use of profanity.  He told the jury he watched the 33-minute video where Thomas is tackled, repeatedly struck by a group of officers with fists, batons, tasers, and taken away by ambulance unconscious.  The 37-year-old was taken off of life support 5 days later.

The other witness, Sargeant Kevin Craig, who viewed only the parts of the video where Thomas was on the ground, testified that even though Thomas can be heard stating that he cannot breathe, calling for help, and apologizing, the officers should not have relented because Thomas was resisting.

Jury instructions have already mostly been argued in court.  The trial now in its fifth week will soon go to jury deliberations.  Issues considered for jury instructions included, whether prosecutors can argue that Ramos had a legal duty to render aid to Thomas after he was detained, including the obligation not to expose him to injury by others; whether or not jurors can weigh whether Ramos could have reasonably foreseen Thomas’ death; and whether jurors can consider acts of omission by Ramos or things he failed to do.

The pivotal piece of evidence is the video, which has been showed repeatedly to the jury in both sides’ cases.  In it, Ramos, who had 7 previous non-violent encounters with Thomas, is seen asking Thomas his name and making him sit on the curb while the other officers go through his bag.  The officers were responding to a possible attempted car break-in.  Thomas doesn’t comply and Ramos puts on a pair of Latex gloves, makes two fists, and says;

“Now you see my fists? They’re getting ready to f*** you up.”

Thomas stands up and attempts to flee, but is grabbed by officers.  Cicinelli, who arrived as backup a short time later, immediately strikes Thomas at least 8 times in the face and head area with his stun gun and then stuns him repeatedly.

Thomas’ 91-year-old grandfather, Walter Dieball, took the witness stand during the defense’s case and told the jury he never feared his grandson, but in 1995, he did strike him three times with a fire poker.  His mother, Cathy Thomas, testified that she took out a restraining order on her son three years ago because he choked her.  She told the jury she wished she knew more about Thomas’ illness and how to get him help.

The decision to charge an officer with murder for actions on duty is exceedingly rare particularly in Orange County, California where Ramos is the first uniformed officer in history to be charged with murder for an on-duty incident.  The trial is so important that four-term District Attorney Tony Rackauckas has handled the majority of the case.  Thomas’ death caused outrage and his supporters, calling themselves “Kelly’s Army” have succeeded in recalling three city council members and pressuring the Fullerton police chief to resign.  More than that they have created a dialogue about police relations with the homeless and the mentally ill.

A third officer charged in the incident is being tried separately.  Ramos and Cicinelli are free on bail.  The other three officers were not charged.

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