Murder conviction could be tough in homeless death

AP News
Posted: Sep 22, 2011 3:48 PM
Murder conviction could be tough in homeless death

A suspect pulls on a pair of rubber gloves, tells a mentally ill homeless man he's about to attack him, then initiates a beating that ends in the man's death.

Any prosecutor might ordinarily be confident of a slam-dunk murder conviction, especially when the beating is captured on video and audio recordings.

But when the suspect is a police officer, all bets are off.

Authorities charged a Fullerton police officer with murder Wednesday amid those circumstances, but legal observers said murder convictions for on-duty police killings are exceedingly rare, primarily because courts and jurors have an innate sympathy for law enforcement officers, even when video or audio evidence depicts a killing in graphic detail.

"Jurors are reluctant to find murder when it is not a cold-blooded, premeditated killing," said Dane Ciolino, a law professor at Loyola University in New Orleans. "Unless they think the officer woke up, put on his boots with murder on his mind, it's difficult for prosecutors to prove a case."

Orange County prosecutors charged Officer Manuel Ramos with second-degree murder and involuntary manslaughter in the July 5 confrontation with Kelly Thomas, a 37-year-old homeless man with schizophrenia. Police Cpl. Jay Cicinelli was charged with involuntary manslaughter and excessive force.

Cicinelli has pleaded not guilty; Ramos has yet to be arraigned.

Ramos was responding to reports of a homeless man burglarizing cars at a transit hub in suburban Fullerton, a college town of about 135,000. Though Ramos already knew him, prosecutors say the officer escalated a routine stop-and-search to a bloody attack against Thomas, who appeared to be having difficulty following commands.

Ramos was wearing a digital audio device that captured the exchange, in which prosecutors say he told Thomas he was going to "F him up."

Prosecutors say Ramos started the beating then five other officers who had not seen the start of the confrontation joined in. In the 10-minute incident, Thomas was shocked four times with a Taser, kneed in the head, punched in the ribs and bashed eight times around the face with the butt of a stun gun as he cried out for his father and begged for help as Ramos laid on top of him, authorities said.

"That is not protecting and serving," Orange County District Attorney Tony Rackauckas said.

The coroner concluded the cause of Thomas' death was mechanical compression of the thorax, which made it impossible for Thomas to breathe normally and deprived his brain of oxygen, Rackauckas said. Other injuries to the face and head contributed to the death, he said.

Despite the circumstances, legal experts were skeptical Ramos would be convicted of the murder charge. They could recall few examples of such a charge ever sticking in court.

"It is very rare for a police officer to be charged criminally for the use of excessive force," said Lorie Fridell, an associate professor of criminology at the University of South Florida. "You have to remember these officers are walking a fine line in their use of force. They need to use enough force to effectuate their protection in taking a person into custody. But if their judgment is wrong, they are facing allegations of abuse."

In California, former transit agency officer Johannes Mehserle was initially charged with murder for fatally shooting Oscar Grant on an Oakland train station platform on New Year's Day in 2009. Multiple passengers on the train videotaped the killing, which sparked riots in the city.

Mehserle said he mistakenly fired his handgun instead of his Taser. A jury eventually convicted him of involuntary manslaughter and he served a year in jail.

Jurors and courts "tend to give officers more leeway in a use-of-force case," said Mehserle's attorney Michael Rains. "The courts talk about how we need to look at the conduct based on the state of mind ... at the time and not on 20/20 hindsight from today."

In 1996, New Orleans police officer Len Davis was convicted of capital murder for ordering a hit on a woman who filed a brutality case.

Last year, former New Orleans police officer David Warren was convicted of manslaughter for fatally shooting a man in Hurricane Katrina's aftermath. Another officer was convicted of burning the man's body in a car.

And in the same city, a federal jury convicted a group of current or former police officers in deadly shootings on a bridge less than a week after the hurricane. They were convicted of civil rights violations in the shootings that killed two people, but the killings were found not to have been murders.

Ramos' attorney, John Barnett, has disputed the district attorney's account of the confrontation with Thomas. He says when his client snapped on a pair of latex gloves and made a threat, he was using a subtle type of force to get a suspect to comply.

"It was an attempt by the officer to use words not force to get the suspect to do what he's supposed to do," Barnett said.

Barnett previously defended a Los Angeles police officer who was charged with murdering an unarmed truck driver. A judge eventually dismissed the case.

Bill Hadden, Cicinelli's attorney, declined to comment.

Thomas' death generated furious protest against the Fullerton Police Department, with hundreds of residents demanding the chief's departure and swift action against the officers.

The other four officers remained on administrative leave and were not expected to be charged. The district attorney said there was no evidence to show they knew what had happened between Ramos and Thomas when they arrived on scene and may have thought they were helping subdue a dangerous suspect.

A second-degree murder conviction carries a maximum sentence of up to life in prison. The charge is less serious than first-degree murder, where prosecutors must usually prove some level of premeditation or nefarious motivation.


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