Update 4:09 p.m.: Orange County District Atty. Tony Rackauckas resumed his redirect of former FBI agent and use of force expert John Wilson following the lunch break.
Rackauckas played a section of the video in which Kelly Thomas is heard screaming. Rackauckas asked Wilson to identify the number of “blows” Thomas received.
Wilson: “I counted eight blows.”
Rackauckas then yielded the floor to defense attorney John Barnett, representing defendant Manuel Ramos, to once again cross-examine Wilson. Barnett asked Wilson about his experience as an expert witness testifying about the use of force.
Wilson said he had testified once before as a use-of-force expert in federal court about three years ago.
Barnett used video of the incident as he questioned Wilson about comments made by Ramos in the minutes leading up to the altercation between Thomas and six Fullerton police officers, including Ramos. At one point in the video, Ramos is heard saying, “See my fists? They’re getting ready to f–k you up.”
Wilson had previously testified that comments made by Ramos created a “hostile environment.”
The video was played again, then quickly paused. Ramos is next seen on the video using his right hand to grab Thomas’ left arm.
Barnett asked Wilson if he had noticed Thomas raising his left arm when he first saw the video and if he saw that section of video in slow motion when he reviewed the evidence. Wilson said he could not recall.
Barnett played that section of the video again in slow motion and paused it.
Defense attorney Michael Schwartz, representing defendant Jay Cicinelli, also had additional questions for Wilson under cross -examination. He asked Wilson to confirm he had only testified once before as a use-of-force expert in court. Wilson responded yes, just the one time.
Rackauckas on redirect asked Wilson whether he had testified in other cases about use of lethal force and about his teaching experience related to use of force. Wilson recounted his background and experience with the FBI in evaluating and training agents in the use of force.
Rackauckas then referred to the section of video where Thomas raises his left arm and Ramos grabs it.
Rackauckas: “Was their anything in the video Mr. Barnett just played for you that changed your mind about the use of force?”
Wilson: “Absolutely not.”
After the response, Wilson was excused, concluding one-and-a-half days of testimony. Next came a series of relatively brief witness accounts.
- Fullerton Police crime scene investigator Dawn Scruggs was recalled to the stand. Asst. District Atty. Jim Tanizaki asked her to identify a photo she took at the Fullerton Transportation Center on July 5, 2011. She testified the photo shown on the large court projection screen was of the contents of Kelly Thomas’ backpack. Scruggs testified that she put the backpack and its contents into evidence.
- Fullerton resident H. James Pugh testified he left his backpack in a locker at the Fullerton Transportation Center on June 29, 2011. He said police contacted him July 7 about the backpack. Tanizaki asked him to identify the contents of the backpack, showing the same photo Scruggs had identified earlier. Pugh said all of his contents were in the backpack when it was returned to him, including his keys. On questioning from Schwartz, Pugh said the items returned included his work identification, passport and keys.
- Ronnie Casey Hull testified that on July 5, 2011, he had an office at the Fullerton Transportation Center. Hull, a lawyer, pointed out his office in an aerial photo was shown on the courtroom projection screen. The next photo on the screen showed two envelopes and a draft letter. Both envelopes were addressed to Hull, one handwritten, another one pre-stamped with his address. Hull testified he threw away the envelopes and letter in a trash can near his office at the transit center.
- In July 2011, Carol Barnes was a forensics assistant for the Orange County Coroner’s Office. Part of her duties included assisting pathologists with autopsies. Barnes said she weighed Thomas, who was in a body bag when she did so. She identified two photos of a sealed body bag, which she testified contained Thomas. Barnes, questioned by Schwartz, was asked her if she took x-rays of the body. She said she took full body scans and those X-rays were given to Dr. Aruna Singhania, the pathologist who performed Thomas’ autopsy. In response to Barnett, she said she did not assist Singhania with the autopsy examination of Thomas.
District Atty. Rackauckas then called Dr. Michael Lekawa, the chief of the trauma center at UCI Medical Center. He treated Thomas when he was brought to that hospital the night of the altercation.
Lekawa: “The report I received from paramedics that there had been an interaction with the police. It involved a physical altercation. He was taken to St. Jude’s where he was treated and intubated. There was a report there was a problem with an airway. They put him back in the paramedic rig and brought him to UCI.”
Rackauckas: “Did you examine Kelly Thomas?”
Rackauckas: “What did you find?”
Lekawa: “A man that was unkempt. He had cuts on his face, had a tube down his throat. He was bagged to help him breathe. His blood pressure was low. Initially his eyes were closed, then they became open, but the eyes were not looking in the same direction.”
Rackauckas: “What is advanced trauma life support.”
Lekawa: “Everyone is trained to have the same response no matter what hospital you are working in. The approach starts with airway, breathing and circulation because [problems with those] are what will kill you first.”
During questioning, Lekawa consulted Thomas medical records from UCI.
He testified that Thomas’ vital signs were checked at 10:16 p.m. July 5, 2011.
Lekawa: “His blood pressure was 74/34, his heart rate was 132 and his respiratory rate was 38.”
Rackauckas: “What does that tell you?”
Lekawa: “Those are abnormal signs. Less than 90 for blood pressure is critical. It needs to be addressed. Normal heart rate is in the 70s.”
Rackauckas: “So what do these conditions mean?”
Rackauckas: “What do you mean by critical?”
Lekawa: “Critical means you are at a higher risk of death.”
Lekawa testified that Thomas was attached to a ventilator to assist his breathing, intravenous tubes were inserted to provide saline and plasma in order to stabilize Thomas so he could be taken to get a CT scan.
Lekawa said those steps took “about an hour.” He said X-rays were taken of Thomas’ chest, pelvic area, and neck; and CT scans were taken from Thomas “head to pelvis, all the way down.”
Rackauckas asked what those scans revealed.
Lekawa said the chest x-ray showed the tube was in the correct spot, and the CT scan revealed the area around one of his sinuses was “fractured and bleeding in the sinus.”
1:56 p.m.: Defense attorney Michael Schwartz continued his cross-examination, asking former FBI tactics expert John Wilson about using a Taser as a so-called “impact weapon” to physically strike someone.
Defendant Jay Cicinelli is accused of using his Taser in such a manner against Thomas, and Wilson has testified use of an “impact weapon” can be considered “deadly force.”
Schwartz asked Wilson if such a weapon could cause bodily injury to police officers if a suspect got possession of it.
He also asked if Wilson had reviewed the training that Cicinelli received in the use of improvised tactics. Wilson said he did not recall.
On redirect, Orange County District Atty. Tony Rackauckas asked Wilson about his earlier testimony related to a conversation defendant Manuel Ramos had with Kelly Thomas before the day of the altercation.
The conversation included Ramos asking Thomas if he had ever been hit with a baton.
As Rackauckas questioned Wilson about the intent of Ramos’ comment in that prior contact, each question was met with an objection by Ramos defense attorney John Barnett.
Rackauckas insisted the questions were relevant. The attorneys and Judge William Froeberg left the courtroom for a sidebar.
When the attorneys and Froeberg returned, Rackauckas reviewed a written transcript without asking Wilson any questions. The attorneys and judge then stepped out again for another sidebar, this one lasting about a minute.
Upon returning, Rackauckas again referred again to the July 2009 contact between Ramos and Thomas, where Ramos’ mentioned the baton.
Turning to the altercation on july 5, 2011, Rackauckas asked Wilson if Ramos had maintained proper control under the circumstances.
Wilson answered “no” at the same time Barnett objected. After another sidebar, Rackauckas returned to question Wilson about the night of the altercation.
Rackauckas: “In your expert opinion, did you observe Ramos using any verbal strategy that would appear to be moving toward a plan for gaining compliance.”
Wilson: “No I did not see any evidence of that.”
Rackauckas: “Would you explain.”
Wilson: “The verbal strategy I did see in the initial contact between Ramos and Thomas was not productive. Ramos was antagonistic and mocking of Thomas. It was drawing a negative response from the suspect. In other words, negative rapport was developed at that point.”
Rackauckas: “Once the violence started, Kelly Thomas was acting in self-defense is that right?
Rackauckas: “Did you say Ramos’ comment ‘see these fists…’ would escalate the situation?”
Wilson: “It would significantly increase the danger for the next move and increased the hostile environment.”
As Rackauckas questioned Wilson about how police should treat people that are homeless or mentally-ill, Barnett objected, saying there was “no foundation.”
Judge Froeberg asked Rackauckas if he would like to lay a foundation.
Rackauckas proceeded to ask Wilson questions about his background in dealing with homeless and mentally-ill people. Barnett again objected. Judge Froeberg sustained the objection and said the jury can understand that Wilson has no expertise in that area.
Rackauckas next played a 10-15 second portion of the video.
Rackauckas: “You see where Cpl. Cicinelli has a hold of Kelly Thomas’ hand?”
Rackauckas: “Does that give him an opportunity to control the situation by controlling the hand of Kelly Thomas?”
Wilson: “By controlling the hand, you control the most critical part of getting control of Thomas.”
A few more seconds of the video was played showing Fullerton police Sgt. Kevin Craig assisting Ramos, Cicinelli and fellow officers Joe Wolfe, Kenton Hampton and James Blatney in the struggle with Thomas, who is handcuffed and on the ground.
Sgt. Craig is heard on the video saying not to take the handcuffs off Thomas.
Rackauckas: “Even assuming Sgt. Craig is on the scene, should the goal have changed to consider Kelly Thomas’ welfare.”
Wilson: “Yes sir.”
Rackauckas: “Was there a way to change the approach that would not harm the officers and take care of the welfare of Kelly Thomas?”
Rackauckas: “Does Kelly Thomas represent any danger to police at this point (22:01 in the video)?”
11:53 a.m.: The trial of two former Fullerton police officers charged in the death of a mentally ill, homeless man entered its sixth day, starting with the cross-examination of a former FBI agent and tactical training expert.
Defendants Manuel Ramos and Jay Cicinelli have been charged with involuntary manslaughter in connection with the beating and death of 37-year-old Kelly Thomas in July 2011. Ramos has also been charged with second-degree murder, and Cicinelli faces an additional count of using excessive force.
As the proceedings started, Michael Schwartz, Cicinelli’s defense attorney, resumed his cross-examination of John Wilson.
Wilson was called Monday by the Orange County District Atty. Tony Rackauckas to provide testimony about whether the use of force by Ramos and Cicinelli was reasonable under the circumstances.
Schwartz asked Wilson if he had met with the prosecutors after Monday’s court session. Wilson said he met with the prosecutor for about 90 minutes and the video of the incident was reviewed as part of that meeting.
Schwartz asked Wilson if he had reviewed the Fullerton police training and procedures manual.
Then, Schwartz played a section of video from the July 5, 2011, altercation between Thomas and six officers, including the defedants.
At 18:39 in the video, an officer is heard saying, “Go to the right” as the officers are engaged in the physical struggle with Thomas. The video was paused with a view of the back of Cicinelli standing, torso slightly bent over, but the rest of the officers and Thomas are blocked by a tree.
Schwartz resumed playing the video, stopping it again about 30 seconds later. In the section, Cicinelli removes his Taser with his left hand and shifts it to his right hand (19:17).
Schwartz: “Do you see a light in my client’s hand?”
Wilson: “That would be the Taser correct.”
Schwartz: “At this point, you see no flashlight in the officers hand right?”
Wilson: “I think it’s fair to assume that that is the light from the Taser.”
As the video is resumed, Cicinelli is seen using the Taser to shock Thomas as three officers are over Thomas, including Cicinelli.
Schwartz: “From that light at the end of the Taser, you can tell where the Taser is?”
Schwartz: “Can you identify the three officers on the screen right now.”
Wilson: “Looks like officer Cicinelli and Officer Hampton, that’s all I can see right now.”
(Fullerton Police officer Kenton Hampton is one of three officer who participated in the altercation with Thomas but were not charged in the case due to lack of evidence. The other officers are Sgt. Kevin Craig and Cpl. James Blatney. A fourth officer, Joe Wolfe, faces his own trial on charges related to the case next year.)
The video continued. Thomas is heard screaming, amid sounds of the Taser being used. Schwartz paused the video and questioned Wilson about the location of Cicinelli in respect to Thomas.
Schwartz: “Where is Kelly Thomas’ face.”
Wilson: “I can’t tell at this point in the video.”
Schwartz: “And you can’t see where his right hand or left hand is at this point in the video (19:50)?”
Schwartz asked Wilson about the location of Thomas’ hands and whether he was handcuffed.
Schwartz: “So at this point in time Kelly Thomas does have one handcuff on, is that right?”
Wilson: “Yes, but no one has control of that hand.”
Schwartz played the video again and paused it at 19:56 — the point at which Cicinelli is seen raising his Taser over Thomas’ face. Light from the Taser is seen reflecting on the ground to the right of Thomas. But when Cicinelli moves his arm with the Taser over Thomas, the light beam moves left towards Thomas and then is not visible. Cicinelli’s arm is raised at the point where, Wilson has testified, Cicinelli struck Thomas in the face with the Taser.
The video was stopped, paused, the played in slow motion backwards and forwards several times as Schwartz asked Wilson to point out the moment where Wilson said he can see Cicinelli using his Taser to strike Kelly Thomas.
Wilson identified a part of the video where he said Cicinelli used his Taser to strike Thomas’ face.
This particular 15-25 second portion of the video showed Thomas screaming. The video was played repeatedly during the cross-examination of WIlson, often in slow motion.
Schwartz continued to ask Wilson about the angle of Cicinelli’s arm holding the Taser and the location of the Taser light on the ground.
Schwartz: Do you see a hand, Kelly Thomas’ hand, reaching out at my clients arm?
In the video (19:57), a hand is seen reaching out toward Cicinelli’s arm. In his hand is the Taser.
Wilson: Yes, looks like [Thomas'] left hand.
The video was then advanced a tenth of a second at a time. Schwartz approached Wilson and the two stood side-by-side directly in front of the large projection screen. Schwartz used a pointer as he questioned Wilson about the position of his Cicinelli’s arm.
Schwartz: “Did you see [Thomas'] hand reach up yes or no?”
Wilson: “Yes I did.”
Schwartz: “The cartridge [for Taser] is still attached to the front of the Taser?”
Wilson: “Yes it is.”
Schwartz: “And the darts [from Taser] are attached to Mr. Thomas.”
Wilson: “At least one dart is I believe.”
Schwartz played the video again, stopping it at various points to question Wilson (around 19:58).
Schwartz: “My client is seen resting his arm on Officer Wolfe or Kelly Thomas?”
Schwartz: “We’re at 20:03:81, you see my client has shifted his body to his left before the downward movement of his right arm?”
Schwartz: “You know that my client can’t see through his left eye, right?”
Wilson: “I did not know that when I first reviewed the video.”
Schwartz: “But you knew it last night when you reviewed the video with the prosecutor?”
The video was played, and officer Kevin Craig is seen bending over Thomas as we hear Thomas crying out “Dad, dad, dad …. Help me, help me, dad.”
Schwartz asked Wilson what the officers were doing at this point in the video.
Schwartz: “At 21:15:61, Cpl. Cicinelli at this point, took both of his hands off of the police car. We see him reaching for something with his left hand on the right side of his duty belt?”
(In earlier testimony, a crime scene investigators said Cicinelli called dispatch for medical help at this point.)
Schwartz: “And he had to drop the Taser to do that?”
Wilson: “He did drop the Taser.”
The video was played again and stopped (21:27. Thomas is heard, saying “I can’t breathe…”
In the video on the projection screen, four officers are standing and two are crouching over Thomas.
Two of the officers, Cicinelli and Craig, are using a patrol car, bracing their hands against it while using their legs to restrain Thomas, who is on the ground. Craig has one hand against the patrol car, and Cicinelli has both hands against it.
During this point in the altercation, Cicinelli takes one of his hands from the patrol car and picks up his Taser.
The video was played to 22:23 where Thomas’ voice begins slowing in tone and decreasing in volume as he is heard saying “Daddy…daddy…daddy…” as officers, including Ramos and Cicinelli, continue to restrain him.
Schwartz started to ask Wilson questions about the Fullerton Police Department’s policy about use of lethal or deadly force.
District Atty. Rackauckas objected. After a sidebar, with Judge William Froeberg, Schwartz continued to question Wilson about the use of a Taser in the effort to control a suspect.
The video was played again and Schwartz asked if Wilson can hear Cicinelli announce “dry stun.” (19:08)
Wilson said he could hear that.
Schwartz: “Before you heard the clicking [of the Taser] you hear Mr. Thomas say ‘ow’ right?”
Schwartz: “At this point it’s 19:20:48 on the video, my client is deploying darts against Mr. Thomas?”
At this point, Judge Froeberg called the morning recess. Wilson will continue to be questioned by Schwartz when court resumes.
Source: Ed Joyce Orange County Reporter 89.3 KPPC