The DA announced that only two of the cops are being charged. One with felony second degree murder and felony involuntary manslaughter. This is officer Manuel Ramos, who is facing 15 yrs to life. The other is being charged with felony involuntary manslaughter and felony use of excess force. His name is corporal Jay Cincinelli who's facing 4 yrs.
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| Cincinelli and Ramos booking photos |
This is another instance of the double standard between regular people and cops. The truth is without the video or with it, if left to their own devices none of these 6 cops would be arrested and prosecuted, it would be as it was before all the uproar, Kelly Thomas would be dead, and all 6 cops would still be working every day, just as they were for what, 4 weeks after the murder. If they were just regular people, they'd all have been arrested and tried. For felony murder, under the California Felony Murder Rule, if you commit certain felonies and someone dies even accedentally murder attaches, for instance if the felony were mayhem or torture, which
Let's look it up,
California's felony-murder rule creates murder liability for individuals who kill another human being during the commission of a dangerous felony. California courts have long relied on this rule, holding that someone who engages in reckless behavior shouldn't be excused from killing someone just because it wasn't part of their original plan.
The rule has two stated purposes. First is to deter people from killing others during the commission of another felony. Second is to deter the commission of the underlying felony itself.4 It doesn't matter whether the killings were intentional, accidental, or negligent…if someone was killed during the commission of a felony, the felony-murder rule attaches
would certainly be apt, intent and/or awareness, is not required to make a case for felony murder, either murder 1 or 2.
How many times have people who've been say sitting in a car, when a crime went down and they were prosecuted as accomplices or accessories? In the opinions of most, these other 4 were at least accomplices, or possibly accessories before and after the fact, and should be prosecuted as such, at the very least. The same thing applies to the dispatchers on duty, the superior officers such as the watch commander, and those that kept having the 6 re-write their reports, while watching the bus depot video, until they were just right. They are accessories after the fact at least. In the case of the dispatchers and watch commander, they're also accomplices before the fact, as they watched the video, one dispatcher actually zoomed in on the murder, and did nothing to stop it or save Mr. Thomas' life. Not to mention every other cop, keeping their mouthes shut behind the blue wall of silence, and protecting their "brothers." What is an accomplice/accessory anyway? The definition of accessory and accomplice is:
Accessory: In most U.S. jurisdictions today, however, an accessory can be convicted even if the principal actor is not arrested or is acquitted. The prosecution must establish that the accessory in some way instigated, furthered, or concealed the crime. Typically, punishment for a convicted accessory is not as severe as that for the perpetrator.
An accessory must knowingly promote or contribute to the crime. In other words, she or he must aid or encourage the offense deliberately, not accidentally. The accessory may withdraw from the crime by denouncing the plans, refusing to assist with the crime, contacting the police, or trying to stop the crime from occurring.
An accessory before the fact is someone behind the scenes who orders a crime or helps another person commit it. Many jurisdictions now refer to accessories before the fact as parties to the crime or even accomplices. This substitution of terms can be confusing because accessories are fundamentally different from accomplices. Strictly speaking, whereas an Accomplice may be present at the crime scene, an accessory may not. Also, an accomplice generally is considered to be as guilty of the crime as the perpetrator, whereas an accessory has traditionally received a lighter punishment.
An accessory after the fact is someone who knows that a crime has occurred but nonetheless helps to conceal it. Today, this action is often termed obstructing justice or harboring a fugitive.
Accomplice: One who knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime. One who is in some way concerned or associated in commission of crime; partaker of guilt; one who aids or assists, or is an Accessory. One who is guilty of complicity in crime charged, either by being present and aiding or abetting in it, or having advised and encouraged it, though absent from place when it was committed, though mere presence, Acquiescence, or silence, in the absence of a duty to act, is not enough, no matter how reprehensible it may be, to constitute one an accomplice. One is liable as an accomplice to the crime of another if he or she gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime.
An accomplice may assist or encourage the principal offender with the intent to have the crime committed, the same as the chief actor. An accomplice may or may not be present when the crime is actually committed. However, without sharing the criminal intent, one who is merely present when a crime occurs and stands by silently is not an accomplice, no matter how reprehensible his or her inaction.
Some crimes are so defined that certain persons cannot be charged as accomplices even when their conduct significantly aids the chief offender. For example, a businessperson who yields to the Extortion demands of a racketeer or a parent who pays ransom to a kidnapper may be unwise, but neither is a principal in the commission of the crimes. Even a victim may unwittingly create a perfect opportunity for the commission of a crime but cannot be considered an accomplice because he or she lacks a criminal intent.
An accomplice may supply money, guns, or supplies. In one case, an accomplice provided his own blood to be poured on selective service files. The driver of the getaway car, a lookout, or a person who entices the victim or distracts possible witnesses is an accomplice.
An accomplice can be convicted even if the person that he or she aids or encourages is not. He or she is usually subject to the same degree of punishment as the principal offender.
As you can see many of the persons discussed above were accessories and/or accomplices. The most reasonable thought for why they're not being charged is that the DA doesn't think he can get convictions, thereby messing up his conviction rate. It's also been said all along that he's never prosecuted any cop for murder, that he protects the police. In my opinion, while I don't completely agree, he's taken a step in the right direction. He's going against the police and police unions, at least three of the city council members ogf Fullerton, and who knows who else, and is trying to do the right thing. He's gambling his political future, yes surprise, he is a politician, to try and do the right thing. I listened to his press conference, and from what I heard, not only what he said, but how he said it, his voice almost breaking, quivering in some places, I honestly think he is as disturbed, perhaps horrified, by what was done to Mr. Thomas, as all of us who became aware of and followed or participated in the protests, the city council meetings, the recall, and everything else. I'm starting to hope and believe that he is less interested in the whitewash and more interested in prosecuting the offenders, even though they happen to be cops, than thinking he's prosecuting for the least crime posible with the easiest sentence to please his political backers, inother words throwing as few as possible and the least important under the bus. No matter how you look at it, it's not going to be easy getting a conviction in Orange County, CA, where many people probably think Kelly Thomas got what he deserved, irrational as that may be.
Here's a post by Attorney Mark Cabaniss written before the charges being filed today. He's provided us with more expert analysis on the potential prosecution of the Fullerton police officers responsible for Kelly Thomas’ death:
It is getting close to decision time for the DA in the Kelly Thomas case. 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 they are 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 preemptive 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 six—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. 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. In fact, there is a case of the Orange County DA’s office prosecuting an unintentional felony murder in this past Friday’s Los Angeles Times.
If the DA were to decide on torture felony murder as the appropriate charge, he has at least one capable prosecutor to handle the case, the one that got a torture conviction for the Orange County DA’s office against an Austin Powers bit player (LA Times).
Certainly the conduct in the above torture case was horrific, but not, I think, more horrific than tasing a man over and over while he cried out for his Dad to save him.
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. 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.
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.
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.
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. I further believe that if the police were subject to a felony murder prosecution with mayhem as the predicate felony, then the prosecutor should seek the death penalty. Finally, I also believe that if the police were to receive death sentences after trial, then they ought to be executed, just like other killers.
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.
The DA's Press Release
Now while it's not perfect, not all of the 6 are being prosecuted it's better than it was, 2 are, and the DA says they are the two most culpable. Most don't agree that the others did nothing wrong. They should have had a moral obligation to stop the murder. True as the DA said later there was a lot going on there, but any idiot could see there was something wrong when Cincinelli was beating Mr. Thomas eight times with the tazer, drop kneeing him in the face, tazing him up to six times, and Mr. Thomas was laying there unmoving. Most don't agree that the others did nothing wrong piling their weight, estimated to be 1200-1500 pounds fully armed, on top of Mr Thomas, creating his inability to breathe, ultimately causing his death. I'm hoping they all remember for the rest of their lives that they helped murder an innocent man, but have a horrible feeling that they don't think they did anything wrong.
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