The Outrage of the Kelly Thomas Cops’ Acquittal

The verdict was stunning:

Two former police officers were acquitted of all charges Monday in the 2011 beating death of a homeless man at a Fullerton, Calif., transit station.

It took a single day of deliberations for jurors to reach their verdicts regarding the culpability of former Fullerton Officer Manuel Ramos and former Cpl. Jay Cicinelli in the death of 37-year-old Kelly Thomas.

As if to add insult to injury, the beating was somewhat captured on video, and he died five days later.  Calling for his dad to help him as he was tased and beaten was more than most people could stand.  And yet, the jury returned a verdict of not guilty.

Defense attorneys claimed Thomas was a violent, unpredictable man who was to blame for the altercation because he was combative and ignored officers’ orders.

From the Los Angeles Times:

Attorneys for Manuel Ramos and Jay Cicinelli said the lawmen were just doing  their jobs. “They did what they were trained to do,” attorney John Barnett told The Times.

As brutal as these statements are, and as revealing as to what the job of a police officer, the job for which the cop is trained, may be, the jury still acquitted.  My own reaction was captured in a twit:

There is nothing more to say about the Kelly Thomas verdict but that your fellow citizens have spoken.

Following the verdict, the Thomas family has called for a federal prosecution for the denial of Kelly Thomas’ civil rights by, you know, killing him.  The visceral reaction is that this should be the next step, as the acquittal of these cops is such an outrage as to demand redress.

But as much as we may believe that the acquittal is an outrage, and that our sense of justice is so fundamentally offended by this outcome, a few days have passed and it’s time to step back from the emotional reaction and consider the doctrinal consequences of this call for reprosecution.

Dual sovereignty opens the door for a second prosecution of these cops, despite the prohibition on double jeopardy in the Constitution.  The state of the law is that the same conduct for which the cops were acquitted can serve as the basis for a federal prosecution. It’s been done before.

That this cases involves cops “getting away with murder” tends to skew our vision.  For many, the reaction will be that if it can happen to non-cops, then they deserve to be put through the gauntlet again as well.  It’s an understandable reaction, but it’s backward.

Dual sovereignty is an insidious legal construct designed to circumvent the double jeopardy clause.  That there are “different sovereigns,” the state and the federal governments, and different laws for each, does not change the reality that the same conduct, the same set of facts, gives rise to two independent prosecutions.  When they fail to get you the first time, they get a chance to nail you again.  This is what double jeopardy should prohibit, but for the tricks of law.

It’s wrong to circumvent double jeopardy when it comes to a non-cop, and that makes it just as wrong when the target is a cop.  It’s wrong when it’s someone whose conduct we don’t find reprehensible, and it’s just as wrong when we are outraged by the conduct.  Maintaining intellectual consistency is key to the viability of the law, even when it pains us to do so.

But why?  Why should these cops get away with it, when this only happens for cops. Cops are treated differently by the system, by juries, and given a free pass when any other defendant would be convicted in a blink of an eye. Why are cops entitled to kill with impunity?

The distinction between how a jury, comprised of your fellow citizens, views the conduct of a cop from anyone else is a sad commentary on the thoughtfulness and understanding of society. But just as so many look to jurors for nullification, under the dubious view that they will appreciate the wrongfulness of certain prosecutions just like we do, they remain the bulwark our system provides between conviction and acquittal.  You can’t love juries when they do what you think they should do, but hate them when they don’t.

In this case, the jury heard the evidence and rendered a verdict.  Though the acquittal was shocking to me, I wasn’t on this jury.  As much as I would like to argue that the jurors were all badge-licking, cop-sycophantic morons, I cannot. I cannot conclude something because it suits my sensibilities when I have no basis in fact to do so, no matter how outraged I am.

More importantly, consider that the tension between dual sovereignty and the double jeopardy clause is one borne of individualized retribution versus systemic integrity.  Are we willing to forego the constitutional prohibition against double jeopardy for all in order to make damn sure that these two cops suffer the consequences of their action?

We often speak to the maxim that it’s better that ten guilty men go free than one innocent be convicted (or whatever numbers suit your fancy).  Are we willing to let 100 non-cops be subject to dual sovereignty, put through a successive prosecution after an acquittal, just so that these two cops get theirs?

Sometimes the guilty beat the rap. It happens. The integrity of the system must go on, and we must be vigilant not to sacrifice a system just to get some particularly despicable defendants. This is one of those times to be vigilant, as hard as it may be.

 

 

18 thoughts on “The Outrage of the Kelly Thomas Cops’ Acquittal

  1. Jim Majkowski

    Robert Bolt ascribed to Sir Thomas More that he would give the Devil the benefit of law. It’s not easy to do. Well done, Counselor Greenfield.

  2. Mike Paar

    While I mostly agree with your sentiments regarding double jeopardy, sometimes it is necessary to correct a injustice. I operate a website which publicizes and documents specific incidents of police misconduct and while harvesting reports from the web I must read the hundreds of news accounts involving police brutality every week. While conducting my searches I see dozens of cases in which juries acquit officers for the some of the most heinous crimes imaginable. And police officers have become so brazen that many couldn’t care less if video or other evidence exists which contradicts their testimony because they know that the DA isn’t giving their best shot at convicting, instead the prosecutors are just going through the motions for show. After almost a decade of following reports of trials involving cops it is my opinion that in cases like the Kelly Thomas case prosecutors intentionally lay down in an effort to keep the monies awarded in the following civil suits to a minimum, which is why federal prosecutors and double jeopardy is necessary. Many jurors on the Kelly Thomas panel shouldn’t have been there had the DA really wanted a conviction. As bad as double jeopardy is, without it these atrocious acts would go unpunished and be condoned by the entire government.

    1. SHG Post author

      Well-intended and zealous people often share your view, that their injustices are different and demand special treatment. Passion is the enemy of reason.

    2. Jim Majkowski

      “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
      Wm Pitt (the younger) Speech in the House of Commons (18 November, 1783).

      Compare: “And with necessity, / The tyrant’s plea, / excus’d his devilish deeds”, John Milton, Paradise Lost, Book iv, line 393.

  3. Mike Paar

    Probably the most effective way to deal with police officers who commit felonies is to have all of the cases prosecuted by the federal government. The feds don’t have to worry about being reelected in the county and couldn’t care less about the settlement amounts in the civil cases so they would be less likely to throw a case than the local DA. I recall the first time I saw the feds in a double jeopardy case, and at first I was dead against it. The case involved a Houston bookie who had his brother kill his wife. This bookie had been an informant with the Houston police for decades who allowed him to run his gambling operation as long as he turned in his competitors. During the federal trial much more evidence was presented than what the local DA had presented, and the bookie was of course convicted. My point being that if we didn’t have corrupt district attorneys rolling over when prosecuting cops there would be no need for federal prosecutions on similar charges.

    1. SHG Post author

      This is not a soapbox for your views on prosecuting police, or to tell your favorite war stories. This post isn’t about “your point.”

      1. Brent

        The post/blog isn’t about Mike Paar’s point of view, but his reply to the post is. What’s wrong with that?

        1. SHG Post author

          Comments here are directed to the post, not generic or collateral issues. This blawg is neither a soapbox for anyone on the internet nor a platform for commenters to launch into their own issues. There are plenty of other places to go for that, but not here. That’s what’s wrong with that. And before you ask why, it’s because this is my blawg and that’s why. If anyone disagrees with how I run the place, they’re free to start their own blog and do as they please.

  4. Virgil T. Morant

    As much as I hesitate to resort to alternate prosecutions or to try and try again if one fails in the first place against a defendant, in cases like these involving law enforcement I do wonder whether we are always talking about materially the same crimes between the Federal and State prosecutions that may happen. If there is a homicide or other violent crime prosecution by the State, and there is, say, a prosecution for depriving someone of rights under color of law by the United States, isn’t the second an offense sufficiently different that it ought not offend one’s double jeopardy sensibilities? It seems that prosecuting a police officer for something like that that is specifically about his being a public official. I realize that these cases are mostly discussed in terms of Dual Sovereignty and Double Jeopardy, but I wonder if they don’t so squarely fall into those categories as they are given credit for. It seems quite logical to regard an offense specifically about an abuse of public authority to be separate from a homicide offense anyway.

    I think that those who cry out for a new prosecution and throw together petitions over it and whatnot, however, are sorely misguided in one crucial way: men like these police officers may as individuals be convicted or go free, but putting or trying to put a public effort into this case or that just focuses on symptoms of the problem, motivated, as you note, by the outrage of a particular case. It doesn’t do a blessed thing to deal with why these kinds of cases happen overall. Well, if it can be any consolation to those who are offended by an acquittal like this, in a number of cases the cops who “get away with it” do nonetheless find themselves out of their jobs or their lives otherwise changed to their displeasure anyhow, but consider it: even if this or that police officer’s life or career is ruined in spite of his acquittal, a nice little number of other cops are going to keep abusing “suspects” regardless.

    1. Lurker

      This point is valid to some extent. In Europe, the different member states of the EU are separate sovereigns in a clearly more real sense than the US and its several states. However, there, the double jeopardy rule applies cross-border. If Portugal prosecutes you, Poland cannot re-prosecute for the same actions, regardless of the crime’s name.

      Yet, there are exceptions. The crimes concerning official acts and military offences are exempt from the international double jeopardy rule. This is because typically, only the courts of the defendant’s home jurisdiction can apply the military justice or official crimes legislation properly. Even then, any previous sentences served for the actions must be credited when resentencing. So, in Europe, these police officers might be reprosecuted for civil rights violations only if their original murder trial had been in a state different from their own.

  5. jakee308

    All that you say is true. The outrage is that it happens far too often (most times by an “investigation” by the very department employing, training and directing those same cops) in too many different jurisdictions.

    Anyone looking for the reason why the Police seem to over react and use deadly force more and more often are looking at the reason it will continue; because they can and do get away with it.

    And remember that these are the incidents that were made PUBLIC by their enormity and the public reaction. The very same attitude by the police is in play every time an arrest or detention is made. The police will do whatever they decide to do for whatever reason and they don’t worry much about repercussions from their bosses. The objects of their actions usually don’t waste their time complaining about it because it would BE a waste of time. Who would care? How would the cops be punished if they were?

    And so the law at all levels is tarnished and demeaned by what is allowed to flourish at the lowest.

  6. UltravioletAdmin

    I think the key point as to whether or not a Federal Prosecution is what the efforts of the DA were.

    If the DA sandbagged it, then I’m not opposed to a federal trial. If the DA used reasonable efforts, then our efforts should be focused on changing the department policies to prevent such outrages, or create institutional changes. Like use the initiative system to actually help justice for once.

  7. Maria

    This is much like the verdict in the Trayvon Martin trial. Ironically, it reinforces my belief in our system. If it was up to the will of the mob, George Zimmerman and these police officers would have been imprisoned and/or killed long ago. But that is mob behavior, not justice. And it while inflicting that on my enemies might be acceptable, I would never want my family or friends treated that way.

    I was not on the jury, and while I am always suspicious, I did not see the evidence they saw. I respect their decision.

  8. Mirriam Seddiq

    I didn’t watch any of the trial, and I do think cops get more than a break (although sometimes they are used as scapegoats when the shit hits the fan) but I also know that I’ve had my share of wins on cases that others simply would be dumbfounded by. They make total sense to me after putting in all of the, you know, evidence. But the general public would say “but she admitted to strangling her best friend and dumping her in a parking lot”.

    I do think the point about starting with prosecutions of police officers in federal court is an appropriate response to your double jeopardy issue. You are right, it sucks that they can keep trying to get your guy if they want to. So, why not just have one place be in charge of prosecuting these folks instead?

    1. SHG Post author

      Integrity doesn’t come from assholes wearing tin foil hats spouting conspiracy theories and ranting about how all cops are evil and the legal system is corrupt, Ed. It comes from actually fighting the system to do everything possible to keep it honest. It’s a constant struggle, and assholes do nothing to help. They’re just assholes. Is it still too funny, Ed?

  9. Ed

    Integrity is seeing things for what they are. “Government justice” systems have never worked and never will.

    1. SHG Post author

      Each case is individual, involves individuals and gets treated individually. Sometimes it works. Sometimes it doesn’t. Don’t be a simplistic, mindless drone on either side. And if you can’t help yourself, then hang out with other simplistic, mindless drones and not here.

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