Like most people who have watched the fatal beating of Kelly Thomas by Fullerton police officers, I was dismayed at a jury's decision to acquit two of them. Actually, dismayed does not quite cover it. Flabbergasted is more like it. It is hard for me to imagine how 12 people agreed that it was reasonable to view the appalling violence that Manuel Ramos and Jay Cicinelli inflicted on a pleading and apologetic Thomas as legally justified. At the very least, the verdict seems to reflect a disturbing deference to police, who too often get away with actions that would be universally viewed as crimes if carried out by someone without a badge.
Then again, I did not sit through the trial. I did not hear the defense dissect the video frame by frame, arguing that at every step police responded in a way that was appropriate given their training. Something similar happened in the 1992 trial of the Los Angeles cops who beat Rodney King. What looked like an obvious case of police brutality seemed more ambiguous to the jury after it was broken into its component pieces.
In both cases, I thought the jury got it wrong. But that belief, by itself, does not justify trying the defendants again in the hope that another jury will get it right. That's what happened in the Rodney King case: Two officers who were acquitted by a state jury in 1992—an outcome that triggered riots in the streets of Los Angeles—were convicted by a federal jury in 1993. It looked a lot like a justice system capitulating to mob violence. It also looked a lot like double jeopardy, which the Fifth Amendment notionally prohibits. It supposedly was not, thanks to the "dual sovereignty" doctrine, which sanctions serial state and federal prosecutions for the same actions based on the fiction that relabeling them makes them into something new.
The understandable outrage provoked by the Kelly Thomas verdict may likewise lead to federal charges, which his family would like to see. The FBI, which has been looking into the case since 2011, says it will now examine the evidence and testimony presented at the trial before deciding whether to charge the acquitted officers with violating Thomas' civil rights. But that sort of review cannot answer the question of whether federal charges are appropriate. Instead it will reveal whether federal prosecutors might be able to obtain a conviction, which is not the same thing. In the absence of evidence that the process by which Ramos and Cicinelli were acquitted was fundamentally corrupt, such that their trial was a sham—something no one has alleged—the federal government has no business intervening.
To try Ramos and Cininelli again in anticipation of a different result is the very definition of double jeopardy, no matter what the Supreme Court says. That sort of second-guessing invites arbitrary, politically driven prosecutions that threaten the innocent as well as the guilty. If it can be wielded against brutal cops you think should have been convicted, it can be wielded against defendants whose acquittals were entirely appropriate. The safeguards that defendants enjoy under our Constitution, including the ban on double jeopardy, do not always produce just results, but they are better than the alternative.
The original Reason TV story on Thomas' death: