Police Abuse

Why the Cops Who Beat Kelly Thomas to Death Should Not Be Tried Again

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Reason TV

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:

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  1. They should, however, be punched repeatedly in the nuts.

    1. This would be an inadequate response for what they did to Kelly Thomas.

  2. Correct, the system failed us here but the answer to said failure should NEVER be to violate procedural protections from a sense of vengence.

    I would much rather see vigilante justice carried out on these two and then to weaken the double jeopardy protections we all share

    1. Concurrent jurisdictions. Simply must establish the federal nexus. Easier if Kelly can be proven to be “an insular minority.” Two distinct crimes in two separate but concurrent jurisdictions.

      1. Stuffed Llama is completely correct.

        1. That is true, but it is also the reason that there should be no (or very few) “federal” crimes. The only crimes mentioned in the Constitution (and thus the only ones properly cognizable by the federal government) are treason and the like; even serious crimes such as murder should be left entirely to the states. That would eliminate the entire “double jeopardy” and “concurrent jurisdiction” issues (as well as severely limiting the federal “war on drugs”, among other abuses). The federal criminal code should be almost completely abolished.

  3. I had this same thought. Even brutal, violent, retarded misanthropes like the Fullerton officers who beat Kelly Thomas to death are protected against being tried twice for the same crime. That right is protected for a good reason, and even when a jury blows it completely, we should never contemplate overriding it to pursue righteous vengeance. That leads down a dark path.

    1. I agree completely with the article turning its nose up at court rulings that it’s not double jeopardy when the sovereign shifts. The fuck it isn’t, and that’s just made worse as the federal government increasingly displaces or duplicates state law and law enforcement.

      1. Here’s hoping for non-ironic karma.

  4. As much as it drives me nuts that these scumbags got off, weakening double jeopardy protections opens the door for astounding abuses by the government, such as just trying people they’ve decided to fuck as many times as it takes to get a conviction; this is a power they would love to have. And it’s also the hallmark of a totalitarian system.

    Sometimes the system doesn’t go your way. Fuck, the vast majority of the time the system doesn’t go your way. But weakening one of the remaining protections against government abuse is not the solution. Better that 100 murdering cops go free than one innocent person be convicted.

    1. I took Criminal Procedure in law school, and case after case after case in that class were about guilty, asshole defendants. In some cases, the courts protected their rights. In some, they hated the defendants (or loved the state) enough to twist reasoning to allow convictions of those guilty assholes to stand.

      However, the last point aside, many of the landmark cases that extended or protected fundamental rights involved very bad, very guilty defendants.

      1. So in law school they never cover cases where the person was later determined to be innocent? If so, that explains a lot.

        1. I think that perverse incentives and lack of accountability for prosecutors pretty much explains it.

          1. Sure, but if the concept of “innocent person being railroaded” isn’t covered in law school, that is extremely fucked up and a disturbing oversight.

            1. No, it’s not that. We did have some cases with people who were innocent. But appeals tend to be by people who were convicted, and, even with the flaws in our system, a majority of those charged are guilty. Of course, even a person who is very likely guilty can and should walk if the state can’t prove that guilt.

              There’s also the fact that trial courts will sometimes allow bad shit to happen if they believe the bad guy deserves it, so the appellate courts often have to undo that damage.

              If anything, I’d say my law school leaned more towards the nobility of the defense counsel than the prosecutor, though experiences may vary.

              1. I’d say my law school leaned more towards the nobility of the appellate defense counsel than the prosecutor, though experiences may vary.

                1. Yeah, there’s some truth to that. Because appellate briefs are so much more academic and law professory.

                  1. I think it’s one of the major disservices that law schools provide their students. All of the reading and writing is geared toward appellate/federal practice so you graduate knowing how to write a brief but can’t compose a Complaint for Divorce.

            2. I think the point of landmark cases that involve POS is to show rule-of-law. The justice system ought to be applied equally so it shouldn’t matter that these people were obviously guilty.

              If one doesn’t understand the concept of “innocent person being railroaded” by the time they are in law school, I doubt a class is going to help.

        2. Maybe they will cover it in another 50 years. Law school curriculum is notoriously conservative. Although, some classes probably do cover it. You basically have two years of electives after your 1L so it’s bound to come up somewhere.

          1. What they didn’t do a great job of was presenting the libertarian perspective–that maybe the courts and the other branches constantly making extraconstitutional decisions wasn’t a good thing. We simply had to accept what the status quo was, period.

            My first Con Law class was taught by a libertarian professor, which was great. Probably the only one in the whole school. After that, it was either politically neutral professors or lefties.

            1. I think that’s probably true at most if not all law schools. I remember the odd look my Crim Pro professor gave me when I asked him if I really needed to know the 4th Amendment anymore.

              1. I made some snarky remarks like that, too. The big one was when I asked why we learned all of that Commerce Clause history when the current view of it is that it gives the federal government general police power, which the Founders expressly did not give the federal government. In effect, anyway.

                1. One of my Con Law professors was basically a Commerce Clause fetishist. Unlimited Federal power!

    2. Yeah. Fuck them and I hope they die horrible deaths. but you can’t retry them.

      1. Send them to Deming?

        1. As tourists, I suppose I should specify…

  5. Great points, Mr Sullum. This seemingly terrible breach of justice does not mean that double jeopardy should be ignored thereby weakening the rule-of-law even further.

  6. Like I said before, ever single member of that jury deserves to have a run-in with some power-tripping cop in the future. I’ll bet they’ll think differently if it’s them who get shot at or tasered or have their front door kicked down in a mistaken no-knock raid.

    But I agree with Sullum, they shouldn’t be tried again. What are the chances now that the Fullerton Police Department is held liable in civil court?

    1. I think what happened was the jury realized those things you mention would indeed happen to them if they found those men guilty.

    2. Considering the possibility of intimidation by cops in the courtroom, those people were potentially specifically trying to avoid just that if they voted to convict. If that was the case, the fault lies with the fucking shitheel judge.

      1. Yeah, it seems more likely than anything that they were in the middle of a run-in with a bunch of power-tripping cops when they were asked for a verdict. And they know what such a run-in can end up like.

      2. You’re assuming that the judge was not himself intimidated by the po-po. I don’t know. I’m just guessing, but I think that this is symptomatic of a much deeper problem in society.

        1. Why would the judge be intimidated? They’re on the same team with the same goal.

          1. Not neccesarily.

      3. This is why they should have switched that jury, with the jury in a different case in the next courtroom.

        1. And every jury should be drawn by lot, from a pool of volunteers, with no challenges.

  7. 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.

    I’m sure an audience full of uniformed policemen giving the jury the hairy eyeball when they weren’t heckling the prosecution’s witnesses had something to do with it.

  8. Why the two cops were acquitted. Comments from the local ABC news website reporting that Ron Thomas is filing a civil suit:

    Bob ? 12 hours ago
    Money grab from a father who kicked his mentally ill son out onto the streets. The mother filed a restraining order against her own son in 2010. They couldn’t lift a finger to help their son when he was alive, but they are quick to try to cash in on his death.

    Theresa ? 11 hours ago
    How is a civil suit “justice”? How is asking for money “justice”? It’s not! This makes the family sound like they could care less their son is dead and care more about making money. This is a truly selfish family and they should feel disgusted. His father did not care about his son one bit prior to his death. He abandoned his own son and now he wants to make money off of it?!? Despicable. It’s unfortunate that someone died but a civil suit does not grant justice at all.

    LITTLE GIRL ? 9 hours ago ?
    why didn’t parents commit him for treatment & get him off the
    street.Rotten Parents trying to make money on his death,their
    fault he is dead

    disqus_5mzWKSTg3O ? an hour ago
    If I was a citizen of Fullerton, I’d file a civil suit against the Ron Thomas for endangering my safety since he allowed a known criminal, his son, prowl the streets.

    Of course, my suit would have no merit, but it would bring heat on him and he’d go away. But speaking of no merit. This civil case should be dismissed.

    Not hard to find 12 people who think like this.

    1. Thanks for reminding me how bloodthirsty and obsessed with their own minute issues most people are, even with a video of a horrific beating staring them in the face. Asshole.

      1. I like to imagine that the 10th level of Dante’s Inferno would be these commenters accosted during a “routine traffic stop” so they could truly learn the implications of their worldview. Oh FSM, why can’t you actually exist?

        1. Are you making a funny? Because Dante’s inferno had only nine circles.

          1. I think he’s adding a 10th.

    2. Don’t discount that those commenters could be po-po or their families.

      Interesting how they think that parents of adults can just magically wave their hands and cause social services (or whoever) to issue a involuntary commitment order, cause bed space in a psych facility to become available, etc.

      1. magically wave their hands and cause social services (or whoever) to issue a involuntary commitment order

        Well, they are pretty clearly statists so this is hardly shocking. But it’s still disgusting.

      2. Exactly!

    3. Give em all two-week all-expenses-paid trips to Deming, N.M.

      1. Including $5k worth of proctological services?

    4. Why do people think that it is not possible to care about both justice and money?

      1. Or that they don’t care about the money for themselves, but know that a massive monetary settlement is the only way to give the taxpayers a wakeup call.

        Would be wonderful if they donated everything to a foundation, that would slap the smug right off the faces of Bob, Theresa and all those others.

  9. Many cases don’t even get to a trial

    “””A Torrance police officer who opened fire on a pickup truck during the manhunt for former Los Angeles police Officer Christopher Dorner was justified in his actions and will not face any criminal charges, the District Attorney’s Office announced today.””

    “”Prosecutors concluded that Officer Brian McGee “did not commit any criminal misconduct” on Feb. 7 of last year when he rammed David Perdue’s truck with a patrol car, then fired three shots through the driver’s side window”””

    “”””McGee’s actions are analyzed based on the totality of circumstances, which include McGee’s knowledge of Dorner’s previous threats and actions in the days and hours preceding these events, which gave rise to an atmosphere of fear and extreme anticipation,” Rendon wrote. “”

    http://www.myfoxla.com/story/2…..d-shooting

    1. In some ways not bringing those cases to trial is a good thing. That leaves open the possibility that in a future and more liberty and justice oriented society, that these cases can be tried, convictions obtained, etc.

  10. I AM TULPA AND I AM SMARTS
    JUREE NULLIFICOTION NOT SO GUD NOW, LIBERTARDS?
    LOOK AT ME I IS SMRT

    1. It sure would be nice if Tulpa and Bo started a blog together.

      1. It’s funny, earlier today I was reading the comments to a post on Bleed Cubbie Blue and thought this must be what it’s like to live in Tulpa’s head

      2. I was going to make a joke about “The Enemy Within” and how New Tulpa and Classic Tulpa were like Kirk being split–I’M CAPTAIN KIRK!!!–but then I realized they’re not two distinct parts of a whole, but rather near carbon copies of one another. I’m sure there’s a non-TOS episode about duplicates somewhere but I can’t bother to dredge my memory right now.

          1. Sorry, Hugh, I should have said I can’t bother to dredge my Memory Alpha right now. My bad.

            1. THERE’S ALSO THE WHOLE DATA/LORE DICHOTOMY BUT I GUESS YOU COULDN’T BE BOTHERED TO REMEMBER THAT EITHER HUH

              1. Data and Lore are nothing alike! Lore is cool and evil, and Data is a square. Like me and you.

              2. Are you fucking asking him to compare Tulpa to Data? Please fuck right off, Hugh.

                1. Often-Wrong has a broken heart, can’t even tell her trolls apart.

                2. Uh, nicole, both Tulpa and Data are pedantic humorless twits. It’s not the worst analogy I’ve seen, and I’ve seen some atrocious ones from Hugh.

                  1. Someone’s clearly jealous of Data’s sexytime with Tasha Yar. Or was it the Borg Queen you were after?

                    1. If you weren’t the worst, nicole, you would realize that Denise Crosby is no one’s idea of anything to get jealous about. Alice Krige is much better, but I’m into organic mutations, not mechanical ones.

              3. Ah Data and Lore, is there anything sadder then nerds getting sucked into the classic soap opera “evil twin” plot?

          2. I thought the name of that episode was Two Rikers Too Many.

            1. The unofficial name of every TOS episode is “One Riker Too Many”.

              1. Damn, that’s even harder on Riker than I would be. What does that make the unofficial name of every TNG episode?

                1. “One Episode Too Many”

            2. “My Two Rikers.”

            3. A Tale of Two Rikers

    2. Sweet merciful crap, did Tulpa actually claim that this was an act of jury nullification? That might be peak retard.

      1. He did indeed claim that, yes. It was the most Tulpa post ever. (Tulpa being a synonym for idiocy)

      2. Yeah, the verdict thread last night got Tulpical in a hurry.

  11. Agreed; they shouldn’t be tried again. They should, however, have their heads caved in with a baseball bat in a dark alley.

  12. …arguing that at every step police responded in a way that was appropriate given their training.

    I’m not sure how training and internal procedures trump the law again and again, but I do agree they shouldn’t be tried again. As much as I hate this injustice, I hate de facto double jeopardy more.

    1. That’s my question, Fist.

      Whether they followed their training is irrelevant to the issue of whether they broke the law, with this one exception:

      If they broke the law and acted against their training, you have a good case for escalating the penalties.

    2. Their police training is why the jury should have voted to convict in a few minutes. If you can’t train one cop (let alone 2 or more) to subdue a smaller unarmed suspect in less than 30 seconds, there’s something wrong with the training.

      Six armed “law enforcement” agents should not have had to beat the guy repeatedly, no matter how much he resisted.

      1. This. You lose the right to be called a “professional”–and all the privileges associated with that–if you can’t perform your job any better than a non-LEO, even with training and a utility belt full of non-lethal/less-lethal gadgets.

        I’m a pudgy, thirty-something codemonkey who only gets a tan where the monitor glare hits me, and ten years away from my last jujitsu class I can confidently say that I could subdue a schizophrenic half my size without killing him. Does that mean I can start as a Lieutenant?

  13. Double jeopardy is wrong. There was seemingly no justice in this case but I wasn’t there, etc. HOWEVER,

    [T]he “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.

    Not exactly. It’s based on the structure of our legal system where state governments and the federal government are all sovereigns. No relabelling. Everyone acknowledges that they are being tried for the same incident, but for different crimes as defined by our legal system, ie the state tries you for the state crime of soliciting then the feds try you for laundering the proceeds of those transactions (SLD’s apply, of course). There is no way out of this without removing the sovereign privileges of either a state or the feds either altogether or on a per-case basis. That would also require the state and the feds to coordinate on any given case to decide who got to try it; think of how that could play out. The state, wanting to protect its officers, could hastily convene a trial and mount a sham prosecution which is easily defended against.

    The only other way out is to do away with state sovereignity altogether and reduce the states to super-municipalities.

    So, you can shred the constitution any of a number of ways, but you’re still shredding it.

    1. There is no way out of this without removing the sovereign privileges of either a state or the feds either altogether or on a per-case basis

      You could remove all crimes from the federal books (except as noted in the Constitution). Let the states try all criminal cases as they are supposed to do.

      1. That would be a libertarian solution, but there could still be “double jeopardy” for civil rights violations such as this.

        Yeah, treason and constitutional rights violations should be the only federal crimes.

        1. But honestly, I wouldn’t care about that kind of double jeopardy. It is possible to commit two separate crimes at the same time, and even at a single level of sovereignty, people are frequently tried for multiple crimes (and I’m not talking about giving the jury options to convict for murder or manslaughter or something). If you actually committed a federal crime (in libertopia, where fedgov has no general police power), Minarchist Nikki is fine with trying you for that in addition to and separately from your state-level criminal trial.

          1. And my understanding is that the feds wouldn’t try them for assault or murder, but for violating his civil rights.

        2. I don’t know if it is a libertarian solution or not. But the constitution makes clear there are only three federal crimes – treason, piracy, and counterfeiting. The “civil rights violations*” are in my opinion something that should disappear along with the federal crimes.

          *you would have to define what you consider a civil rights violation. If it is a violation of the BoR, then you would have to handle that through the court system. But most civil rights (speech, guns, press, association, etc) do not get you jail time for violating.

          1. “the constitution makes clear there are only three federal crimes – treason, piracy, and counterfeiting. The “civil rights violations*” are in my opinion something that should disappear along with the federal crimes.”

            The 14th Amendment gives the federal government the power to pass legislation to enforce it.

            1. The 14th Amendment gives the federal government the power to pass legislation to enforce it.

              Enforce what? The provisions of the 14th Amendment. It does not add any new laws – murder, rape, etc. – to the list of federal crimes. Basically it says that the federal government can look at what the state did and determine whether or not they erred. As section 1 says:

              All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

              1. That is correct, to enforce the rights guaranteed in the 14th. The officers charged in the Rodney King case were not charged with some federal assault offense, but with “deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race.”

                http://www.law.cornell.edu/uscode/text/18/242

                If federal civil rights charges are filed in this case it would be similar.

                1. …shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section…

                  Isn’t the bold language assault? Can you or another lawyer explain to me what civil right was violated, that wasn’t covered in the original trial?

                  They beat a man to death and were tried for murder. They got off (wrongly). If you are saying that the trial was conducted so as to abridge the rights of the victim, then I could see where the 14th could be invoked to right a wrong. But I can’t see where you can say that just because the verdict is wrong, you can try a person again.

                  1. Police use of force is governed by the 4th Amendment, an excessive use of force an violate the 4th as an unreasonable seizure.

                  2. It’s a very lawyerly distinction. The federal statute isn’t about assault per se, it’s about civil rights violations and if those violations include assault then it’s a sentence enhancer.

                    1. it’s about civil rights violations

                      What exactly is the civil right that was violated that wasn’t covered in the state trial?

                      The 14th (Section 1):

                      No State shall make or enforce any law which shall abridge the privileges or immunities…

                      nor shall any State deprive any person of life, liberty, or property, without due process of law…

                      nor deny to any person within its jurisdiction the equal protection of the laws.

                    2. The cops, acting as agents of the state deprived him of life, liberty, and property?

                      I’m not sure.

    2. It’s based on the structure of our legal system where state governments and the federal government are all sovereigns.

      If only state governments were treated as sovereigns.

      1. They are. Or do you mean as completely independent nations conducting their own foreign policies, etc?

  14. It would be interesting to hear more about the doctrinal questions. Generally, the “alternative” to double jeopardy is jointer of charges. We don’t have a system where we join federal and state prosecutions, but we probably could. Of course it looks like the Feds are only prosecuting because there was a loss in state court, but if they prosecuted in cases where people were already convicted we’d just cry waste, right? If we don’t want the Feds mixing in state courts though, and the author is right that there’s a double jeopardy problem, maybe the problem is expansive federal law where this is a federal crime to begin with. By legislating this way, congress puts prosecutors in the position of having to choose between “violating” double jeopardy protections, interfering in state courts, or wasting time prosecuting cases where citizens feel punishment has already been properly handed out.

    1. That would be incredibly complex, Ken. For example, do you follow the state rules of criminal procedure (defines admissibility of evidence, etc) or the federal rules of criminal procedure? Also, the state would have to grant the feds power to enforce its laws, or vice versa.

      As long as their are multiple sovereigns, you’re going to have this.

      1. Not necessarily, it works in civil cases and most state criminal procedure mimics the feds.

  15. The feds shouldn’t be able to re-try these guys, but they should be able to investigate the court that heard this case and look for signs of corruption. If you want to fix the problem of corruption in the justice system, go to the source.

    1. But what if there was no corruption? What if no actual crime was committed under state law?

      1. Then the bastards go free until some good samaritan caves their heads in.

  16. I agree that double jeopardy should not be risked in a re-trial of these individuals. Therefore, I propose this alternative:

    The Fullerton Police Department should be brought up on federal RICO charges for juror intimidation resulting from uniformed police officers taking photos of jurors during the verdict reading.

    That is all.

    1. Can someone point me to where this has actually been reported? Somewhere that’s not, like, the H&R comments section? Not saying I don’t believe you, I just want to slam normals with it.

      1. They can go witness it themselves on a daily basis in any criminal court in the country.

      2. I was simply going off the H&R comments thread. I did not view it anywhere else. My potential RICO charge is entirely dependant on the veracity of my fellow commenters.

      3. According to the OCWeekly, the picture posted on Twitter came from a live broadcast feed:

        It was later determined by investigators the photo was taken from a live broadcast feed and posted by someone outside the courtroom. A TV cameraman had accidentally caught a quick glance of the jury while adjusting equipment, City News Service reports.

        http://blogs.ocweekly.com/nave…..berg_t.php

      4. And while I’m going through the OCWeekly site, here’s the report of cops hissing during the trial.

        The Ramos/Cicinelli loyalists (including off-duty cops) that pack one side of Judge William R. Froeberg’s Santa Ana courtroom each day responded by shaking their heads and hissing.

        http://blogs.ocweekly.com/nave…..lerton.php

        I don’t remember who it was in the other Kelly Thomas thread that mentioned the OC Weekly’s coverage of the trial or who mentioned the cops hissing.

        1. Thanks, DEG.

  17. This case truly shocked me. I thought for sure this would be an easy conviction.

  18. WRT the potential civil suit that The Rt. Hon. Serious Man, Visc refers to above.

    We all know that it would be the taxpayers who would foot the bill for this, not the cops or the politicians.

    However, until there is a civil judgment that actually bankrupts a city or their insurers start saying “we will not insure you for police actions unless you create an effective, independent review board”, this pattern will continue.

    1. ^This.

      Alternately, justice could be served by stripping the cops of their immunity and letting them mount their own defense and lose everything in the civil suits.

    2. insurers start saying “we will not insure you for police actions unless you create an effective, independent review board”

      “That’s a nice license to do business you’ve got there. Be a shame if something happened to it.”

      1. I’m pretty sure the large companies that do that kind of insuring could call the bluff, as long as it’s a small city doing it.

  19. Its absurd that they got off. I live in a downtown area plagued with homelessness and on a daily basis, I find myself walking past a schizophrenic homeless person babbling incoherently to himself.

    Never once have I felt threatened, and I am not armed with a gun, maglite, and billy club nor do I have the ability to quickly call over 20 similarly-armed buddies to “protect” me should anything uncouth occur. Not once have I felt a need to beat the living snot of any such homeless man, to the point where he would plead in agony for his father to rescue him.

    Its times like this that make me wish against all evidence that the naive and child-like proposition of karma were indeed a reality.

  20. I recall the cops in the Rodney King beating being tried a second time after a first-time acquittal. Fuzzy on the circumstances so there may be some nuance I am leaving out, but it’s not like second trials have never happened.

    1. They happen all the time. That doesn’t make it right.

    2. IIRC they were not acquitted the first time but rather the trial resulted in a hung jury.

  21. I’ve been looking and I cannot find a single peep by Ron Kuby on this one. Adam Carolla, yes, but no Ron Kuby.

  22. I can not agree.

    We have a federal system. The entire reason we have federal civil rights charges is because after the Civil War state and local law enforcement refused to protect, and in many cases actively threatened, the basic civil rights of their citizens. Local law enforcement, prosecutors, defense attorneys, judges and juries were often sympathetic to these violations and made sure they went unpunished. The federal government had to pass federal civil rights legislation and send the 14th Amendment for ratification to address this. I see no reason to assume that state and local governments do and can not act this way now or in the future.

    1. The problem is they do not begin their investigation until after the state level trial is over.

      What is needed is an immediate investigation that ignores the state DA and local police rules and files charges (when appropriate) immediately.

      If these cops violated someone’s civil rights there is no reason to wait to see if they cops are convicted of assault before filing civil rights charges against them

      1. Sure there is. You wait to see if the local government can appropriately oversee its own. If it can’t, then the purpose of the civil rights laws is invoked and the feds are justified in stepping in.

        1. Not a prob, Adam. The federal investigation proceeds and charges are filed immediately. Then, the case is put on hold pending the outcome of the state trial. If the federal judge and prosecutor agree that justice has been done at the state level, the federal case is dropped.

          Otherwise, it begins promptly after the “not guilty” verdict is read.

  23. I can not agree.

    I’m shocked!

    1. Looks like I am hardly the only one, sorry to ruin your narrative there.

  24. If there is evidence that the prosecution threw the case, or the local police intimidated jurors or influenced the court, then I think federal charges are quite appropriate. That was the underlying purpose of the 14th amendment and the civil rights laws- to prevent local authorities from judging themselves innocent.

    1. What we’ve heard about the conduct of the trial is that the courtroom was packed with uniformed officers who were quite vocal in their views on the various witnesses and so forth.

      Assuming that’s true, this trial is irrevocably tainted and the judge should be disbarred. I’m not sure what options the prosecution has to appeal a “not guilty” jury verdict, but if they can, they should get this overturned on appeal and get a new trial.

      1. Oh, and every single cop who went to the trial in uniform should be tried for obstruction of justice and jury tampering.

        1. Shame on the judge and the police captain for allowing that. Official action would though, of course, be better than shame.

      2. I agree, although all of I’ve heard about that has been in comments on this board, so I’m not exactly convinced any of this happened. If it did though, then I have no problem with the feds stepping in. If it was a fair trial with a vigorous prosecution, then the feds should stay out.

        1. I posted links up above to an OC Weekly story about cops hissing at certain parts of the trial. I’m not the only one here that has looked at OC Weekly, I heard about the OC Weekly stories from another poster (whose name escapes me, sorry) on another Kelly Thomas thread.

          1. Thanks. Didn’t notice. I’ll check it out.

      3. Not to mention the expert who said he didn’t die because of the cops.

  25. The feds should absolutely bring a case here.

    Against the judge and the prosecutor, for conspiring to obstruct justice via their conduct of this trial. Then we could have a thorough airing of exactly what the judge allowed to happen in the courtroom and exactly why the prosecutor didn’t aggressively pursue this case.

    I’m a little torn on the cops. On the one hand, they were tried for their state law violations, so that’s closed. OTOH, they have never been tried for violating the civil rights of the deceased. And (this is important to me), they are agents of the state who can and should be encompassed in federal laws enforcing the 14th. The only real issue, to me, is the highly technical one of whether federal civil rights claims must be joined with state criminal claims in a single unitary trial. I have a hard time getting too exercised with having two trials, for separate charges that are conceptually quite distinct, brought by separate “sovereigns”.

    1. If it’s not a re-run, sure. I mean, it’s not like you can’t sue OJ for civil damages even if he walks for murder. Ditto if the federal claim is distinct from the state claim. It’s when the charges have essentially the same elements that I get uncomfortable.

    2. That’s still an option, and wouldn’t involve double-jeopardy for anyone. But it also wouldn’t create a disincentive for the cops.

      1. One disincentive is that sovereign immunity can be stripped for civil rights violations.

        So, there’s that at least.

  26. If I were Kelly’s parents, I’d be looking into renting a billboard for an ad featuring the mugshots of the two cops and their names, with some text:

    WARNING: These men beat my son to death, but are on the streets today. If you see them, use extreme caution.

    1. The cops would view that as a badge of honor.

    2. I would change it to “If you see them, use no restraint”.

  27. Then if a corrupt, filthy justice system frees two perverted murderers like these cops, you have to abandon all hope of justice? Or should the people prosecute the damned jurors and the judge and the court that released them?

    This is stupid, they (the murderers) must be in jail forever. What is allowed to the cops in this country is absurd and the one’s that are making this sacrifice don’t even get as reward to the be in the safest country in the world (not even close!).

  28. I think there is a basic confusion here. It is one thing to have a federal murder, robbery or rape statute and prosecute someone who has also been prosecuted, and acquitted, for violating a state murder, robbery, or rape statute. But when ‘the feds’ bring ‘civil rights charges’ against people acquitted such as in the King affair they are charging under a law authorized by the 14th Amendment which allows prosecution of state actors who violated a citizens constitutional rights, privileges, or immunities. The first naturally strike double jeopardy concerns, but the second are just federal policing of the federal rights of citizens violated by state and local officials.

    http://www.law.cornell.edu/uscode/text/18/242

    1. I’m not confused about that. My issue is when the state and federal government are trying people for the same crime, with the same or similar elements. Of course it’s not a problem if the crime is different–say, a civil rights violation–or if the charge is of a different kind, like a civil charge for wrongful death.

      1. If a person is acquitted of murder at the state level, and the federales charge him with infringing his victim’s civil rights by depriving him of his life, how can this be right? Absent legitimate self defense, the crime of killing another person has to.be.commited for the charge to make any sense. If he has already been acquitted of murder, he must have either successfully argued self defense or argued that he was not the killer (assuming evidence of an actual killing).

        Not a lawyer, but the logic seems to.make no sense. If there were no Federal defense allowed based on self defense, that’s another thing.

        1. My understanding is that there are different burdens of proof between criminal and civil proceedings.

        2. To simplify greatly, our black-robed masters have held that the prohibition against double-jeopardy only applies to individual sovereigns. Each particular sovereign with jurisdiction gets only one bite at the apple, but if Sovereign A and Sovereign B both have jurisdiction, both can prosecute independently even if the prosecutions arise out of exactly the same set of facts and circumstances.

          You’ll notice that this distinction is found nowhere in the actual text of the Constitution.

          1. ^This. Boyd and Malvo, the beltway shooters from 2001, got the *&^%$#@! prosecuted out of them in multiple jurisdictions and by the feds. Some of those prosecutions were for the same acts, so they were basically like pinatas.

            1. In fairness, I believe that part of that owed to the fact that some of the murders occurred in DC while others occurred in Virginia and still others occurred in Maryland. Those prosecutions didn’t implicate the provision on double jeopardy because they were different criminal acts in different jurisdictions.

    2. There is no “basic confusion.” You’re just hung up on a legalistic distinction that has no relevance to the overall point that Sullum is making.

      Yes, according to black-robed political appointees who are frequently former prosecutors, a federal prosecution for violation of federal civil rights law is technically different from a state prosecution for violation of state criminal law even when both prosecutions arise out of exactly the same set of facts and circumstances, and thus doesn’t implicate the constitutional prohibition against double jeopardy.

      Outside of the Ivory Tower of Pedantry, it’s a load of horseshit.

      1. Apart from different elements to prove, one of the ‘technicalities’ is that federal prosecution for federal civil rights laws applies particularly to state officials who violate civil rights. I would think that not just a silly technical difference might be an important one to libertarians.

        1. And the particular civil rights violation here was Kelly Thomas’ right not to be randomly beaten up and murdered by government officials. It’s a murder prosecution in Fourteenth Amendment wrapping paper.

          One of the things you might figure out once you grow up and become a real lawyer, Bo, is that the formalist distinctions that much of our professional work hinges on don’t just sound insane to laypeople; they genuinely are insane. One of the hallmarks of a good attorney is the ability to say to a client, “Yes, our argument is a load of horseshit, but it’s the law, so go with me on it.”

  29. The system worked. By which, I mean the system is designed to produce a result, and it produced a result. It’s the “justice system;” by definition, any result it produces is justice.

    Only a fool could look at this system and say it is designed to produce justice. But it produces results that are called “justice.”

  30. “Of course it’s not a problem if the crime is different–say, a civil rights violation”

    Mr. Sullum though explicitly points to just that as a double jeopardy concern.

    1. Depends on how much the elements of the crimes overlap. Of course, this is all hypothetical, because there is no double jeopardy, legally speaking, even if the feds try them for the exact same crime.

      1. This gets to me. I was told in high school that my ability for logical thinking would make.me.a.good lawyer. The more I.learn about the legal system, the more I think it would just drive me to despair.

        1. Well, there’s real-world logic and there’s the logic within a contained system. Law has a kind of logic, but it’s an artificial logic. So things that make no fucking sense whatsoever exist within the law.

          1. This +1000. It’s a far pithier way of saying what I was trying to get across to Captain Pedantry.

          2. And everywhere within it.

            According to the City of Albuquerque Zoning Code, “Inoperable Vehicles” may not be parked on the street, on the yard, or in a driveway.

            A vehicle that is missing a window is considered to be “an inoperable vehicle” for the purpose of this part of the code.

            So, when I had a K-5 Blazer (the one with the removable top) and it had one of the windows in the removable top broken out, I got a nastygram from the zoning board telling me that I wasn’t allowed to store “inoperable vehicles” on my property. This, in spite of the fact that according to the Motor Vehicle Code, there’s nothing illegal about that vehicle, and I was driving it to work every day, so it clearly wasn’t actually “inoperable”.

            Removing the top, and therefore, removing the empty window-frame, turned the vehicle back into an “operable vehicle”.

            There is one place on your property where you may have an inoperable vehicle, and that is “inside of a garage”. For the purposes of the code, “under a carport” (and yet, of course, still fully visible) counts as “inside of a garage”.

            It drives me up the fuckin’ wall.

  31. I’m sure this was a great post, but as I choose not to look at that disgusting picture of the victim which H&R has displayed at every “opportunity” — it must be dozens of times in total by now I chose not to read the post.

    1. Without the widespread dissemination of that photo, there would not even have been a trial in the first place, so IMHO, they could never show it enough.

    2. Wow, brec, you have my deepest sympathies for having to see a still image of a person beaten to death by police who were subsequently acquitted. That must have really ruined your day. Ultimately, the real tragedy here is that you saw something disturbing, and I think that’s what should be addressed.

  32. I don’t want to see them subjected to another criminal prosecution.

    I do, on the other hand, want to see them sued into absolute penury by the family. I want every fucking nickel these assholes ever earn for the rest of their worthless lives to go into the pockets of the Thomas family as compensation for Kelly’s wrongful death.

    1. i would be down with that. Let them spend their lives begging on the street.

      1. Where, if there is any justice in the world, they’ll experience the New Professionalism up close and personal.

    2. But inevitably someone would find a way to setup a support fund for them that couldn’t be touched by the judgement.

  33. There are other ways to “try” people, other than court.

  34. Dual Sovereignty doctrine? Is that what they’re calling Federal-State dichotomy these days? It’s not a doctrine, like the imaginary, “Bush Doctrine” but established law for a long, long time.

    Recall the south when stabbing, skinning and murdering a black didn’t even warrant a ticket. Federal intervention was necessary.

    In the Rodney King affair, where the media contributed to the climate of anger by replaying ad infinitium the beating without context, where the future of liberalism was demonstrated by LA on fire, the federal court got it right in that the subjugation of King by the police went out of control. dd

    Not watching your video which is more a discussion (not very in-depth) of the case and citizen surveillance, I watched the beginning of the incident. The initial LEO didn’t do a very good job in my opinion, as he used bullying more than intimidation after the suspect complied. He as mouthy guy, but that goes with the territory. From there, the whole thing spun out of control.

    He deserves sanctions, if not outright firing, and criminal prosecution. Like in the King case, it depends upon the involvement of each officer, when did they arrive, what did they know, etc. dd

    1. Totality of circs?

  35. This verdict is mindboggling. I cannot help wondering how the law was framed in the courtroom, and what sort of instructions and advice were given to the jury. And I will always believe the prosecution intentionally fumbled the ball.

    At the very least, in a country not ruled by totalitarian authoritarians, the transcript should be pored over word by word with an eye to the construction of a legal framework in which the police are not accorded presumptive immunity.

    Also, the validity of a claim of self-defense against cops up to and including lethal force should be made unassailable.

    And, of course police unions should be busted with the utmost prejudice and vigor.

    1. This verdict is mindboggling. I cannot help wondering how the law was framed in the courtroom, and what sort of instructions and advice were given to the jury. And I will always believe the prosecution intentionally fumbled the ball.

      The new media is falling down on the job by not even trying to explain to us how this verdict was possible, other than by hinting through omission that the jury must have been a bunch of cop-fellating psychopaths. There must have been *something* that the jury saw that made them think that the use of deadly force was justified. Why doesn’t someone in the media tell us what that was, so we can decide for ourselves whether that something was adequate to explain the verdict?

  36. Concurrent jurisdictions. Simply must establish the federal nexus. Easier if Kelly can be proven to be “an insular minority.” Two distinct crimes in two separate but concurrent jurisdictions.

  37. 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.

    So why isn’t someone trying to sum up the defense case for us, so we aren’t just left with the impression that the jury was taking bong hits during their deliberations? After the Rodney King verdict, a long article in American Lawyer did exactly that, going over the evidence, not with quite the detail with which it was presented to the jury, but with enough that the reader could conclude that it wasn’t quite the open-and-shut case that everyone thought it was after seeing the few seconds of the video that were played over and over again on TV.

  38. The only real difference between this case and Rodney King is that King was black.

    If Kelly Thomas were black, there would be riots in the streets today, and a retrial of the officers tomorrow.

    And I’d say the black population are the people who have it right.

    Cops’ immunity makes them so unlikely to be charged with anything, no matter how guilty, that it’s idiotic to grant them the benefit of due process rules that are supposed to apply to you and me such as double jeopardy. That’s fighting with one hand tied behind our backs.

  39. I am not an attorney, but since a person deemed innocent by a jury can later be determined to be guilty and imprisoned, why can’t the reverse be applied to these two murderous psychopaths? The jury has said not guilty. Aren’t there any exceptions to double jeopardy in obvious guilty cases such as this? What if the jury is retarded, uneducated, fanatical right-wing religious nuts, as in this case? What if the judge is a psychopath, as in this case? Surely, these components have to be looked at again.
    Seriously, I am very disappointed in Reason Magazine for taking this stance. There is something insidiously wrong about this whole event that is being hidden from the public. If double jeopardy is the final reason these pigs got off, there must be a legal exception in cases like this.

  40. I think there is a very fundamental difference in re-trying a civilian at the federal level, and re-trying an agent of the state. I think the latter is warranted, and doesn’t constitute double jeopardy, but is part of the federal goverment’s duty to protect its citizens from the actions of the state. Especially if these officers were acquitted on the basis that their actions were “consistent with their training”. That would almost mandate a federal trial.

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