Hang on — *what exactly* did Jay Cicinelli’s attorney Michael Schwarts say about Kelly Thomas “killing himself”?
The OC Weekly posts its most popular article of the past week on (at least some) Sundays; this week it was Scott Moxley’s provocatively titled report on the first day of the trial in the Kelly Thomas killing: “Fullerton Police Lawyers: Kelly Thomas Killed Himself“.
That’s quite a headline. And it’s plausible to me that one or both defendant’s lawyers did say something like that. But I read through the article just now — and it’s not clear to me that they did. It’s also not clear to me what they meant if they did say it. So let’s take a look around.
Cicinelli defense lawyer Michael Schwartz admitted cops used force on Thomas but, despite him falling silent during the attack and lying in a huge pool of his own blood, he was medically fine when EMT’s put him into an ambulance.
…
Schwartz is asking jurors to declare that Thomas killed himself and police, his close companions during his final minutes alive, neither contributed to the death nor committed any criminal acts.
His line–delivered without cracking a smile–was that an “overexerting,” 37-year-old Thomas beat himself to death by struggling with concerned, compassionate officers.
“His heart couldn’t take it,” said Schwartz.
He later added, “A tragedy? Yes. A crime? No. Sometimes tragedies happen in this world.”
Putting aside that fatally “overexerting” oneself is by no stretch of the imagination “beating oneself to death,” what does the emphasized-in-the-original phrase “Thomas killed himself” actually mean? I’m not trying to reignite a feud with Moxley or to provoke Gustavo (as if I have to try); I’m really asking. Here’s a partial list of possibilities:
- He intentionally and from the outset wanted to provoke the cops to kill him — aka “suicide by cop”
- Once in the situation, he knowingly acted in a way that would inevitably lead to the cops killing him.
- Once in the situation, he recklessly acted in a way that made it likely that the cops would kill him.
- Once in the situation, he negligently acted in a way that would lead to his own death even if the cops didn’t want to kill him.
I’ll admit up front: this mapping excuses onto the different levels of what attorneys call mens rea — the level of intention behind an act — isn’t perfect. While I wouldn’t defend it in an academic paper, I think that it’s close enough to provide some insight into the question of what exactly the argument being made here is.
The claims lower on the list get easier to prove — but they are also less likely to exonerate the accused. I’m interested, not as a criticism of the author or copy editor, in knowing what their claim actually was. (And, of course, this is the opening statement that is absent from the media pool video thanks to the dispute about whether the DA’s office was entitled to the feed, so it’s hard to check.)
When I read the headline, my understanding was they the attorneys were arguing that Thomas essentially committed “suicide by cop” — where (the story goes) someone feeling suicidal intentionally puts themselves in a position where they will be killed by a cop — because that’s more acceptable to society, relatives, or God than actually committing suicide. If others didn’t get that sense from the headline, that’s good — because I don’t see any evidence from the story itself that that’s true.
The “knowing” argument would involve Thomas saying “I’m going to keep struggling to get you off of me even though I know that it will likely lead to my death.” His desiring freedom, but accepting the prospect of dying as the price of fighting for it, is a little more plausible — but also I don’t see much evidence for that sort of calculation. First of all, until Cicinelli jumped into the fray, I don’t think that Thomas (even if he were thinking rationally) would have expected to die if he didn’t stop struggling — and after Cicinelli shocked him and started hammering his head I don’t think that we can say that he would be thinking rationally at all. If his reaction from that point on was instinctive, then it doesn’t excuse Cicinelli’s actions (if otherwise unnecessary) for putting him in that situation.
The “reckless” argument is that Thomas didn’t make the above mental calculation, but that his struggling created the likelihood that the cops would kill him. In some ways, this seems like the most likely explanation for what the attorney said — but in that case I don’t think that the phrase “Kelly Thomas killed himself” is appropriate. It’s also not clear that it exonerates the cops: if Thomas had the right to try to escape when they were holding him down (or even crushing him) — arguably itself a negligent act on the part of some or all of the police — then I’m not sure that this clears anyone of manslaughter.
The “negligent” argument (which presumes that Thomas had some duty to himself, to keep himself alive) seems even less like Thomas “killing himself.” This would suggest that while someone else might have survived in this situation, Thomas himself was “responsible for his death” because he had an enlarged heart (or whatever) meaning that he would not be able to survive the exertion of the struggle to free himself from those assailing him. In a sense, I guess that that could count as “killed himself” — pretty much the same sense that someone who played a game of pickup basketball despite being out of shape could be deemed to have “killed himself” due to an ensuing heart attack — but that’s really not what I got from the headline.
It also doesn’t seem to exonerate Cicinelli. If Thomas was depending on his (even compromised) mental faculties to guide him through this perilous situation, Cicinelli’s tasering him and then beating him in the face took away whatever ability he had to respond in an appropriate way — because at that point he was clearly fighting for his life and the frontal lobe cedes control to the primitive midbrain. (As an analogy: if Cicinelli and Thomas were standing with Thomas’s back to a cliff and Cicinelli started firing at him and Thomas backed away in a panic and fell off the cliff, I doubt that we’d say either that Thomas killed himself or that Cicinelli was not guilty of manslaughter — unless his action was otherwise justified (most likely by self-defense.)
I wish that I had time to attend and follow the Thomas trial — but I don’t. I would like to understand what the actual argument is about, though — and I don’t. It still seems to me to be a matter of whether Cicinelli truly had reason to escalate the situation to the point where it became impossible for the pile of officers to extricate Thomas from the situation. Whether or not Thomas had an enlarged heart doesn’t seem to be the critical point; if Cicinelli was wrong to jump in there and escalate the police reaction — as well as, if I recall correctly that this was him, stand on the bumper of a car pressing down with his back against another officer to increase the amount of force being used to hold Thomas down — then Thomas’s physical condition doesn’t seem to matter.
Even if Thomas (arguably) wouldn’t have died if he hadn’t struggled, that’s not the same as “killed himself” — and it’s not clear to me that, by saying that Thomas was unusually vulnerable to his own exertions, Cicinelli’s attorney was even making that argument. In my view, there’s a huge difference between “was in some way responsible for his own death” (for example, by struggling) and “killed himself.” I hope that the Weekly or others will clarify what the argument was.
Their claim is that he deserved it and his death was the inevitable outcome of poor decisions spanning two decades. That he had it coming and that the worth that society should assign in defending the value of his life is negligible in comparison to the lives of good, honest, law abiding family men who are heroes.
They’re just going after the jury in hopes of finding one or two people who agree that morality is relative based upon your social standing.
You’re correct regarding the big picture. But I’m focusing here on Schwartz’s specific (supposed) assertion that “Kelly Thomas killed himself.” I doubt that (if he said it at all, as opposed to its being a possibly misleading paraphrase) that was a reference to Thomas having made “poor decisions spanning two decades.”
Bloviator: Please stick to what you know—bloviating. But at least history now knows that the Bloviator is on the Dana Parsons side of the world.
I wonder: do you realize that every time you dismiss an analytic piece as “bloviating,” you come off as thin-skinned, desperate, and addled?
You’re the nominal editor of the infernal rag; you explain what was meant.
For somebody not wishing to start a feud with the Weekly crew you sure went way out of your way.
The headline assertion is sensational, but is essentially a sarcastic distillation of the defense’s attack on the victim. Of course they will stay away from the fact that Thomas was mentally ill and the cops knew all about Kelly.
We’ve seen it from all the knee-jerk cop defenders:
Drugs were involved. What, clean? Well, decades of drug use (unverified but we can say it anyway) gave the miserable droogie an enlarged heart.
He willfully disobeyed (il)legal commands. He asked for it.
He was willfully aggressive and fought (even though it looks like he was attacked and was fighting – for his life) so he asked for it.
Not wishing to “start” a feud? Where ya been, guy? This started with my backing up Vern’s “Righeimer fluffing” accusations two years ago.
I don’t disagree with your last four paragraphs. I do disagree with your second one — which has to do with the Weekly’s coverage, not with the facts themselves.
Some headlines can be dismissed as “sarcastic distillation.” For a news story appearing in the largest OC online venue without a paywall, based on the presence of a skilled and experienced trial reporter like Moxley, I expect to get a sense of what the defense said — because, shockingly enough, that matters — about what Thomas did.
This seems like a problem with the headline rather than with the story — but it’s a significant problem. If “Kelly Thomas killed himself” means only that the defense said
rather than
then I really want to know that.
One or both of these defendants could be acquitted, David. If that happens it’s going to be very important (before the County, and Fullerton in particular, explodes in recriminations) to be able to figure out why the jury did so. Sensational and sarcastic headlines, if that’s what this was, don’t help — and undercut the value of the reporting.
By Righeimer fluffing are you referring to the allegations of being setup by police unions and/or private detectives?
No — the reference was to back when Vern was chiding the Weekly for polishing Riggy’s apple.
Haha … early 2011. The beginning of much desmadre. http://www.orangejuiceblog.com/2011/03/the-once-great-r-scott-moxley-fluffs-jim-righeimer/
A year or so later Scott began to be a lot more critical of the CM labor-basher, and I wrote “I can no longer in good conscience call Moxley a Riggy-Fluffer.” Although he still is OFTEN a dick.
And more: I had missed Moxley’s report from the courtroom that had been published on Thursday, which the Weekly just added as a reply to their own post, entitled “Coroner Testimony Crushes Cop Lawyer Claims That Kelly Thomas Killed Himself.”
http://blogs.ocweekly.com/navelgazing/2013/12/kelly_thomas_fullerton_trial.php
It’s clear from that report that Moxley isn’t going beyond saying that the defense claim is that “his heart gave out as a consequence of the struggle with cops.” I highly doubt that position, but it’s a damn sight different from (and less offense than) the implication that he, in effect, committed suicide.
It’s clear from the comments that many are missing the facetiousness, if that’s your defense of it.
The Weekly has a good trial court reporter there and a huge story, with its competition (presumably) behind a paywall. They don’t have to sensationalize it. As a consumer of news who is (or would like to be) depending on them, the sensationalizing just detracts from the value of their product.
(It’s also grating when they portray Ramos’s complying with department policy and consenting to have his minor wounds photographed at the crime scene as somehow boo-hooing about boo-boos. I have plenty of problems with what Ramos did that day, but that’s not one of them — and going for the cheap shot there is counterproductive.)
Cheap shot? Hardly. The cops were getting their scratches ministered to by paramedics while Thomas lay in the gutter, his last oxygen gurgling up through a blood-choked airway.
That image is perfectly concordant with the attitudes, prejudices and preferential treatment of our public safety servants and the FPD culture in particular.
Ramos was asked to follow FPD policy regarding documenting injuries and he did so. As a criticism of the FPD’s having this policy rather than of Ramos for following it, it makes some sense — but it’s both presented as and likely to be taken as the latter.
“One or both of these defendants could be acquitted”
I wouldn’t be the least bit surprised.
Ramos was overcharged, Cicinelli was undercharged. I’ll be surprised if Cicinelli is acquitted — but not shocked.
Well, many cynics claimed the case was designed to fail. In any case OC juries don’t convict cops. That might change if the DA started getting tough with abusive cops who perjure themselves with impunity (see cases of Eddie Quinonez and Veth Mam).
“Well, many cynics claimed the case was designed to fail. In any case OC juries don’t convict cops”
I find this line of questions interesting. As it has been discussed before, but at the root, who, why and how could this be done?
The answer begins and ends with the District Attorney himself. And who could possibly have the muscle and desire to “fix” this? The FPOA perhaps? this is way bigger than hijacking the proceeds from the soda pop machine, or even tailing and framing a Costa mesa Councilman, or tracking with GPS the same. This is a public employee union blackmailing, pressuring, convincing a sitting District Attorney to throw a murder case. How is that possible?
If even remotely true we have bigger problems than Dianne Harkeys G4 and Michele Martinez’s sushi fundraiser (although I still question the $180 per hour massages!).
Point being is there are few scenarios where this could be plausible, possible. But………….
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Typo Monster strikes again:
“but accepting to prospect of dying…”
Thanks. Fixed.
Odd that he was actually 220 pounds and not 120 pounds? He’s never ever been diagnosed as Schizo and now that word isn’t being used at all, however, it was used in every sentence before?
Agree. They may both walk in this but at best Cici will get a minor charge and get probation.
Fight of his life was key, and now that’s he’s 220 pounds it was a fight just as the video shows.
Thomas was skinny as a rail. Maybe he weighed 150. The left side of Ramos weighed more than Kelly.
The biggest part of the problem is that the Fullerton cops were so out of shape they couldn’t even subdue the man they coerced into flight. Shameful.
Scratch that. They did subdue him. Permanently.
See, my view on that is different. Ramos and Wolfe did subdue him — and I think that had no one else arrived it would have been resolved reasonably quickly without grave harm to anyone, and become a garden-variety civil rights violation that got no notice.
Then Cicinelli got there….
No. The first two stated beating him up.
You mean after they had brought him to the ground, right? A cop does get to use a certain amount of force to do that (notwithstanding that the arrest being fleed may later turn out to be a civil rights violation.) but my recollection from the video — and it’s been a while — is that after that there was a long period when Thomas had been subdued and they were on top of him trying to get him to be able to move his arms so that they could cuff him. IIRC, things had become relatively under control — which is not to assert that justice was being done — until Barney Fife showed up.
Supposedly there was kicking and punching from the get go.