The Worst 33 Minutes of Your Month: View the Kelly Thomas Video

You can get access to this video of the fatal Kelly Thomas beating — “murder” is a legal conclusion, so I’ll describe it just in the objectively undeniable terms of “fatal beating” for now — in a lot of places, but it belongs here too. YouTube suggests an age-restriction; we don’t monitor that, but we will note that this video is gruesome and likely to prove upsetting to viewers.

Time permitting, I’ll be writing about the Kelly Thomas killing later this week. Here’s a few questions for now, though, from the perspective of a lawyer (although not one who practices criminal law.) Note that answering them (or, though it’s more far-fetched, even reading them) could conceivably disqualify you as a juror, so choose whether to read on and respond with that caution in mind:

(1) What is your estimate for how common this sort of beating by police is, both locally and nationally? I don’t necessarily mean ones that end with the same fatal result, but simply ones where the police act in ways that seem unjustified and extreme under the circumstances?

(2) No amount of money can bring Kelly Thomas back to life, but monetary damages are one way that our society tries to offer some compensation to the next of kin — and to motivate the city to change its relevant practices.  There’s nothing wrong with seeking monetary damages in such a case; it’s part of how we police our system.  If this were the only evidence you saw in the trial, what amount of monetary compensation do you think you would find to be appropriate as a juror?  What if any role would Kelly Thomas’s own quality of life and prospects for future earnings, which you may be surprised to learn absolutely does have a role in wrongful death cases,  play in that decision?

(3) What do you see as being the responsibility of representatives of the city with regard to such a settlement? Should they deny even facts and inferences about the case that may seem obvious to many jurors? Should they keep silent with respect to issues of liability? Should they admit complete guilt outright on behalf of the agents of the city (which is what police officers are) who engaged in this activity? Should they do so without regard to whether those actions might move the amount of damages well beyond whatever estimate that you give in answering question (2)?

I think that some of the criticism of reactions by the City Council for appearing to think that the beating was no big deal is appropriate.  But many of the criticisms have also involved attacking council members and candidates for not making statements — in law, we call them “admissions” — that could substantially increase the damages award that (I predict) will eventually be in place in this case.

I’ve never represented any entity in a case where they were accused of anything like this, but if I were doing so, and were watching this video with my clients, I would absolutely tell them that while they could and should express their grief to the family, they should keep their mouths shut about commenting on the issues that would be coming up at trial.  I’d tell them that their salving their own consciences by making statements that might double or triple a damage award was selfish and unfair, because they would be paying almost none of those damages themselves.  I’d tell them that I knew that that might look horrible to people, but that that was a part of the job they had to embrace when they chose to become the legally responsible representative of the city.  I’d tell them that their energies should not go into admissions, but into instituting reforms.

I haven’t kept track of everything that the incumbents and the recall candidates have said with respect to this video and the legal questions arising in the case, but I wonder who among them would end up becoming, even if unwillingly, star witnesses for the plaintiffs should this go to trial.  I wonder whether this has even been a consideration for candidates in speaking about this issue — and, if not, why?

For now, I’ll take my own advice.  This video is sickening and painful to watch.  I offer my deep condolences to Ron Thomas and his family — and my support for those working effectively to minimize the probability that anything like this happens again.  I expect that there will be a huge award and I hope that it does motivate the changes in police procedures that meet that end.  I also hope that there’s a functioning city left to police when the legal battle has ended.

As a disclaimer: as readers know, I am a candidate for State Senate, but if I wanted to improve my chances of winning my race this is not what I’d write.  I’d jump with both feet onto the popular issue of condemning policy brutality in this case.  Politically, that’s an easy call — especially if one doesn’t bother asking the larger questions about all of the other cases that don’t get caught on video.

At this moment, though, I’ll put those political considerations aside.  I think that the moment calls for somber thoughtfulness — whether or not that is what we’ll see in the month ahead.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)