The videotape was disturbing to watch.
Shown in open court at the preliminary hearing of two Fullerton police officers charged with homicide, it captured the July 2011 questioning and brutal beating of Kelly Thomas, a mentally ill homeless man, outside the city's bus and train depot; Thomas died five days later. The 33-minute tape, recorded by a stationary surveillance camera, had been augmented with synchronized audio from recording devices worn by the officers.
On the tape, Officer Manuel Ramos confronts Thomas, 37, who is shirtless and carrying a backpack. Approaching Thomas outside the station, Ramos comments that he has encountered him before. He orders Thomas to sit down on the curb and questions him about the contents of his backpack.
After several minutes of meandering interrogation - during which the plainly disturbed Thomas says he doesn't remember his name or the language he speaks - Ramos snaps on a pair of latex gloves. He orders Thomas to stretch out his feet and put his hands on his knees. When there is no immediate response, Ramos balls up his hands and asks, "Now, you see my fists?" Seconds later, he adds, "Well, they're getting ready to fuck you up."
When Thomas stands up and tries to run, a second officer strikes him with a baton. For several minutes the altercation continues off-screen. Then the tape shows a back-up police car arriving and as many as six officers piling on, beating Thomas with their fists, batons, and finally with the butt of a Taser gun. Thomas can be heard screaming for his father, crying out for help, and complaining that he can't breathe.
Paramedics arrive to find Thomas lying on the ground. According to a fire captain at the scene, his face and beard were covered in blood, his skin was ashen, and he was comatose. He was brought to the trauma center in critical condition, with a breathing tube inserted in his throat. Five days later, Thomas was declared brain dead and removed from life support.
The surveillance tape is dark and grainy; at times it's difficult to see exactly what the officers are doing. Even so, the pictures and audio are gut-wrenching. As the beating continues, Thomas repeatedly apologizes and begs for the officers to stop. When the tape finally ended at the May 2012 preliminary hearing, several spectators left the courtroom gasping and holding their mouths.
Weeks after the hearing, Fullerton's police chief took a medical leave of absence; he has since retired. Last September, Orange County District Attorney Anthony Rackauckas announced that Ramos, 39, would be charged with second-degree murder - an unprecedented move by the county against an on-duty police officer in uniform. Ramos and a codefendant, Corporal Jay Cicinelli, were also charged with involuntary manslaughter and excessive use of force under color of authority. Rackauckas took the unusual step of assigning the case to himself. (People v. Ramos and Cicinelli
, No. 11-CF2575 (Orange Cnty. Super. Ct.).)
Officer Ramos, a ten-year veteran of the force, is represented by John D. Barnett, an Orange County trial lawyer nationally known for his successful defense in another infamous police misconduct case.
In 1991, four white Los Angeles police officers were indicted on criminal charges following the arrest of Rodney King, a black construction worker who was beaten with batons and shocked with a stun gun before being taken into custody after a high-speed car chase. Despite evidence that included an amateur videotape of the melee, Barnett's client, Officer Theodore Briseno, was acquitted of all charges. A jury in Simi Valley also acquitted two other officers, but it deadlocked on an excessive-force count against the fourth defendant. (People v. Briseno, et al.
, No. BA035498 (Los Angeles Super. Ct. verdict Apr. 29, 1992).) A mistrial was declared on the deadlock - and within hours South Central Los Angeles erupted in rioting that would eventually claim more than 50 lives and cause over $1 billion in property damage.
In a second criminal case in 2004, Barnett again overcame a damning videotape. This time, he secured a dismissal for Jeremy Morse, a white Inglewood police officer, after two juries failed to reach verdicts on assault and excessive force charges against him for slamming a black teenager against the hood of a patrol car and punching him in the face. (People v. Morse and Darvish
, No. BA240316 (L.A. Super Ct.).)
Late this month in the Kelly Thomas case, Barnett once more will attempt to convince a jury that pictures of violent police conduct can lie.
I first met Barnett at his high-rise office
in the city of Orange not long after he had been retained to represent Ramos. Now 65, he was grayer and older than he looked during the King trial but no less dapper, outfitted in a tailored three-piece suit. The office, dominated by an oversize, dark wood desk, is decorated with vintage family photographs and a collection of medals awarded to Barnett's late father, a Marine Corps fighter pilot who eventually became a JAG attorney in the military.
Also prominently framed on a wall are the not-guilty verdict forms from Briseno's trial. Indeed, so synonymous is Barnett's name with the officer's defense that it's hard to believe Barnett hasn't always worked on the side of law enforcement. But surprisingly, he began his legal career in 1974 as an Orange County public defender - signing on after University of San Francisco law school, Barnett says, because he wanted trial experience and the district attorney's office had rejected his application.
"I loved it there," he says. "I tried all kinds of cases, starting out with DUIs and petty thefts and eventually working my way up to rape and murder cases." In all, he estimates he's tried more than 400 criminal cases, including some 40 murders, before juries.
Sidelined from courtroom work when he was promoted to supervisor within five years at the public defender's office, Barnett next decided to join Giles, Callahan, McCune, Willis & Edwards - a now-defunct firm that handled the county's alternate public defender work. There he was assigned his first high-profile capital case, representing an accused rapist and serial killer. He lost, but the guilt and death judgments were reversed on appeal due to an issue Barnett had raised at trial - the improper admission of the defendant's previous criminal record. (People v. Alcala
, 36 Cal. 3d 604 (1984).)
In 1988 Barnett lost another capital case, then a year later won a not-guilty verdict for a teacher in a molestation case and secured a hung jury in the widely publicized prosecution of Dr. Thomas Gionis. The defendant was accused of orchestrating an assault on his ex-wife, daughter of the late actor John Wayne. On retrial, Gionis brought in the famed New York criminal defense attorney Bruce Cutler and was convicted. (People v. Gionis
, 9 Cal. 4th 1196 (1995).)
Barnett's career path changed overnight in March 1991. By then he had opened his own practice, specializing in criminal defense work. "I was at home watching TV when a friend called and told me to turn on the news," he recalls. The friend was Gregory Petersen, an Orange County attorney who represented police officers, their unions, and police associations in civil cases and administrative proceedings.
"Greg told me they were playing the tape of the Rodney King arrest," Barnett says. "As we watched, Greg asked me over the phone, 'You see that cop [referring to Briseno] kicking at King? Well, that's your new client.' "
Petersen - who didn't try criminal cases - had to assure Barnett that he wasn't kidding. He told Barnett to show up at a meeting of the defense team assembled to represent the four Los Angeles police officers indicted for the King beating.
It was headed by Pasadena attorney Michael P. Stone. "We were looking for the right mix of lawyers," says Stone, a former police supervisor and then-general counsel for the Los Angeles Police Protective League, which funded the legal defense. "I remembered testifying for the prosecution in one of Barnett's cases in the '70s, and I never forgot his name," he says. "John's a classy, ethical guy, neither flashy nor belligerent, a what-you-see-is-what-you-get kind of lawyer."
What the defense team got was an attorney fiercely loyal to his client - and to his client alone. At trial, Stone and the other defense attorneys delivered opening statements that sought to blame the incident on King's aggressive and threatening behavior. Barnett, however, told the jury his client had actually intervened to stop other officers from continuing to beat King.
This caused some tension among defense counsel throughout the trial, as each attorney dissected the 89-second videotape of King's arrest. But the rift didn't seem to matter: After deliberating for seven days, the jury failed to return a single conviction. Stone still maintains he disputes Briseno's testimony. Barnett waves off any suggestion that his client shaded the truth. But both lawyers agree the case was a watershed for the law enforcement criminal defense bar.
The King case was "a wake-up call in many respects,"
says Ron Martinelli, a forensic criminologist and police-practices expert based in Temecula. "Attorneys learned that just because you see an incident on videotape, it doesn't mean you're seeing a situation accurately."
Martinelli consulted with the U.S. Attorney's Office in the subsequent civil rights case brought against the four Los Angeles officers. Briseno, this time defended by attorney Harland W. Braun, again was acquitted. But two other defendants were convicted and sent to prison. (See United States v. Koon
, 518 U.S. 81 (1996).)
Martinelli says even the best videotapes must be analyzed frame-by-frame by an expert - and evaluated in context with other evidence - to understand what "an officer saw on the ground in real time."
No one is better than Barnett at placing excessive force cases in context. "You want to look at each case as a whole," he says, "but you also have to break it down into segments, step by step, for jurors who are not familiar with law enforcement protocols. Force almost always escalates. It's not just what happened during an altercation but also what happened immediately preceding it: What brought the officers to the scene, whether the suspect had been searched for weapons, whether he was compliant, what kind of training the officers had."
All these factors, Barnett contends, play into a determination of whether police used excessive force, and each must be looked at carefully. From a trial lawyer's standpoint, he attests, the key is preparation. Barnett estimates that in the King case, he had logged hundreds of hours scrutinizing the videotape before the first day of jury selection.
At that point, Barnett explains, close attention also must be paid to potential jurors' race, gender, and age - especially in cases involving white cops and black suspects. "Unfortunately," he told me, "race is always in play." Briseno benefited greatly, he concedes, from the racial composition of the King jury - ten whites, one Hispanic, and one Filipino.
"What you have to do in voir dire is let people know that you understand their life experiences with police may have been negative," he says. "But you also have to let them know that while their feelings are reasonable, they can't let their feelings control their verdicts."
For Barnett, the King case opened the door to the niche practice of defending police officers accused of on-duty misconduct. Many of the best-known practitioners, such as Stone, are former cops. Others, such as David P. Mastagni of Sacramento, have military backgrounds. Mastagni, founder and managing partner of Mastagni, Holstedt, Amick, Miller & Johnsen, has represented police and corrections personnel in both civil and criminal cases for 40 years.
The field is small enough that "most of us know one another," says Mastagni, who says his 40-attorney firm is the largest law-enforcement defense firm in the nation. And business is brisk, he adds, with 10 to 20 misconduct referrals a month - most of which resolve without any legal filings.
In the large metropolitan departments, defense costs generally are paid by officer protective leagues and police unions. Many smaller departments - such as the Fullerton Police Department - subscribe to a legal defense fund created by the Peace Officer Research Association of California, a Sacramento-based coalition of approximately 890 member associations in 14 chapters statewide.
Unlike many of his colleagues in the law enforcement defense bar, however, Barnett broke into the field from the outside. "I had been an adversary of the police in the courtroom my whole career," he says. "Early on, as more police referrals came in [after the King case], some criminal defense attorneys thought I'd lost my mind or was a traitor."
It also took some time for Barnett's law enforcement clients to accept him. "Some had a hard time warming up to me," he says. "But that was understandable, because cops and defense lawyers generally are natural enemies - and I had tried for 20 years to make cops look bad on the witness stand."
Gradually, Barnett won their trust. By the time he concluded the successful Morse
defense in 2004, police misconduct cases comprised more than 20 percent of his practice. Barnett's son Case joined the practice in 2010 after working, as his father had, some five years in the Orange County Public Defender's office.
As Barnett prepares for the trial of Manuel Ramos,
some of his colleagues in the defense bar say he has more than his courtroom skills working in his favor. First and foremost, says Mastagni, "Jurors often want to give police officers a break for doing such a dangerous job and putting their lives at risk." In addition, he says that when officer defendants are called to the stand - as happens far more often than in routine criminal prosecutions - they generally make good witnesses. "The officers of today are well-educated, highly trained and come from all walks of life," he says.
Statistics on jury verdicts also weigh on Barnett's side. According to the Cato Institute's National Police Misconduct Reporting Project, which analyzes daily media reports to locate news stories about police misconduct, 2,346 excessive force complaints were lodged nationwide in fiscal 2009-10. Of those, 179 prompted criminal excessive force prosecutions, and just 79 led to convictions. Similar findings were reached a decade earlier by the National Police Use of Force Database project of the International Association of Chiefs of Police, in reports published in 1999 and 2001.
Another factor that often gives accused cops a leg up is the statute on excessive force. Under California law, police officers attempting arrests may use reasonable force, and they need not retreat in the face of resistance by a suspect. (Cal. Penal Code § 835a.) The force they use may even be deadly, if justified, when an arresting officer has probable cause to believe a suspect poses a threat of great bodily harm or injury. (See Tennessee v. Garner
, 471 U.S. 1, 11 (1985); and CALCRIM No. 507.) And, as in every criminal case, the burden of proof rests with the prosecution, which must show that any force used was unjustified and unreasonable.
But the threshold for justified force varies from case to case. When he denied Barnett's motion to dismiss in January, Judge William R. Froeberg noted evidence presented at the preliminary hearing that supports a finding of implied malice: "A) For no readily apparent or logical reason, Officer Ramos threatened to 'fuck up' Mr. Thomas. B) Officer Ramos, with no apparent reasonable cause to believe Mr. Thomas was a danger to himself or to anyone else, began striking Mr. Thomas with his baton. C) Officer Ramos continued to compress Mr. Thomas'[s] chest even though Mr. Thomas stated 9 times that he could not breathe. D) Officer Ramos failed to render aid to his arrestee, an obviously unconscious person whom he had helped to render unconscious."
Froeberg concluded dryly: "A medical degree is not required to know that suffocating someone will kill them." (People v. Ramos
, tentative ruling Jan. 4, 2013 at p. 8).)
Whatever its strengths and limitations,
the surveillance tape of Kelly Thomas's beating will be the core of the prosecution's case. But will it be enough to convict Ramos of intentionally killing him?
"You need more than a disturbing video to convict someone of second-degree murder," says Loyola Law School Professor Laurie L. Levenson. "There are lots of ways to explain away a disturbing video, and Barnett is particularly good at doing that." On the other hand, she adds, "After the Rodney King case, juries have become more realistic. They know it's not just Joe Friday out there - there are good cops and bad cops."
Other analysts doubt jurors will give Ramos much sympathy. "Once the fight between Kelly Thomas and the police begins, it's anybody's guess who will win," says Steve Meister, a former deputy district attorney in Los Angeles who now practices criminal defense and provides legal analysis for two local broadcasting stations. "You have an unmedicated, out-of-control, homeless schizophrenic who was possessed of such enormous strength that he was able to fend off six police officers. But the critical question is whether the fight ever had to happen in the first place."
In Meister's view, on balance, the answer is no. "The most credible use-of-force experts who will be called at trial will testify that Ramos had no need to get in Thomas's face as quickly as he did," Meister says. "He caused the situation to escalate and set in motion a chain of events that resulted in Thomas's death."
The Orange County District Attorney's office is also predicting a guilty verdict. "We thought the evidence at the prelim was presented as we expected," says Susan Kang Schroeder, Rackauckas's chief of staff and a veteran prosecutor. "The judge made the right decision binding the defendants over for trial, and in so doing gave another confirmation as to the merits of our filing."
Barnett certainly doesn't see it that way, saying he expects full vindication at trial. He claims that the prosecutors' theory of the case ignores the fact that Ramos's recorded threat to "fuck up" Thomas was conditional, ending with the words, "if you don't comply or do what I say." That phrase, Barnett contends, provides legal justification for using force to subdue Thomas.
Without conceding the cause of death (Thomas also suffered from pneumonia), Barnett claims the video doesn't show Ramos using anything approaching unreasonable force. To the contrary, he says, the tape shows that Thomas resisted arrest, and that in any event, "Ramos was nowhere near his upper torso when Thomas was still shouting. His oxygen had not been cut off."
Thus far, the people of Fullerton appear to stand squarely behind the prosecution. Soon after the preliminary hearing, the city reached a $1 million settlement in a wrongful death suit brought by Thomas's mother. His father has filed a separate action (the couple are divorced). (Thomas v. City of Fullerton
, No. 30-2012-00581299 (Orange Cnty. Super. Ct.).)
Adding to the pressure, Fullerton residents voted last June to recall three members of the city council who were targeted for allegedly mishandling the investigation into Thomas's death. More recently, there have even been public discussions about shutting down the city's police department and allowing the county sheriff's office to assume law enforcement responsibilities in Fullerton.
Barnett says he's not upset by adverse publicity, nor by the prospect of squaring off against Anthony Rackauckas. "I tried cases against Tony when he was a line deputy in the DA's office and I tried cases in front of him when he was a judge on the superior court," Barnett says. "He's a good lawyer."
But so too, by all accounts, is Barnett. "We faced far more negative coverage in the King and Morse
cases," he says. "Anything short of acquittal [for Ramos] would not be a win."
Bill Blum is a Los Angeles-based freelance writer and retired administrative law judge.