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Can You Get the State to Investigate a Failed Criminal Prosecution
My question relates to legal practice in the state of: California
To be honest, I had no idea where to post this, since it probably falls under many categories.
I'm sure you are all familiar with the murder trial of Kelly Thomas, and its outcome. I have some serious questions myself, and I know there are many others who are dumbfounded as to how the jury could possibly return not guilty on all counts, after little over an hour of deliberation, given all of the factors that are known regarding the initial attempt to cover it up by those involved, including the chief, the DA (who ended up prosecuting the case) (conflict of interest?), and even some city council members who ended up having to step down because of it. It cannot be more obvious that this was a mock trial. I believe it should have ben tried in another venue, and not by the DA who normally works alongside of the accused. There is much reason to believe this was not prosecuted to the fullest, meaning key evidence was deliberately left out, and that this constitutes malpractice on the part of the judge, the DA, or both.
So, my question is: Is there a way the people can demand a full investigation of the proceedings for malpractice, including the judge's instructions to the jury, and investigation of the jury itself, to find out if they were possibly pre-selected in some way? Has this ever been done where the outcome of a criminal trial was thoroughly investigated? This is a mockery of justice that they cannot be allowed to get away with.
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Re: Investigating Malpractice
The FBI investigated. Frankly the one thing the video does not show is how deranged his mental state is at the time or how it deteriorated over the years. This was the last of over 100 arrests there. He had some type of behavior history that needs contrasted.
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Re: Investigating Malpractice
You're right there, the video does not show a deranged mental patient. Ir does show, however, a very calm Thomas appearing almost sedated, and certainly posing no threat to the safety of the officers.
If the FBI has already completed the investigation, is there any way to obtain the results of that investigation, or, for the purpose of launching our own investigation, is it possible to obtain the transcripts of the entire proceeding, and most importantly, the judge's instructions to the jury?
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
You do of course realize most serial killers are calm relaxed and appear forthcoming also? I don't know that the tape shows what you claim or not. I only see what it appears to show. I'm sure many famous magicians would not accept your theory without question.
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Re: Investigating Malpractice
This matter will be debated for years to come. Some will never be satisfied unless the officers heads are on a pike, others are satisfied that the system did as it was intended. It is doubtful that everyone will EVER agree on whether justice was served or not.
What would you hope to do in your own investigation? The family has a lawsuit still pending that will almost assuredly be settled out of court for a large sum of money. The officers cannot be charged and tried again in a state court, and it is unclear whether the feds will pursue it. Last I heard, the FBI was reviewing the case. But, even if the feds do pursue it, whether they can get another verdict is iffy.
Once the matter has been closed by the court, the case file should largely be a matter of public record. You are free to pay for copies and the costs of transcripts if you wish, and those transcripts should have the jury instructions on them. But, in the end, it will change nothing and the officers cannot be charged again. The FBI will NOT provide you THEIR investigation no matter how politely you ask. IF the feds take the matter to trial against any of the officers, then eventually those reports that make it into the case file should be available as part of the official record. Until then, nope.
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Re: Investigating Malpractice
Thanks for your reply. It's now a matter of public interest, and it will be examined in the utmost of scrutiny to determine what was done (or not done) to ensure the failed prosecution of what should have been a slam dunk case. I'm not sure if double jeopardy applies if the trial is found to have been fraudulent or manipulated in some way involving malpractice or criminal negligence.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
It is not a slam dunk case. Testimony brought out that he had an enlarged heart from possible years of drug use which could have altered his mental response. He also had pneumonia and fluid filled lungs. Testimony indicated no blood in his airway. It is not inconceivable he died from reasonable chest pressure to restrain and the increased need for oxygen due to after effects of wrestling and the pressure based on that. The facial injuries could easily have happened from contact with a curb or other obstacle during the tussle.
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Re: Investigating Malpractice
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sKiTzo
Thanks for your reply. It's now a matter of public interest, and it will be examined in the utmost of scrutiny to determine what was done (or not done) to ensure the failed prosecution of what should have been a slam dunk case.
Very often lay people see a case as a "slam dunk" when there are legal insufficiencies that exist. If it were as easy as many people in TV land think, then we would have no need of attorneys. Fortunately, the system does not rely on public opinion and who has the biggest public relations machine.
You bet the matter will examined. It will be examined by the public, the press, the legal community, and the law enforcement community for years to come. They will look at the case and ask themselves what went wrong, what went right, how can they address it from a management or supervision perspective in the future, and how could it be better prosecuted in the future.
Sometimes the evidence just isn't there to make the case. And, as is usually the case, the video that has been released to the public probably is not ALL the video.
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I'm not sure if double jeopardy applies if the trial is found to have been fraudulent or manipulated in some way involving malpractice or criminal negligence.
That is an exceedingly high burden, and unless the defense participated in such a cover-up double jeopardy will likely apply.
In this country we don't get to keep trying people until we get the verdict 51% of those interviewed might want. If that were the case, what's the point of having the Constitution or the criminal justice system since we can just keep going at it arguing that we didn't get the verdict we expected, so of course there was malfeasance involved so we get to do it again.
If you want to spend the money and review the case yourself, that's fine. But, don't expect that any new trial will result. If there is a case to be made, the feds will do it. The feds can introduce evidence that the state courts cannot - such as coerced statements made by the officers (if there are any). Under state law and officer can be compelled to answer questions in an internal investigation in violation of Miranda. These statements cannot be used against them in a state court, however. But, the feds do not have to abide by this and can - under certain circumstances - use these coerced statements ... if the officers were dumb enough to have made them during their IA interviews. Given the circumstances, i strongly suggest that they chose to risk termination for insubordination by refusing to answer, but I don't know.
As a note, I know very little about the case and have read only the headlines that exist out there. I have no axe to grind on the issue and I do not know any of the officers or public figures involved. But, I have seen the press and the public go off on misguided and often uneducated tangents, so I caution anyone who might look into the matter to consider the possibility that there might be more to the story than the sound bites on the evening news and the oft-repeated diatribes on the web which - if repeated often enough - become THE perception of fact even if they are not founded in it.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
Testimony indicated he had blood gurgling in and out of his nose. The audio-visual of the entire incident is the best testimony there is. Thomas was 135 lb. guy who wasn't all there. In a video taken by someone with a cellphone, you can hear people yelling "just cuff him already". To suggest he died of something other than being bludgeoned, beaten, tased, crushed, and left in a large pool of blood is just ludicrous.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
I suggest you review the testimony. I have never heard of entire northern state populations dying because their noses stuffed up and they were forced to breath through their mouth. In fact we live with it every year.
http://www.scpr.org/news/2013/12/05/...mony-to-start/
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sKiTzo
Testimony indicated he had blood gurgling in and out of his nose. The audio-visual of the entire incident is the best testimony there is. Thomas was 135 lb. guy who wasn't all there. In a video taken by someone with a cellphone, you can hear people yelling "just cuff him already". To suggest he died of something other than being bludgeoned, beaten, tased, crushed, and left in a large pool of blood is just ludicrous.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
Testimony indicated he had blood gurgling in and out of his nose. The audio-visual of the entire incident is the best testimony there is. Thomas was 135 lb. guy who wasn't all there. In a video taken by someone with a cellphone, you can hear people yelling "just cuff him already". To suggest he died of something other than being bludgeoned, beaten, tased, crushed, and left in a large pool of blood is just ludicrous.
According to the coroner, the cause of death was due to a lack of oxygen as a result of a chest compression sustained during a physical confrontation with the police. he didn't drown in his own blood. Further testimony implied that medical treatment might have contributed to the man's death. So, there seems to be differing opinions as to the cause of death. Or, are we to believe the coroner THIS time, because he says what you expect ... but, if he were to have come to a different conclusion on this or another case, he would be unbelievable?
Stating that death was caused as a result of "being bludgeoned, beaten, tased, crushed, and left in a large pool of blood" is an example of the sort of language that leads to misinformation and a lack of understanding of the facts. The hyperbole becomes reality when, in fact, it's not quite it.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
Here we have a case in which the outcome has demonstrated that there are no laws in place to govern the police as to what is acceptable behavior. These cops were allowed to escalate what was basically a non-situation into murder, with no consequence.
If the officers were within legal limits in their actions, then, at the very least, there should be new laws that are clear and well-defined as to what will be considered excessive force in the future to ensure this never is allowed to happen again.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
Here we have a case in which the outcome has demonstrated that there are no laws in place to govern the police as to what is acceptable behavior.
That's simply not true. Because the end result was not what YOU and some others wanted, does not mean there are no laws in place! The laws ARE in place, and they apply to peace officers. If they didn't, there never would have been a trial. there was. And even former police officers are afforded the same right to a trial as the rest of us ... or, should they be summarily executed when enough people believe that they should be?
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These cops were allowed to escalate what was basically a non-situation into murder, with no consequence.
There were consequences. They lost their jobs, they were prosecuted on manslaughter charges, and had to go through the rigors of a trial. And, they still have to fight a civil suit. Their lives are effectively ruined as a result - you think any of them will ever get a decent job again?
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If the officers were within legal limits in their actions, then, at the very least, there should be new laws that are clear and well-defined as to what will be considered excessive force in the future to ensure this never is allowed to happen again.
There ARE laws defining excessive force. There are also agency policies. Apparently they exceeded those policies at the very least and as a result were terminated.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
This is a not a movie where you can keep backing up the film and adding relevant information that will change the outcome. Mental compromise could made him sluggish and resistant, accentuated by the tazer. As the struggle goes on, the pneumonia becomes a problem due to short breath and he starts to breath hard and struggle again to breath. This is interpreted as a new rally of fight. He is now put down hard, face striking a curb. He rolls and struggles for air ending up with an officer on his chest and two more fight to put on cuffs. Finally cuffed, system sucked desperately for air that won't enter his clogged lungs he is laid on his side by police to regroup while they do. As they calm down like they have many time together, they do not realize his silence is suffocation.
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sKiTzo
Here we have a case in which the outcome has demonstrated that there are no laws in place to govern the police as to what is acceptable behavior. These cops were allowed to escalate what was basically a non-situation into murder, with no consequence.
If the officers were within legal limits in their actions, then, at the very least, there should be new laws that are clear and well-defined as to what will be considered excessive force in the future to ensure this never is allowed to happen again.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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cdwjava
According to the coroner, the cause of death was due to a lack of oxygen as a result of a chest compression sustained during a physical confrontation with the police. he didn't drown in his own blood. Further testimony implied that medical treatment might have contributed to the man's death. So, there seems to be differing opinions as to the cause of death. Or, are we to believe the coroner THIS time, because he says what you expect ... but, if he were to have come to a different conclusion on this or another case, he would be unbelievable?
Stating that death was caused as a result of "being bludgeoned, beaten, tased, crushed, and left in a large pool of blood" is an example of the sort of language that leads to misinformation and a lack of understanding of the facts. The hyperbole becomes reality when, in fact, it's not quite it.
Okay, so you're suggesting that had he not even had this event with officers.....let's say he was sleeping in a trash can. He would have died anyway? That's what you're saying. It's absurd and insulting.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
Okay, so you're suggesting that had he not even had this event with officers.....let's say he was sleeping in a trash can. He would have died anyway? That's what you're saying. It's absurd and insulting.
It is a fact based on his medical condition. The only thing missing was something to get his system overworked to cause it.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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cdwjava
That's simply not true. Because the end result was not what YOU and some others wanted, does not mean there are no laws in place! The laws ARE in place, and they apply to peace officers. If they didn't, there never would have been a trial. there was. And even former police officers are afforded the same right to a trial as the rest of us ... or, should they be summarily executed when enough people believe that they should be?
There were consequences. They lost their jobs, they were prosecuted on manslaughter charges, and had to go through the rigors of a trial. And, they still have to fight a civil suit. Their lives are effectively ruined as a result - you think any of them will ever get a decent job again?
There ARE laws defining excessive force. There are also agency policies. Apparently they exceeded those policies at the very least and as a result were terminated.
I'm just saying, if what we saw and heard in the video of the altercation is acceptable conduct by a peace officer to qa court of law, then we need better laws.
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Disagreeable
It is a fact based on his medical condition. The only thing missing was something to get his system overworked to cause it.
That is unacceptable as a defense for murder. He would not have died without the severe trauma having occurred.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
It could be a lesson that the police need to consider whether known mental patients should be treated in a less aggressive manner to obtain compliance.
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sKiTzo
I'm just saying, if what we saw and heard in the video of the altercation is acceptable conduct by a peace officer to qa court of law, then we need better laws.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
I'm just saying, if what we saw and heard in the video of the altercation is acceptable conduct by a peace officer to qa court of law, then we need better laws.
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That is unacceptable as a defense for murder. He would not have died without the severe trauma having occurred.
It was evidently shown that there were contributing factors. You certainly cannot say that without the trauma he would not have died. THAT is perhaps more insulting to the deceased than anything else said here.
Re-read the posts, specially #14.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
I'm just saying, if what we saw and heard in the video of the altercation is acceptable conduct by a peace officer to qa court of law, then we need better laws.
It was apparently NOT acceptable as the officers were terminated. But, while it might not be acceptable policy it does not mean that the actions were considered unlawful. The jury can only evaluate the evidence as presented. If the state failed to meet the burden of proof (i.e. to show that the elements of the offenses charged had been met by the evidence and testimony) - as in ANY case - then the jury had an obligation to acquit. An acquittal is not the same as approval. There are many cases where people are acquitted even when the evidence appears overwhelming - Casey Anthony, comes to mind. Even the jurors tended to believe she killed her child, but the state failed to make the case such that it overcame reasonable doubt, so they had to acquit her. George Zimmerman comes to mind as well.
One can find an act offensive and improper and still not be able to turn the corner from an improper act to a criminal one.
And, to be honest, what I have just seen of the tape does not make it clear that any violation of law occurred. I can't speak as to FPD policy on the use of force, but it certainly seems as if the officers continually made commands to him to put his hands behind his back, etc. they also continued "code 3" cover for additional officers as they continued to engage Thomas. They then felt the need to use the Taser in order to try and gain compliance still asking him to roll over and requesting "code 3" cover. The screaming certainly sounds bad, but, I have seen people not being touched screaming they are being abused, so screaming doesn't mean much. You can also hear the officers hypothesizing that he was under the influence of something - likely because of the amount of force they had to use to subdue him. Though I overheard one officer saying that when the Taser ran out (or, "came to the end") he had to smash Thomas' face into the ground ... that might have been the key to his termination even if it might have been legally permissible under the circumstances.
Not reading the reports or seeing the injuries or knowing how they were inflicted, I again have to say that I cannot say whether the force was apparently excessive or not. Apparently the officers' actions were sufficient to allow for termination, but not sufficient for a guilty verdict.
Unless he was on probation or subject arrest, compelling a search would likely not have been lawful.
Interesting to note as I searched for videos (and found only a couple of unedited versions) I found many included with editorial comments referring to the officers having "murdered" or "killed" Thomas. These present a preconception that the act was unlawful and somehow criminal even when Thomas bears the blame for most of the encounter (all of it, initially) as he was the one who failed to comply with directions that would have kept this from happening at all.
Horrendous to be sure. Apparently the acts were out of policy, but, not proven beyond reasonable doubt to be criminal. We don't have to like the verdict, but there it is. There are a great many verdicts that a lot of us don't like but, unless we create a system where we vote on guilt or innocence on TMZ, the system is what we have and the state must PROVE it's case, even if the end result does not make the general public happy.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
Here is what you are not getting. If what you saw in the video (including the pool of blood that was left after they took him away) is not excessive force, then what is? I know "excessive force" has been in the lawbooks for a very long time. How is it defined in the lawbooks?
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
Here is what you are not getting. If what you saw in the video (including the pool of blood that was left after they took him away) is not excessive force, then what is? I know "excessive force" has been in the lawbooks for a very long time. How is it defined in the lawbooks?
It really doesn't matter whether I think the force was excessive or not ... but, given only what I can objectively SEE in the video, I can't say that it was excessive force. But, I know only what the video shows and what I hear people saying in the audio.
What you do not understand is that in this country a JURY decides upon the facts of a case - not you, not me, not the media, not the Youtube-verse ... the jury. It is to the JURY that the case is presented, not us. We know what the media says, what the PR pundits say, and what the angry people with an axe to grind on one side or the other have to say ... we do NOT know what the jury heard unless we were there. And, even if we were there, the law must still be adhered to even if you and I do not understand the reasoning behind it.
You may not like or agree with the verdict. But, it is the system we have. And all because the jury found that the elements for the crimes of manslaughter and other charges may not have been met by the prosecution does NOT mean that the actions were acceptable ... it only means that the state failed to meet the burden of proof required in a court of law.
The concept of "excessive force" can fill an entire book. In fact, I am currently prepping a unit on it for a high school class and have to say the area is quite broad with many texts and many dozens of published research and reports devoted to each component subject area - many of them critical of the other. As a note, CA devotes a MINIMUM of 12 hours in the Basic Academy on the use of force. This is also part of ongoing training and an area that is included in every agency's policy manual. So CA - like most states - takes the matter quite seriously. Where we fall short is in our ability to educate the general public as to what we do and why we do it - use of force is one of those areas. ... not that I'd like to try and defend THIS one to the public, but, in general we do a crappy job of articulating why we train the way we do. For instance, we are rarely able to adequately communicate the reasons we are trained to "shoot to stop" (to center mass) and not to "shoot to wound" (like at a leg or arm) and as a result, many members of the public see a video shooting and feel it was unjustified.
As for the law I am sure you are perfectly capable of looking up the definitions yourself using federal or state law, and that you can choose to agree or disagree with those definitions. But, they all agree that the force must be beyond the scope of what is considered under the law to be REASONABLE and a lawfully acceptable level of force. And for a court to find one guilty, the state must show that there existed the intent to commit the act if not the crime itself.
So, I will repeat it once more, in this instance it appears that the agency felt that the force used was excessive in that was outside the agency's tolerance of the use of force and the officers were terminated. But, it also appears that the state was unable to make its case that the defendants were guilty of the UNLAWFUL use of force. What was missing, I don't know. And, until anyone can interview the jurors, or pundits and legal beagles that were in the courtroom can enlighten us, we may never know.
Here is an excellent discussion of the issue of force by now-retired Deputy District Attorney Robert Phillips from San Diego County (where I used to work) written in 2008:
http://www.legalupdateonline.com/4th/140
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
Here is what you are not getting. If what you saw in the video (including the pool of blood that was left after they took him away) is not excessive force, then what is? I know "excessive force" has been in the lawbooks for a very long time. How is it defined in the lawbooks?
What Carl said.
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Re: Investigating Malpractice
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cdwjava
Once the matter has been closed by the court, the case file should largely be a matter of public record.
"Largely" is the part that concerns many in the public. While I did not see how the DA charged as he did, he is generally regarded as a pro-police DA and is not known for charging the police with misconduct. He lost. The only meaningful review will come from the DOJ and from the civil trial because of the "largely" part required by the police privacy protections in the state of California.
We do know the officer who repeatedly smashed Kelly Thomas in the face of with his Taser is looking to get his job back and is expected to sue the department if the commission does not grant that to him. He did have his training officer testify such an act was within policy.
Personally, I think they need to change the policy.
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A word about video.
I know very little about this case other than the headlines and I have not seen any video of it. However, reading this post I remember a conversation I had with a coworker during the Rodney King case.
My coworker lived in Simi Valley, Ground Zero for that trial. Although we lived on opposite coasts, our job duties required that we speak frequently and we'd struck up a work friendship. I remember her telling me that locally, they saw the entire video of that incident and not just the clip that was shown in the media. I remember her saying that when you saw the entire thing, it presented an entirely different picture than if you saw the edited version.
Please do not forget that the same can be true here.
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Re: Investigating Malpractice
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cbg
A word about video.
I know very little about this case other than the headlines and I have not seen any video of it. However, reading this post I remember a conversation I had with a coworker during the Rodney King case.
My coworker lived in Simi Valley, Ground Zero for that trial. Although we lived on opposite coasts, our job duties required that we speak frequently and we'd struck up a work friendship. I remember her telling me that locally, they saw the entire video of that incident and not just the clip that was shown in the media. I remember her saying that when you saw the entire thing, it presented an entirely different picture than if you saw the edited version.
Please do not forget that the same can be true here.
Great point.
We mere mortals very rarely get to see the "whole thing".
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
Somewhere between a physician ride along to give a complete physical exam to every suspect before questioning and arrest lies a grey area. In this situation, I think the police were not impartial in their approach to Kelly Thomas because of the multiple encounters over the years. Who bears the responsibility? The negligent parent who never filed for guardianship and let him live on the street? The system for not locking him up in a controlled environment at taxpayer expense since his parents obviously refused to pay for their son? The locals who viewed him as a nuisance and just wanted him gone? The police who were tired of dealing with him over and over and were a bit intolerant and not trained to recognize the symptoms of his pneumonia before executing aggressive police action? I think the answer is everyone I listed is culpable to a point.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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Disagreeable
Somewhere between a physician ride along to give a complete physical exam to every suspect before questioning and arrest lies a grey area. In this situation, I think the police were not impartial in their approach to Kelly Thomas because of the multiple encounters over the years. Who bears the responsibility? The negligent parent who never filed for guardianship and let him live on the street? The system for not locking him up in a controlled environment at taxpayer expense since his parents obviously refused to pay for their son? The locals who viewed him as a nuisance and just wanted him gone? The police who were tired of dealing with him over and over and were a bit intolerant and not trained to recognize the symptoms of his pneumonia before executing aggressive police action? I think the answer is everyone I listed is culpable to a point.
If "everyone" were culpable, then no one is.
But, before you beat up on society and Kelly Thomas' father, know such things were tried.
http://www.ocregister.com/articles/t...y-records.html
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Thomas had a history of using drugs, according to a subsequent probation report written in 1996. He "does not seem to comprehend or express himself well... appears incapable of even the most basic functioning on a day-to-day existence," the report noted.
The jail called in the Orange County Public Guardian. In limited cases, that office can take responsibility for "gravely disabled," mentally ill adults and have them committed to a locked psychiatric ward. Courts call that appointing a conservator.
Orange County courts first appointed a conservator for Kelly Thomas in 1996, after his jail stint. He was sent to a locked psychiatric center in Santa Ana, the records show.
His father says he acted as Kelly's conservator in the years that followed, and sometimes had to physically force his son into treatment centers when he came off his medications. Kelly would stay at the treatment centers for a short time – a few weeks or months – before he was deemed stable and released, Ron Thomas said.
The county stepped in and assumed conservator duties in 2003, then in late 2004, and again in 2005 through mid-2006, records show. Ron Thomas said he handed over those duties when he "just didn't have time" to act as Kelly's full-time conservator; the money to pay for Kelly's care and oversight came from his Social-Security stipends. In each case, a judge found that Kelly Thomas was gravely disabled by his mental illness and could not care for himself.
A spokeswoman for the Public Guardian's Office did not return phone calls seeking comment.
Thomas escaped from one treatment center in early 2004, the records show. Fullerton police stopped him a few weeks later, but let him go when he refused to go with them, the court files show. He also ran from an official with the treatment center, who tracked him down and called an ambulance.
Kelly Thomas "hated" the treatment centers, his father said. He remembered Kelly saying: "Dad, this place scares me. I don't want to be here."
Ron Thomas has said he struggled in recent years to get Kelly back into treatment centers. He said Kelly's mother even took out a five-year restraining order against her son last year in an effort to have him taken into custody and sent back to treatment.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
Tried and given up on.Thank you for proving my point. Everyone else abandoned him and dumped him on the local police. To steal and pollute a phrase:
I'm a police officer not a ....
Psychiatrist
Parent
Conservator
Babysitter
Psychologist
Social Worker
Landlord
Innkeeper
Medical Doctor
Politician
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Welfarelvr
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Re: Investigating Malpractice
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Welfarelvr
"Largely" is the part that concerns many in the public. While I did not see how the DA charged as he did, he is generally regarded as a pro-police DA and is not known for charging the police with misconduct.
From the interviews I have read and the news stories he read, he believed in this one. If he is reluctant to charge, and he did, apparently he believed in the charges.
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He lost. The only meaningful review will come from the DOJ and from the civil trial because of the "largely" part required by the police privacy protections in the state of California.
So, you're saying he THREW the trial? And this would be based on what?
DAs lose all the time and we don't accuse them of malfeasance. But, when the state loses THIS prosecution, suddenly there is some sort of collusion?
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We do know the officer who repeatedly smashed Kelly Thomas in the face of with his Taser is looking to get his job back and is expected to sue the department if the commission does not grant that to him. He did have his training officer testify such an act was within policy.
Of course he's taking that position as he is looking at the loss of his career and unemployment. What usually happens is that officers in such a circumstance get a payout to go away, and they MIGHT win a modification of their record to officially include resignation as opposed to termination. The former officer has nothing to lose and everything to gain by trying this. But, odds are no agency would touch the guy with a ten foot pole after this, so his career is through.
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Personally, I think they need to change the policy.
You're assuming the FTO got it right. I strongly suspect that bashing someone in the face with the butt of a Taser (if that happened - I don't know) is out of policy except in those instances when the level of resistance was putting officers or others at risk of serious injury, or, the act was a distraction technique and not to inflict harm.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
The following link talks about a similar case in Spokane. Officer responds to a convenience store and kills a schitzophrenic. He was convicted of excessive force. Turns out it wasn't even the right guy/suspect. They tried to cover it up, just like Fullerton did. The part that bugs me is that, even though he was convicted anyway, they barred the jury from knowing it was the wrong guy. WTF is that all about? That information should not be withheld, it shows the mind state of the cop.
This is exactly what I suspect happened here. I believe the trial was "tailored" to suit the defendants, with the prosecution doing barely enough to get by, and key information was withheld from the jury. For example, I'm pretty sure the jury was not told about how, initially, there was an attempt to cover it up. This involved all of the officers, the chief (who ended up having to step down because of it), some city council members (who also stepped down), AND THE DA. Have you forgotten the Mexican-stand-off with Rackaukas refusing to release the video for like 5 days (or more)? He finally had to release it because of the protesters, and after all this, he announces that HE is going to prosecute this case personally. Are you kidding me?
I live in OC and have lived in Fullerton because my dad lives there. After seeing the video, nobody thought there was even a remote chance they would skate. We were just waiting to see how many years they were going to get.
http://www.spokesman.com/stories/2011/nov/03/guilty/
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Re: Investigating Malpractice
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Quoting
cbg
A word about video.
I know very little about this case other than the headlines and I have not seen any video of it. However, reading this post I remember a conversation I had with a coworker during the Rodney King case.
My coworker lived in Simi Valley, Ground Zero for that trial. Although we lived on opposite coasts, our job duties required that we speak frequently and we'd struck up a work friendship. I remember her telling me that locally, they saw the entire video of that incident and not just the clip that was shown in the media. I remember her saying that when you saw the entire thing, it presented an entirely different picture than if you saw the edited version.
Please do not forget that the same can be true here.
Yep ... there were ten more minutes of video and a lengthy pursuit and fight that occurred BEFORE the video even started.
Though, in the Kelly case, there was video that began at initial contact and ended when he was loaded on the ambulance. It does NOT show what happened and who did what to him, though. You hear voices including officers commands for him to comply, and requesting additional units code 3 (lights and sirens) as they continued to fight with Thomas for several minutes. That indicates to me that the subject was resisting pretty hard.
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Re: Investigating Malpractice
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cdwjava
Yep ... there were ten more minutes of video and a lengthy pursuit and fight that occurred BEFORE the video even started.
Though, in the Kelly case, there was video that began at initial contact and ended when he was loaded on the ambulance. It does NOT show what happened and who did what to him, though. You hear voices including officers commands for him to comply, and requesting additional units code 3 (lights and sirens) as they continued to fight with Thomas for several minutes. That indicates to me that the subject was resisting pretty hard.
If a cop is saying "stop resisting", that indicates to me without a doubt that the guy is NOT resisting, and the cop is saying that to cover his ass.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
The fact is there are good police, bad police and marginal police. Though they attempt to train them to successfully respond to every situation, the human element always enters the picture. Using poor judgment or getting caught up in a situation is not always criminal. Instead of approaching the facts with an open mind, OP has approached it with the attitude of guilty regardless of proven innocent.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
The following link talks about a similar case in Spokane. Officer responds to a convenience store and kills a schitzophrenic. He was convicted of excessive force. Turns out it wasn't even the right guy/suspect. They tried to cover it up, just like Fullerton did.
And what did they do to "cover it up" in Fullerton? Apparently it didn't work because officers were fired and charged.
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The part that bugs me is that, even though he was convicted anyway, they barred the jury from knowing it was the wrong guy. WTF is that all about? That information should not be withheld, it shows the mind state of the cop.
Probably because it was prejudicial. Use of force is determined by the "reasonable officer" standard. If it was reasonable for the officer to have concluded that the person he encountered was the suspect and things escalated from there, then it might be unfairly prejudicial to tel a jury he had contacted the wrong person. Ultimately, it would not matter with the charges whether it was the wrong or the right guy, but what happened between them.
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This is exactly what I suspect happened here. I believe the trial was "tailored" to suit the defendants, with the prosecution doing barely enough to get by, and key information was withheld from the jury.
What you believe and $2.25 will buy you a Venti coffee at Starbucks. Absent some PROOF that the DA's office tanked the case intentionally and the defense was part of the conspiracy, the case is done.
But, as with all high profile cases, there will be a portion of society that will never agree with a verdict and will see a conspiracy around every corner. Sadly, there is no way to bring those people around as any result short of the one they want to see will convince them that things are on the up and up.
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For example, I'm pretty sure the jury was not told about how, initially, there was an attempt to cover it up. This involved all of the officers, the chief (who ended up having to step down because of it), some city council members (who also stepped down), AND THE DA.
If such actions happened, they were not relevant to the charges so why SHOULD they be told? The officers weren't charged with a conspiracy to cover it up, they were charged with offenses related to manslaughter and excessive force under color of authority. They probably also didn't bring up the officers' Boy Scout patches or work in a church youth group (if they did) for the same reasons - they were not relevant to the charges.
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Have you forgotten the Mexican-stand-off with Rackaukas refusing to release the video for like 5 days (or more). He finally had to release it because of the protesters, and after all this, he announces that HE is going to prosecute this case personally? Are you kidding me?
There are laws governing the release of evidence in a crime, and a prosecutor and the court have to decide if the release of such video will further justice or hamper it. Releasing it could have given the defendants a means by which they could challenge a verdict through claims of a tainted jury pool, or caused them to request a change of venue, etc. It's NOT a "cover up" to consider the legal and practical ramifications of releasing evidence. Some video doesn't get released until trial or until months after the incident. Five days is nothing, and I am surprised it was released pre-trial at all, under the circumstances.
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I live in OC and have lived in Fullerton because my dad lives there. After seeing the video, nobody thought there was even a remote chance they would skate. We were just waiting to see how many years they were going to get.
That's the problem with the lay perspective - they don't understand the justice system or that there are laws and rights in place to protect even cops that are accused of crimes.
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sKiTzo
If a cop is saying "stop resisting", that indicates to me without a doubt that the guy is NOT resisting, and the cop is saying that to cover his ass.
I guess all those times I have been saying that to people when they were fighting with me I was making it up ... :rolleyes:
As a note, that is how we are trained! We are trained to issue commands and to tell the subject to stop resisting until he complies. If we do NOT use that phrase or words similar to it, we FAIL that training.
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Disagreeable
The fact is there are good police, bad police and marginal police. Though they attempt to train them to successfully respond to every situation, the human element always enters the picture. Using poor judgment or getting caught up in a situation is not always criminal. Instead of approaching the facts with an open mind, OP has approached it with the attitude of guilty regardless of proven innocent.
Amen.
As I have tried to say, there is a difference between what is wrong and what is illegal. Clearly the agency felt that the officers exceeded their authority and use of force policy because they were let go over a year ago. That does not mean the actions were a crime.
I was involved in an incident where an officer had to use her flashlight to brain a suspect who pulled a gun on her and her partner - that action may have saved their lives in the ensuing gunfight. But, the officer used the flashlight out of policy and while the shooting was a good shoot, the use of force was out of policy and exposed the agency to a lawsuit from the family of the (dead) shooter. The law said the force used was appropriate, but policy did not ... the joke then was had she and her partner been killed, at least they would have been within policy. The agency tried to give her 30 days off ... the department rebelled and they rescinded the discipline.
There are hordes of other cases like that but on a note similar to this one in Fullerton where officers got filed but could not be charged or were not convicted.
And whenever events like this occur, agencies re-evaluate policies and training to try and avoid it in the future. You can bet that Fullerton and every other agency in the state will evaluate their own policies and training to see what can be done differently in the future. Unfortunately, some policy changes will tend to put officers at greater risk so as to help deter liability ... and that is a slope I hope to retire before we head down.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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cdwjava
And what did they do to "cover it up" in Fullerton? Apparently it didn't work because officers were fired and charged.
Probably because it was prejudicial. Use of force is determined by the "reasonable officer" standard. If it was reasonable for the officer to have concluded that the person he encountered was the suspect and things escalated from there, then it might be unfairly prejudicial to tel a jury he had contacted the wrong person. Ultimately, it would not matter with the charges whether it was the wrong or the right guy, but what happened between them.
What you believe and $2.25 will buy you a Venti coffee at Starbucks. Absent some PROOF that the DA's office tanked the case intentionally and the defense was part of the conspiracy, the case is done.
But, as with all high profile cases, there will be a portion of society that will never agree with a verdict and will see a conspiracy around every corner. Sadly, there is no way to bring those people around as any result short of the one they want to see will convince them that things are on the up and up.
If such actions happened, they were not relevant to the charges so why SHOULD they be told? The officers weren't charged with a conspiracy to cover it up, they were charged with offenses related to manslaughter and excessive force under color of authority. They probably also didn't bring up the officers' Boy Scout patches or work in a church youth group (if they did) for the same reasons - they were not relevant to the charges.
There are laws governing the release of evidence in a crime, and a prosecutor and the court have to decide if the release of such video will further justice or hamper it. Releasing it could have given the defendants a means by which they could challenge a verdict through claims of a tainted jury pool, or caused them to request a change of venue, etc. It's NOT a "cover up" to consider the legal and practical ramifications of releasing evidence. Some video doesn't get released until trial or until months after the incident. Five days is nothing, and I am surprised it was released pre-trial at all, under the circumstances.
That's the problem with the lay perspective - they don't understand the justice system or that there are laws and rights in place to protect even cops that are accused of crimes.
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I guess all those times I have been saying that to people when they were fighting with me I was making it up ... :rolleyes:
As a note, that is how we are trained! We are trained to issue commands and to tell the subject to stop resisting until he complies. If we do NOT use that phrase or words similar to it, we FAIL that training.
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An initial attempt to cover it up is not relevant? On what planet? If you are not guilty of any wrongdoing, why the big cover-up? They should all have been slapped with conspiracy charges.
I forgot to mention that during the 5 days, the DA admitted that he was letting the cops review it over and over, and were allowed to rewrite their reports several times. You're going to say there's nothing wrong with that and I'm going to counter it by reminding you that this is unacceptable scandalous behavior, and the jury not knowing about it affected the outcome. The DA should be slapped with malpractice and the clear conflict of interest should have barred him from prosecuting this case in the first place.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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sKiTzo
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An initial attempt to cover it up is not relevant? On what planet? If you are not guilty of any wrongdoing, why the big cover-up? They should all have been slapped with conspiracy charges.
A trial is for the charges that a suspect is arraigned on. Extraneous conspiracy theories that may have resulted in political upheaval are NOT relevant to the facts of a case and whether or not the defendant did what they did.
Now, if the defendants claimed they did nothing wrong and then THEY took steps to cover their tracks and falsify reports and the like, that could be relevant. But, if the city bigwigs circled the wagons to try and minimize liability or engaged in damage control, that is not in any way related to the offense charged.
Or, if you are charged with a crime, should you be tainted because family and friends tried to do something to mitigate their own exposure to liability? Why should YOU be held accountable for THEIR actions?
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I forgot to mention that during the 5 days, the DA admitted that he was letting the cops review it over and over, and were allowed to rewrite their reports several times. You're going to say there's nothing wrong with that and I'm going to counter it by reminding you that this is unacceptable scandalous behavior, and the jury not knowing about it affected the outcome.
First, the police were investigating both internally and externally so they had a right to the evidence. The public didn't.
Second, I am not sure what you mean about them being allowed to re-write their reports several times. understand that until a report is completed, approved, and submitted it is not complete. If he did allow them to amend already approved reports that could be a problem. But, it is a problem that would provide problems for the officers if they tried to take the stand in their own defense and they had conflicting statements in different reports out there.
Plus, a report is generally not "evidence," the officer's testimony is.
Third, the issues you raise may not have been brought up to the jury because they were not relevant to the actual charges alleged, and, they may be nothing more than rumor or innuendo at this point. You may say cover up, the city may say they were seeking to mitigate their legal exposure by taking whatever actions they did. All because politicians got booted as a result doesn't mean that the officers charged had anything to do with it! That coverup (if there was one attempted) was likely done without the complicity of the defendants.
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The DA should be slapped with malpractice and the clear conflict of interest should have barred him from prosecuting this case in the first place.
Malpractice ain't gonna happen, and I don't see the conflict of interest.
You want a pound of flesh, you'll have to wait until the feds decide if they want to get involved. If there are enough protests, they will. But, since the victim was not a minority, I suspect the feds may take a pass on this one.
The civil suit, well, THAT will get a pound of flesh from the city. That will never go to trial and this guy's family will be greatly rewarded by the end to Thomas' sad life.
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Re: Investigating Malpractice
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sKiTzo
If a cop is saying "stop resisting", that indicates to me without a doubt that the guy is NOT resisting, and the cop is saying that to cover his ass.
I'm sorry, but that is just plain ludicrous.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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cdwjava
A trial is for the charges that a suspect is arraigned on. Extraneous conspiracy theories that may have resulted in political upheaval are NOT relevant to the facts of a case and whether or not the defendant did what they did.
This is a murder case. I've seen trials where 3 hours are spent on minute details that YOU would find "irrelevant". I've got news for you - EVERY factor and every move they made before , during, and after the alleged crime, is absolutely relevant.
The cops didn't immediately know about the video. It was pretty clear at the time, that they thought it was going to be business as usual. When word leaked that a video existed, protesters gathered in front of the FPD. According to internal affairs, this is when they were allowed to rewrite their reports and get their stories straight. If you are REWRITING something - you are CHANGING the original content. You're not going to rewrite it just to copy down the same thing. Finding out about the video, and then scurrying to rewrite the reports is soooo very relevant.
First, the police were investigating both internally and externally so they had a right to the evidence. The public didn't.
If they face possible charges, they are not supposed to be afforded the opportunity to watch the video. Being the team player that he is, Rackaukas let them review the vid several times. It's nice that they found such favor from the guy who is supposed to be prosecuting them...It's a total conflict of interest.
Plus, a report is generally not "evidence," the officer's testimony is.
Cops' testimony is no longer "golden" as it once was. The fact is, there are cops that lie.
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The civil suit, well, THAT will get a pound of flesh from the city. That will never go to trial and this guy's family will be greatly rewarded by the end to Thomas' sad life.
I'm not so sure that the family will cash in big. After all, the guy was homeless. Suddenly he has family. They should have taken the $900,000 when they had the chance.
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Re: Can You Get the State to Investigate a Failed Criminal Prosecution
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Quoting sKiTzo
This is a murder case. I've seen trials where 3 hours are spent on minute details that YOU would find "irrelevant". I've got news for you - EVERY factor and every move they made before , during, and after the alleged crime, is absolutely relevant.
Not to quibble, but it's a manslaughter case. There IS a difference. It is this inability or unwillingness to understand the legal differences that makes it difficult for many lay people to understand the legal process.
And, no, not every action by related but uninvolved parties is relevant.
Let's say you are at work and your coworker ticks you off and you thump him so badly he goes to the hospital. Your boss, in an effort to limit his and his company's liability looks to falsify time cards or make a claim that the two of you were on a lunch break when the fight took place, thus claiming that the business was not involved. YOU had nothing to do with this. When you go to trial for felony battery, should the jury be allowed to hear what the employer did? You had no part in the action, yet you would suffer from the impression left by such testimony.
No, not all factors surrounding an incident are relevant. The testimony has to be relevant to the matter at hand. If the prosecution wanted to bring it up, they could have tried and then a judge could have made a decision. they didn't - or, they were shot down. Of course, you will say that he didn't want to bring it up. But, there is nothing anyone can say that will make you think this was a fair trial.
Sorry to say but verdicts don't always go the way that some - or even MOST - people think they should. That's usually because we are outside the loop and hear only soundbites, snippets, and the bits and pieces that the biased parties want us to hear. That's also why you rarely ever here the police side of these things because laws prohibit them from discussing personnel matters - and even if it is criminal trial, there are certain things that the city and the police cannot talk about unless it comes out at trial, and then most often only what comes out can be spoken about.
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The cops didn't immediately know about the video. It was pretty clear at the time, that they thought it was going to be business as usual. When word leaked that a video existed, protesters gathered in front of the FPD. According to internal affairs, this is when they were allowed to rewrite their reports and get their stories straight. If you are REWRITING something - you are CHANGING the original content. You're not going to rewrite it just to copy down the same thing. Finding out about the video, and then scurrying to rewrite the reports is soooo very relevant.
I don't know anything about an alleged re-write. RE-writing would be wrong, and under certain circumstances could be illegal. But, you have to be careful. The source of this information may be unreliable, may only be telling half the story, etc. We might also be talking about statements to IA, and NOT police reports. Often, if evidence appears that contradicts a witness statement, we will tell them, "Uh, you sure you wanna go with that? We have evidence that might cast a different light on it." That way we get BOTH accounts and it gives us a good gauge to use to determine veracity of the witness (or officer under suspicion) involved.
Unless you know, specifically, what happened and why, you are merely spinning the news story (which likely doesn't have the inside scoop) to reflect your bias.
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If they face possible charges, they are not supposed to be afforded the opportunity to watch the video. Being the team player that he is, Rackaukas let them review the vid several times. It's nice that they found such favor from the guy who is supposed to be prosecuting them...It's a total conflict of interest.
A little thing called "Discovery" ... you know, the law. Even former cops who are defendants get to seek that. If you get busted for something and there's video, guess what, YOU get a copy!
Also, it is a common tactic to show video to suspects and let them try and wrangle their way out of things - lock them into a story, or even convince one of them to roll over on his compatriots.
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Cops' testimony is no longer "golden" as it once was. The fact is, there are cops that lie.
There are some. But, the motivation to lie in most instances just is not there. But, the weight of an officer's testimony varies by locale.
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I'm not so sure that the family will cash in big. After all, the guy was homeless. Suddenly he has family. They should have taken the $900,000 when they had the chance.
The city will weigh the cost for a prolonged civil suit (likely to be at or near $100,000) and the accompanying year or two of added publicity and decide they should probably cut their losses and offer a settlement that will likely be in the mid to high 6 figures. Homeless or not, this guy has potentially given his heirs a payday.