By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
District Attorney Tony Rackauckas will fail to convict two Fullerton police officers charged with felonies as a result of the July 2011 beating death of Kelly Thomas, a 36-year-old, unarmed homeless man.
That's not my guess, but rather the confident prediction of John D. Barnett, the veteran criminal-defense attorney for Manuel Ramos, who is facing a second-degree murder charge.
While it's commonplace for defense lawyers to belittle prosecutors and inflate their own courtroom prowess, Barnett isn't a cheap publicity hound. Indeed, journalists such as myself who've covered his trials quickly learn he's a superb, gentlemanly lawyer who can play hardball when necessary. I haven't always agreed with his interpretations of evidence, but it would be foolish to not pay attention when he speaks. Few, if any, other lawyers in the region understand the minute legal angles that can produce victories from defenses that once seemed impossible.
We recently ran into each other at Orange County's central courthouse, and he politely but firmly lectured me on the media's role in having convinced the public that Ramos is a monster.
"What is reported has a tremendous impact," he said.
True enough: Based on the facts provided by Rackauckas, who says he was disgusted by an unnecessary killing, and the photograph of Thomas' gruesomely battered face after six cops finished with him, I've labeled the police savage killers worthy of public contempt. I've even praised the DA for filing felony charges against Ramos and his colleague, Jay Cicinelli.
But Barnett believes I've reached faulty conclusions based on misinformation.
"It [the Thomas killing] didn't happen the way Mr. Rackauckas said it happened," said Barnett, a Laguna Beach-based lawyer who specializes in defending Southern California police officers accused of wrongdoing. "I think a lot of people are going to be surprised when they learn the facts."
In Barnett's view, the biggest misconceptions involve his client. He thinks Rackauckas erred by giving the impression that Ramos was beating the hell out of Thomas to the very end of the incident. That the DA filed the most serious charge against this cop underscores the notion that he is the most responsible for the death.
But according to Barnett, video evidence proves that none of the final blows to Thomas' head during the later portion of the beating was made by Ramos.
"He was holding his feet," he said.
Two veteran law-enforcement sources familiar with the evidence in the case confirmed Barnett's assertion. Said one of them, "Ramos was nowhere near [Thomas'] head at the end. He's kneeling at his feet. He's exhausted [from the beating], but he's not striking any of the final blows."
If those characterizations are accurate, Barnett—who helped LAPD officer Theodore Briseno win an acquittal in the infamous Rodney King beating that sparked the 1992 LA riots—may have a significant point to argue to a jury.
But Susan Kang Schroeder, the DAs chief of staff, dismisses the angle.
"That's true [that Ramos wasn't beating Thomas at the end]," said Schroeder. "So what? Tony's never said he hit him the whole time. His point is that once you set something criminal in motion, you are responsible for all of the acts."
Barnett isn't claiming that Ramos was a relatively uninvolved participant in the killing of Thomas, an incident that began, according to law-enforcement records, with a telephone complaint about the homeless man to police by an employee at Fullerton's Slidebar Rock-N-Roll Kitchen. He acknowledges that Ramos was a key player from the outset, but, he says, the officer used the force necessary to gain control of "a violent, struggling" suspect, who suffered from schizophrenia. Michael D. Schwartz, Cicinelli's defense attorney, supports that argument.
A second Rackauckas error was doctoring Ramos' pre-beating quote, according to Barnett. At his September press conference announcing the arrests of the two cops, the DA won international attention by telling reporters that Ramos slowly put on gloves as he towered over Thomas and said, "See my fists? They are getting ready to fuck you up!"
"That's not what he said," Barnett told me. "What he said was, 'See my fists? They are getting ready to fuck you up if you don't comply or do what I say" [his emphasis].
To the defense lawyer, the additional words make a huge difference because "It's clear that police officers have every right to use force or the threat of force to gain compliance in certain situations," he said. "The evidence will show that Kelly Thomas kept fighting and the officers were surprised by his strength."
Again, Schroeder disputes the defense angle.
"Yeah, Tony didn't give a blow-by-blow of what everybody said during his speech, but we put up [on a screen at the press conference] all the statements. We aren't trying to hide anything."
Barnett's most controversial lines of defense are going to generate intense ridicule among the thousands of people who protested the killing because he will give a future jury an unflattering portrait of Thomas as a man who posed a threat to the cops' safety. He said the victim had a 1995 violence-related conviction, was a thief and—are you ready for a bombshell assertion?—carried a hatchet.
I made sure I correctly heard the claim.
"He was known to carry a hatchet," Barnett repeated.
Ron Thomas, the victim's father, has acknowledged to the Weekly that defense lawyers will try to taint his son, but he's labeled the accusation that Kelly was violent "a lie."
In the aftermath of the Thomas killing, Ramos received death threats and was forced to live in hiding. There were also reports that he was placed on a suicide watch at one point. This is where Barnett returns to his position that members of the media have unfairly inflamed passions against his client.
"Look, this image of my client being violence prone is wrong," he said. "In fact, the truth is just the opposite. This is a guy who had a reputation for not being tough enough."
Barnett also says there is a potent, pro-defense point that's looming.
"We don't know the cause of death," he said.
His point is that if the coroner can't say which blows caused Thomas' death, then how can a jury confidently assign responsibility beyond a reasonable doubt?
I tried to follow up, but he cut me off.
In the Rodney King case, Barnett managed to convert alarming bystander video of the beating into an asset for the cops. In the infamous Haidl gang-rape trials involving the spoiled teenage son of an assistant Orange County sheriff, he attempted but failed to prove that an unconscious 16-year-old girl deviously orchestrated her own rape. Now, in the Thomas killing, there's sensational video of cops beating a man to death. None of us knows if Barnett can turn Exhibit 1 in the prosecution's case into a defense asset, but we know he's going to give it his best shot.
"It's going to be very interesting," he said.
The show begins March 28 at a preliminary hearing, at which Rackauckas will battle the defense to determine if the government's case reaches minimum standards to proceed to trial. Don't paint the often-colorless DA as the underdog, though. Three decades ago, as a hotshot, rising prosecutor, he was good enough to convict an innocent man of murder.
This column appeared in print as "Attorney for the Damned: Veteran criminal-defense lawyer John D. Barnett insists his cop client didn't murder Kelly Thomas."