The lawyer for the mother of Kelly Thomas, the 37-year-old homeless man beaten to death by Fullerton police officers last July--told a judge today that District Attorney Tony Rackauckas is playing "inexplicable" games with his client's victim rights to access prosecution evidence.
According to Cathy Thomas attorney Brian N. Gurwitz, the DA privately offered in January to show Thomas video evidence of her son's beating only if she agreed in writing that the access was based on Rackauckas' kindness rather than in compliance with her October 2011 California Public Records Act request.
Rackauckas' move to share the video is seemingly contrary to his public stance in sworn legal briefs that, "based on my many years of experience prosecuting criminal actions, it was, and still is, my strong belief that the disclosure of any of the requested information or records to Cathy Thomas at the present time could endanger the successful prosecution of these crimes and hinder my ability to seek justice for the death of Kelly Thomas."
Gurwitz, a former high-ranking member of Rackauckas' office, called the DA's offer to show the video evidence to his client while at the same time claiming that her access to the records might wreck his case against officers Manuel Ramos and Jay Cicinelli "inexplicable."
Gurwiz rejected Rackauckas' proposed side deal. In a pending proposed court order, the DA is asking Orange County Superior Court Judge Linda S. Marks to block Cathy Thomas' access to any records. Gurwitz is seeking a court order forcing the DA to comply with what he says is state law.
"Logically, Mr. Rackauckas cannot truly believe that 'disclosure of any of the requested information or records' to Ms. Thomas would compromise his ability to prosecute the underlying criminal case," Gurwitz told Marks in an eight-page brief. "If that were true, there is no way he would have offered to have her view the central exhibit in the case."
An unamused Susan Kang Schroeder, Rackauckas' chief of staff, said any legal inconsistencies are on Gurwitz's part.
"We have maintained a consistent legal opinion," Schroeder told me. "Victims are not entitled to possess any police reports or evidence. We don't want their potential testimony to be impacted."
According to Schroeder, Gurwitz is "playing" legal games with his client's emotions all for courtroom grandstanding. She says that Rackauckas made the same offer to Cathy Thomas that he did in January to Ron Thomas, her ex-husband.
"We allowed Mr. Thomas to see parts of the video with the sound off several times," she said. "He's been gracious and obviously places trust in us."
Asked why Mr. Thomas--who signed a non-disclosure waiver--was allowed to see the video, Schroeder would only say it was "for trial preparation reasons."
But Gurwitz says there is a major, unresolved legal issue.
"Ms. Thomas and her counsel certainly appreciate [the DA's] newfound willingness to allow her to view the video, roughly three months after denying her public records request for access to it," he said. "But that same willingness devastates the veracity of his declaration to the effect that disclosure of any of the requested information or records would interfere with the prosecution's case."
Schroeder called Gurwitz's logic "apples and oranges," and said patience is in order.
"Everybody will see the video," she said. "It's just a matter of time when it's shown at the upcoming preliminary hearing."
Marks will hear Gurwitz and Rackauckas battle during oral arguments tomorrow [UPDATE: after this story, the court re-scheduled the hearing to take place March 8] in Orange County's Central Courthouse in Santa Ana.
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A criminal preliminary hearing for Ramos and Cicinelli is scheduled for March. After their arrests, the officers pleaded not guilty and their allies claim appropriate force was used to restrain an allegedly combative Thomas. Four other cops at the scene were not charged.
This week, an independent investigator issued a report clearing the Fullerton Police Department of purposely lying to the public in the wake of Thomas' alarming, gruesome death.
--R. Scott Moxley