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
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.
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.
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.
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.
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