Like most
people who have watched the fatal beating of Kelly Thomas by
Fullerton police officers, I was dismayed at a jury’s decision
to acquit two
of them. Actually, dismayed does not quite cover it.
Flabbergasted is more like it. It is hard for me to
imagine how 12 people agreed that it was reasonable to view the
appalling violence that Manuel Ramos and Jay Cicinelli
committed in subduing a pleading and apologetic Thomas as
legally justified. At the very least, the verdict seems to reflect
a disturbing deference to police, who too often get away with
actions that would be universally viewed as crimes if carried out
by someone without a badge.
Then again, I did not sit through the trial. I did not hear the
defense dissect the video frame by frame, arguing that at every
step police responded in a way that was appropriate given their
training. Something similar happened in the 1992 trial of the Los
Angeles cops who beat Rodney King. What looked like an obvious case
of police brutality seemed more ambiguous to the jury after it was
broken into its component pieces.
In both cases, I thought the jury got it wrong. But that
conviction, by itself, does not justify trying the defendants again
in the hope that another jury will get it right. That’s what
happened
in the Rodney King case: Two officers who were acquitted by a state
jury in 1992, a decision that triggered riots in the streets of Los
Angeles, were convicted by a federal jury in 1993. It looked a lot
like a justice system capitulating to mob violence. It also looked
a lot like double jeopardy, which the Fifth Amendment notionally
prohibits. It supposedly was not, thanks to the “dual sovereignty”
doctrine, which sanctions serial state and federal prosecutions for
the same actions based on the fiction that relabeling them makes
them into something new.
The understandable outrage provoked by the Kelly Thomas verdict
may likewise lead to federal charges, which his family
would like to see. The FBI, which has been looking into the
case since 2011,
says it will now examine the evidence and testimony presented
at the trial before deciding whether to charge the acquitted
officers with violating Thomas’ civil rights. But that sort of
review cannot answer the question of whether federal charges are
appropriate. Instead it will reveal whether federal prosecutors
might be able to obtain a conviction, which is not the same thing.
In the absence of evidence that the process by which Ramos and
Cicinelli were acquitted was fundamentally corrupt, such that their
trial was a sham—something no one has alleged—the federal
government has no business intervening.
To try Ramos and Cininelli again in anticipation of a different
result is the very definition of double jeopardy, no matter what
the Supreme Court says. That sort of second-guessing invites
arbitrary, politically driven prosecutions that threaten the
innocent as well as the guilty. If it can be wielded against brutal
cops you think should have been convicted, it can be wielded
against defendants whose acquittals were
entirely appropriate. The safeguards that defendants enjoy
under our Constitution, including the ban on double jeopardy, do
not always produce just results, but they are better than the
alternative.
The original Reason TV story on Thomas’ death:
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