Here is a guest blog from Mark Cabaniss, an attorney who has worked as both a prosecutor and as a public defender. Mark has written several interesting pieces on the Kelly Thomas case over at GreaterLongBeach.com.
Reportedly, the Orange County DA is waiting for the coroner’s report before deciding whether to file charges against the six Fullerton police in the beating death of Kelly Thomas. As the medical evidence comes in, it looks increasingly likely that charges will be filed. But will the charges, if they are brought, be minimal, or will they be serious? Will they be the most serious charges warranted by the evidence? We don’t know. What we do know is that Kelly Thomas died after six Fullerton police severely beat him. The DA is still waiting for the official cause of death to be determined, but for the sake of this article, I am going to assume that the death came about as a result of the beating. Now let us make two further assumptions: First, that the police were committing a crime during the beating leading to the death, and second, that the death was unintentional, i.e., an unplanned consequence of the beating. If that is what happened, that the police illegally beat Kelly Thomas and he subsequently died as a result of that beating, then there are two ways to charge the case under California law, depending on whether the police were committing a misdemeanor, such as simple battery, or a felony, such as kidnapping or torture. If the underlying crime was a misdemeanor, then the case would properly be charged as involuntary manslaughter. But if the underlying crime was a felony, then the case would properly be charged as felony murder.
The difference is simple. Suppose you get in a bar fight and get your arms around a guy, trying to throw him down. He stumbles out of your grasp, but, unfortunately for you, (and him,) he trips and falls, smacking his head on something hard, killing him. This would be a textbook case of involuntary manslaughter, because the death was an unintended consequence of your misdemeanor, i.e., simple battery. Now consider the same hypothetical, only this time you grab the guy not in a bar fight, but in a kidnapping. Again, he trips, falls, and dies. Now this is a case of felony murder, since the death resulted from your felony, i.e., kidnapping.
The important point regarding these two hypothetical examples is that in both cases it does not matter at all whether the death was intentional or not; you are still guilty. Whether you are charged with involuntary manslaughter, punishable by imprisonment of 2, 3, or 4 years, or with felony murder, punishable by 15 years to life, or death, is entirely dependent on whether the DA has what it takes to charge you with a felony. In the Kelly Thomas case, the DA has already said that he has seen no evidence of intent to kill; but, as we have seen, with a felony murder charge, the DA doesn’t need to prove intent to kill: Any death, even unintentional, is a murder if it arises out of the commission of any of many dangerous felonies. It is remarkably easy to prove.
Consider the following example, the recent California case of People v. Wilkins. A burglar was driving down the road when some of the stolen items from the burglary spilled from his truck onto the road. A driver behind him swerved, wrecked, and died. The burglar was guilty of the murder of the driver, because the driver’s death, even though completely unintentional, occurred as a result of the burglar’s felony, i.e., the burglary. Wilkins is currently serving a sentence of 25 to life for his crime of felony murder.
Turning to the Kelly Thomas case, and again assuming that witness accounts that have appeared in the media are borne out by the investigation, there are several felonies, such as aggravated battery, torture, and mayhem, that could be charged to make a case of felony murder. But the best of these is felony murder with the crime of mayhem, California Penal Code 203, as the predicate felony. The death is easy. Obviously, the death came as a result of the crime, if there was a crime. So the hard part in this case, if there is a hard part, is proving mayhem, which is defined thus: when a person “unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, [he] is guilty of mayhem.” In the common law, mayhem meant literally cutting off a finger, etc. But California courts have interpreted mayhem to cover injuries such as a broken ankle, because it took over six months to heal; burn scars; and permanent vision impairment.
The recent medical reports released by the attorney for Kelly Thomas’s parents say that he suffered from a severely broken nose, a broken cheek, three broken ribs, taser wounds, a collapsed lung and a brain injury. If his facial disfigurement would have led to extensive facial scarring, requiring plastic surgery to correct, that could qualify as mayhem. If a physician were to testify that Kelly’s brain injury would have been permanent had he lived, that could also qualify as mayhem.
Obviously, Kelly did not live to complain of blurred vision, loss of hearing, etc., so any such evidence of mayhem type injuries would have had to have been noted by the physicians at the hospital or collected by the coroner from the cadaver. Perhaps someone found a detached retina, part of the tongue bitten off, damage inside the ears, extensive damage to the throat, or other evidence to prove the crime of mayhem as a predicate felony for a capital murder case.
Capital murder, as in, death penalty? Yes, aside from being easy to prove, the really nice thing about a mayhem charge is that it makes this a death penalty case, and, better still, all six cops could be executed. That is important, because as Samuel Johnson observed, “when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” A charge that could kill all six would be very useful to the DA, because he could use it to persuade those with less involvement to testify against those with more involvement, in exchange for plea deals with no death exposure.
In this case, there have been reports that one of the cops was attempting to put handcuffs on Kelly, but had to stop because another cop was still bashing Kelly’s head in, splashing so much blood around that the cop with the handcuffs had to stop. The DA might want to give the guy with the handcuffs a deal to testify against the basher, for example.
At any rate, none of the cops is talking to the DA’s investigators. When faced with the blue wall of silence, the DA could use a nice sledgehammer to break it down, such as a mayhem charge, putting all six police in jeopardy of death. And the DA wouldn’t have to worry about intent to kill, since it is legally irrelevant to a felony murder charge. The case would be simple: Did the police commit a felony during the killing of Kelly Thomas? Did they commit the crime of mayhem? Only a jury can answer, if a jury is given a chance, if the DA brings charges, if the evidence that the DA awaits supports charges. We shall wait and see.