Kelly Thomas case: Jurors may be told to disregard some testimony

Jurors in the trial of two former Fullerton police officers accused of beating a mentally ill homeless man to death will probably be told to disregard the opinions of witnesses who said the two acted within department policy.

The admonition is expected to be part of jury instructions that are still being negotiated by attorneys in the trial over the beating death of Kelly Thomas.

“You are ordered to disregard those opinions,” a draft of the admonition says. “It is up to you to determine whether the defendants used excessive or unreasonable force based on all the evidence that has been presented in this trial but you may not consider evidence that has been stricken.”

The probable instruction results from prosecutors’ attempts to challenge the testimony of two witnesses who said defendants Manuel Ramos and Jay Cicinelli acted, for the most part, within Fullerton Police Department policy.

Ramos is charged with second-degree murder and involuntary manslaughter; Cicinelli is charged with involuntary manslaughter and excessive use of force.

Prosecutors sought the personnel files of the two defendants in the hopes of proving Ramos and Cicinelli were fired for violating department policy. The 4th District Court of Appeal on Tuesday upheld trial Judge William Froeberg’s decision to release portions of the confidential files to prosecutors.

But the findings won’t be introduced in court. Instead, jurors will probably be given the admonishment to disregard the opinions of the two witnesses, said Orange County Dist. Atty. Tony Rackauckas.

After viewing video of the July 5, 2011, incident at the Fullerton Transportation Center, Fullerton police Cpl. Stephen Rubio, a former use-of-force trainer with the department, said the actions of Ramos and Cicinelli were within department policies.

Only Ramos’ use of profanity moments before the fight began appeared to be a “slight policy violation.”

During his testimony, Sgt. Kevin Craig viewed parts of the video in which Thomas is on the ground struggling with officers.

He said that even though Thomas could be heard saying he couldn’t breathe and was apologizing to officers, Craig didn’t believe the officers should have gotten off him because Thomas continued to fight them.

Prosecutors are expected to call Dr. Matthew Budoff, a cardiologist at Harbor-UCLA Medical Center, to the stand Monday morning to testify that Thomas didn’t die as a result of an enlarged heart.

Defense lawyers have argued and presented evidence to show that Thomas died not because of chest compressions during his struggle with police, but because he had a bad heart from prior drug use.

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adolfo.flores@latimes.com

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