Should police face federal charges in Kelly Thomas’ death? An editorial board discussion.

The editorial board here at The Times began its day with an email discussion of Kelly Thomas’ death. We frequently conduct debates on issues among ourselves while we go about our other business, to figure out whether we should weigh in on a particular topic and, if so, what sort of consensus we might be able to reach on it.

In this case, the question at hand was whether we should encourage the federal government to file charges after a jury acquitted Fullerton police officers of any crimes involving their rough handling of Thomas, a mentally ill homeless man.

The public’s sympathies were with Thomas, if not always in life, then certainly in death. The outrage over his treatment at the hands of police and his subsequent death was both far-reaching and nearly universal. And now that the trial has ended in a way that many observers consider unjust, the family has called for federal charges.

Those would necessarily be of a different sort: not whether the officers committed murder but whether they violated Thomas’ civil rights. But the key actions on which the matter would be decided are the same: Were the officers criminally out of line in their treatment of Thomas? And once acquitted, even if many people think the verdict was wrong, is it right for them to be tried again?

The conversation began with one viewpoint — against federal charges — then veered into the possibility that they were called for in this case, and then swung back, in a more nuanced way, to the idea that federal charges, though they have been crucial at times to resolving cases in which civil rights were blatantly ignored, were not called for when the verdict seems to have been reached legitimately, even if we or others think it might have been wrong.

Here are excerpts from the discussion, conducted under the email subject line “A federal case?�:

Michael McGough: Is there any reason to encourage the feds to get into this? Doesn’t sound like it to me but I haven’t followed the case. [McGough is based in Washington and covers federal issues.]

Jon Healey: I’m with Mike on this. The verdict was regrettable, but it always strikes me as double jeopardy when the feds go after someone for actions that a state jury has ruled weren’t illegal.

Karin Klein: It bothers me, too, for the feds to try someone simply because an unpopular verdict was reached. But it isn’t necessarily double jeopardy. In fact I think it’s not all that uncommon for people to face both state and federal charges when their actions may have violated both.... For example, I don’t think we object to Robert Rizzo facing both state corruption charges as well as federal tax charges.

Kerry Cavanaugh: I don’t think it would be double jeopardy, exactly. The feds, who have been looking at the incident from the beginning, would come at the case from a different perspective, that the officers violated Kelly Thomas’ civil rights. The DA brought murder and manslaughter charges, which are very difficult to prove against police officers.

Healey: I agree on Rizzo, but those are different crimes stemming from different overt acts. The violation of Thomas’ civil rights occurred during the same overt acts that the state brought murder charges on. Technically it’s not double jeopardy, but it sure feels like it.

Klein: I think the underlying question is: Is there truly a separate charge on which to try the person? Or is it really the same charge, masquerading as a different charge? Is the effort truly one to determine whether a federal law has been broken, or is it just an attempt to retry an unpopular decision?

Nicholas Goldberg, editorial pages editor: Federal civil rights investigations were used to great effect in the South when it was believed that black victims and others who suffered crimes at the hands of whites couldn’t get justice in state courts and from local juries. That happened, for instance, with the killing of Chaney, Goodman and Schwerner in Mississippi in 1964. When the state courts found the Klansmen who were accused of killing them not guilty, the feds came back with civil rights charges. I don’t think we’d want to come out against doing something like that.

[Correction, 3:07 p.m., January 14: Nicholas Goldberg wrote that the federal government had stepped in after the Klansmen in the 1964 killings were acquitted. Mississippi authorities refused to prosecute in the first place, at which point the federal government filed civil-rights charges.]

McGough: Jim Newton wrote a good editorial on why federal charges shouldn’t be brought against [Geroge] Zimmerman.

Robert Greene: Retrying unpopular defendants after they have been acquitted is extremely dangerous, not to say unfair, and should be a last resort used only in those cases in which there is evidence that an entire justice system has been co-opted and compromised and that equal justice is unattainable. That was the case with the federal civil rights prosecutions in the South. I think we’d need some credible evidence that there is something about the system in Orange County that made convictions and therefore justice impossible. So, for example, does a particular mode of jury selection prevent fair verdicts? Was the case removed from the community and forum-shopped to get a verdict sympathetic to the defense (arguably the case in the Rodney King trial)? In the Thomas case it seems there are better alternative explanations for the acquittal, not least of which is that the prosecution was handled by a political grandstander who had not handled a trial in years. Bad prosecution -- bad tactics, bad jury selection, politically motivated decisions -- should not be deemed a sufficient reason to overturn an acquittal.

McGough: Not to fog things up on this too much, but the law on what constitutes a violation of federal civil rights is pretty complex. Traditionally the idea was that the federal statute passed after the Civil War allowed prosecutions only for interference with federal rights like voting in federal elections, but there has been some expansion. In the ’60s the feds were fairly creative in stretching the notion of a civil rights violation to encompass crimes that are usually prosecuted by the state (assault, murder). I think such creativity was justified as a response to the unique problem of Jim Crow and entrenched racism in the South. I’m not sure that rationale carries over to the present day.... To cut to the chase, I think we should support federal charges only if we think this verdict was egregiously unfair and that, as in the King case, there is some systemic problem with police brutality in this jurisdiction.

By the end of the discussion, I and a couple of other board members were persuaded by Greene’s argument, but the board decided not to weigh in on the issue of a federal trial and instead is looking at a different angle on the case.

Reading this, which way would you have gone? Should there have been an editorial on the call for a federal trial? And what should it have said?

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