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Double standard for Fullerton officers to see video, lawyer says

August 12, 2011 |  4:57 pm

Kelly thomas(This post has been corrected. See note below for details.

An attorney for Kelly Thomas' parents questioned Friday how the department could let the six officers involved in the deadly encounter with the homeless man watch of a video of the violence when authorities won't release it publicly because they fear it will taint witnesses.

Fullerton's acting police chief, Kevin Hamilton, acknowledged this week to The Times that the department had allowed officers involved in the altercation with Thomas to watch a video of the incident before writing their reports about it. Hamilton said supervisors allowed the review so that the officers would have a chance to refresh their memory and write an accurate account.

"They don’t want to taint witnesses' testimony and yet they don’t seem to have problems with allowing those same tapes to taint the officers' testimony and witnessing of events," said Garo Mardirossian, an attorney for Ron and Cathy Thomas. The attorney filed a legal claim against the city Wednesday alleging the officers beat Kelly Thomas to death.

Fullerton's action is at odds with the way many other police departments deal with serious use-of-force cases. The LAPD's former inspector general, Jeffrey Eglash, said that allowing police to look at video before giving evidence is a "bad practice."

Photos: Fullerton residents protest death

"You want each person's recollection. I would look at the videotape like another witness," he said. "It allows the officers to conform their statements to other evidence rather than getting their independent witness recollection. It is not a practice that advances the truth-seeking."

LAPD's practice is to not allow officers to review videos unless authorized by internal affairs, but the department allows an exception for footage from in-car video cameras.

Hamilton said there was no hidden agenda in allowing the officers to see the video.

"Sometimes audiotapes or videotapes can refresh an officer's memory to what happened and then they can write about it," he said. "The videotapes were not shown to the officers in an effort to flavor anything."

He added: “The reason we do that is that we want an accurate accounting in the police reports.”

Hamilton acknowledged Friday, however, that had the department known the officers might become suspects in a criminal investigation, they might have reconsidered the stance.

“In the rearview, with 20-20 hindsight, would we have changed some things? Maybe,” he said. “But in the initial phase in the investigation, are we thinking that we’re going to be looking at criminal charges of our officers in every case where there’s use of force? If that were the case, an officer would never review a videotape when there’s use of force, never review an audiotape when there’s use of force.”

The deadly incident occurred July 5 while officers were investigating reports of someone trying to break into cars at a downtown Fullerton transit center.

The officers tried to search Thomas' backpack, then the encounter escalated after Thomas ran. Witnesses said officers beat and kicked Thomas and used a Taser on him multiple times. He died five days later after being removed from life support.

Mardirossian, the lawyer for the Thomases, said the officers brutal beat Kelly Thomas while he was subdued. He said that though six officers are involved, he does not believe they all took part in the alleged assault.

"We do believe that there at least three" involved, he said. "We are hoping one or two of these officers will come forward and break code of silence ... and tell us why they continued to beat Kelly Thomas after he was completely motionless."

Hamilton, however, said he has seen the video and it shows a struggle between the officers and Kelly Thomas, a 37-year-old man with a history of mental illness.

The circumstances surrounding Thomas' death are already under criminal investigation by the FBI and Orange County district attorney's office.

The Fullerton City Council on Friday directed its attorney to draw up a contract to hire a police watchdog to review department policies and conduct an independent review of Kelly Thomas' death. The contract with Michael Gennaco is expected to be approved next week.

Gennaco oversees Los Angeles County's Office of Independent Review and daily scrutinizes the L.A. County Sheriff's Department's actions.

The council's decision came after a closed-door meeting to discuss the incident and its impact on the city.

 Photos: Fullerton residents protest death of homeless man

Also Friday, local blogger Tony Bushala submitted paperwork to the city clerk to begin a recall petition against Mayor F. Richard Jones and City Council members Pat McKinley and Don Bankhead. The three, along with Police Chief Michael Sellers, who has gone on medical leave, have come under fire for their silence on the Thomas case.

"The best department in this country could improve, and that's what we're looking to do," Gennaco said. "I can't tell you, because I don't know, where Fullerton falls on the range."

For the record, 6:35 p.m. Aug. 12: A previous version of this post incorrectly spelled Garo Mardirossian's last name as Mardorissian.


 -- Richard Winton and Abby Sewell

Photo: Kelly Thomas.