Time - Man of the Year/Time_Man_of_the_Year_Compact_Publishing_3YX-Disc-1_Compact_Publishing_1993.iso/moy/081792/0817110.000

Text File | 1993-04-08 | 5KB | 112 lines

                                                                                LAW, Page 43

Try, Try Again


Four L.A. cops are charged with violating Rodney King's civil
rights -- but convicting them won't be easy

By RICHARD N. OSTLING -- With reporting by Sally B. Donnelly/Los
Angeles and Elaine Shannon/Washington


    The mobs that torched and looted South Central Los
Angeles last April reacted to the verdict with primal rage. Few
Americans condoned the violence, but many shared the rioters'
shock and amazement at the trial's outcome. After all, the
grainy videotape of Rodney King's 81-second beating at the hands
of L.A. cops looked like a clear-cut case of police brutality
against an unarmed and helpless citizen. A flawed state
prosecution, a shrewd defense and a white suburban venue had
conspired to produce the stunning outcome: acquittals for four
officers. When federal authorities indicted the four last week
on civil rights charges, it was widely believed that the
defendants would not get off so easily the second time around.

    That assumption may be ill-founded. Legal experts quickly
dismissed defense claims of double jeopardy -- the impermissible
prosecution of a person twice for the same offense -- because
jurisdiction in federal civil rights charges is distinct from
that of the state. Yet in proving that the officers violated
King's civil rights, the feds must clear the hurdle that tripped
up the state prosecutors: convincing a jury that the police used
excessive force. "The issue is ultimately the same," says
Professor Erwin Chemerinsky of the University of Southern
California Law Center. "Was it reasonable or excessive force?
If the jury finds that by community standards it was excessive
force, it will convict. If the case can be made that it was
reasonable force in that situation, then they will acquit."

    In the first trial, the traditional bias favoring the
police was bolstered by a controversial shift of venue from the
city to suburban Simi Valley, a change that resulted in the
selection of a conservative jury with no black members. The
defense will not enjoy this advantage in the current case, which
could be heard as early as October: the federal jury pool is
drawn from the entire metropolitan area, and will probably
include some black and Hispanic members with a different
perspective on the trustworthiness of the police. Also, the jury
may feel pressure not to acquit the officers for fear of
sparking a new, possibly angrier wave of rioting.

    The prosecutors, however, face a hurdle they did not have
in the first trial: they must prove that the defendants
specifically intended to deprive King of his civil rights. The
Reconstruction-era statutes under which the officers have been
charged were used during the civil rights movement of the 1960s
to help federal authorities convict police miscreants who could
not be found guilty in Southern courts. The statutes had earlier
been challenged for being too vague, which prompted the Supreme
Court to sharpen their focus by requiring prosecutors to
demonstrate a "specific intent" to deprive someone of a
federally guaranteed right.

    Intent requires "a higher burden of proof" beyond merely
establishing that excessive force was used, observes Drew S.
Days III, of the Yale law school, who headed the civil rights
division in the Carter Administration's Justice Department.
Proving specific intent is "difficult, but not impossible," says
Mary Frances Berry, a member of the U.S. Civil Rights
Commission. Since 1988, the Justice Department has filed 99
civil rights cases involving official misconduct. It has won
convictions in three-quarters of them.

    The notion of intent, though hard to prove, opens up
avenues that were not available to the state prosecutors.
Federal attorneys will be able to introduce evidence showing the
police were predisposed to react with excessive force -- not
just toward minorities but also toward anyone under arrest. In
contrast to the earlier criminal case, moreover, federal
prosecutors can examine the records of the defendants in other
arrests, dig into their personnel files and even probe their
conversations for evidence of prejudicial attitudes or a
propensity toward brutality.

    Federal officials can also call some witnesses who did not
testify in state court, including King himself. The state
attorneys were criticized for not putting King under oath to
describe his beating. Federal prosecutors are almost certain to
call him, but his testimony could boomerang against them.
King's arrest record, his powerful build, his confused and
halting speech could all be used to bolster the police version
of events. Indeed, one defense attorney, Michael Stone, intends
to call King. Says Stone: "Too many people believe Rodney King's
testimony would have changed the outcome of the first trial. I
want them to see that it would not." Whether King's account
helps or hurts the federal case, his appearance is sure to
conjure up the specter of the conflagration last April and of
his own poignant appeal: "Can we all get along?"