TIME: Almanac 1993/TIME Almanac 1993.iso/time/051192/05119925.000

Text File | 1992-09-10 | 15.6 KB | 312 lines

                                                                                COVER STORIES, Page 30

LOS ANGELES RIOTS

Anatomy of an Acquittal


Prosecutors thought the videotape of the brutal beating
guaranteed a conviction. Instead it provided a reason for the
jury to find four policemen not guilty.

By RICHARD LACAYO -- Reported by Sally B. Donnelly/Los Angeles


    It seemed impossible that any jury could acquit the four
officers who were accused of beating Rodney King. How could
anyone discount the brutal vision of King being clubbed and
kicked on videotape for 81 unforgettable seconds? It seemed like
an open-and-shut case.

    In a sense it was, but not in the way most people
expected. Most of the jurors appear to have made up their mind
quickly that the officers were innocent. That left much of the
rest of the country wondering how the evidence of their own
eyes could not have been sufficient for the jury in Simi
Valley, Calif. But this trial hinged on matters both narrower
and broader than that shocking bit of videotape. The narrow ones
were fine points of law that jurors must decide upon, such as
what constitutes reasonable doubt and just how much force is
permitted under the procedural guidelines of the Los Angeles
police department. The broader matter was race, the inescapable
factor in any case in which a jury that has no black members
must choose between the police and a black man accused of a
crime.

    In the view of many legal experts in California, the
outcome may have been decided as soon as the trial venue was
moved to the dry hills of Simi Valley, an overwhelmingly white,
middle-class community of 100,000, 35 miles northwest of
downtown Los Angeles. In July a state appeals court accepted
defense arguments that the barrage of publicity and political
fallout surrounding the case would make it impossible for a fair
trial to be held in Los Angeles County. The move was surprising,
though not without precedent. In a typical year, about 10 felony
trials are moved in California. But it's been more than a decade
since one was moved out of Los Angeles, where even such
celebrity monsters as Charles Manson and the Hillside Strangler
were tried locally. And there was no place in California -- or
the nation for that matter -- where people had not seen and
reacted to the King videotape.

    Los Angeles Superior Court Judge Stanley Weisberg, who
would preside at the trial, was offered a choice of three venues
by the state judicial counsel. He rejected Orange County, a
redoubt of white conservatives just south of L.A., because its
court calendar was too crowded. The prosecution pushed for a
location in the San Francisco Bay Area: Alameda County, home to
Oakland, where the population, 15% African American, would be
a near reflection of Los Angeles, which is 10% black. But
Weisberg also rejected that option, citing the cost and
inconvenience for all sides of a venue 387 miles from L.A.

    That left Ventura County, and the town of Simi Valley,
which is just 2% black. A large part of the local citizenry
moved there to escape Los Angeles and all it represents to them:
gangs, crime, high housing prices and minorities. The place is
home to a large number of police and fire fighters. The Ronald
Reagan Presidential Library is there. Even if Simi Valley could
not be counted on to yield an old-fashioned, Alabama-style
jury, any panel chosen from there was more likely to identify
with the four white officers who had held the nightsticks than
with the one black man writhing on the ground.

    Faced with what was probably to be an unsympathetic
audience, it may not have been an advantage to Terry White, the
soft-spoken, studious-looking lead prosecutor, that he was
black. (Alan S. Yochelson, his co-prosecutor, was white.) Though
the prosecutors objected strongly when it was first suggested
that the trial be moved to Simi Valley, the pair acknowledged
that they were powerless to reverse the judge's decision once
it had been made. But they could take comfort from the fact that
juries in Ventura County had decided against the police in three
of the five police-brutality cases conducted there since 1986.
And besides -- the prosecution team had the videotape.

    But the defense would have the jury. Ten members were
white -- six men and four women. Of the two non-whites, both
women, one was Hispanic, one Filipino. Ranging in age from 38
to 65, the panel included a maintenance worker, a printer, a
retired teacher and a retired real estate broker. Three of the
jurors had worked as security guards or patrol officers in the
U.S. military. Three others were members of the National Rifle
Association. One was the brother of a retired L.A. police
sergeant.

    Even granting the difficulty there might be in winning
over such a group, the prosecutors made some serious errors in
building their case. In 29 days of testimony, the prosecution
presented only six witnesses, including a passenger from King's
speeding car and a husband-wife team of officers from the
California Highway Patrol who were present at the beating. In
contrast, the defense presented 49 witnesses, almost all of whom
were police officers or experts on law enforcement who claimed
that the defendants' conduct fell within L.A.P.D. guidelines.
White and Yochelson also failed to call any of 30 civilian
witnesses to the beating whose testimony might have contradicted
that of the defendants.

    In what may have been the prosecutors' biggest blunder,
they chose not to let King take the stand. Having him testify
might have exposed King, who once served time for robbery, to
damaging cross-examination. But it would also have compelled the
jurors to come face to face with the obscure figure in the
videotape. And King could have countered the defense attorneys'
contention that he had not been badly injured by the beating.
One of the lawyers went so far as to argue that King was not
even hit in the head, a claim that he supported with photographs
taken of King soon after the beating that showed bruises on his
body but not on his head. Though King suffered a broken leg and
several broken facial bones, some jurors said later that they
accepted the defense argument that he was not badly hurt.

    The prosecutors did elicit useful testimony from one of
the accused officers, Theodore Briseno, but it is not clear
that they gained much advantage from it. Five years ago,
Briseno was suspended without pay for 66 days, after a police
board of rights found him guilty on four counts of using
excessive force. But before the trial, he broke ranks with his
three fellow officers. On the stand he testified that they were
"out of control" on the night of the beating. He claimed that
he had tried to restrain them. Lies, countered two other
officers, who said Briseno had told them himself that there was
no misconduct involved.

    Briseno's credibility was undermined by the fact that on
the tape he too is seen delivering what appears to be one kick
to King at a key moment in the assault. It comes about midway
through the episode, at a point when King appears to have been
lying still, facedown on the ground, for several seconds.
Briseno's apparent kick appears to prompt King into groggy
motion again, which sets off another flurry of pounding from
Officers Laurence Powell and Timothy Wind. Briseno's lawyer,
John Barnett, contended that his client had not kicked King but
merely put his foot on the man's neck to hold him down so the
beating would stop.

    With race the ever present issue in the case -- King has
claimed that he was taunted throughout the beating with racial
slurs -- the prosecution did little to bring home its
significance to the jury. Prosecutor White did tell the court
that just 20 minutes before the King beating, Officer Powell had
sent a computer message to another patrol car saying an incident
that evening involving a domestic dispute at the home of a black
family was "right out of Gorillas in the Mist." That's "a racial
statement," White pointed out. "You have to wonder what was his
motive when he was beating Mr. King." But overall, the defense
made no more than faint attempts to show that racial hatred
could have inspired the officers to impermissible brutality.
That issue will now be central to the civil rights investigation
the Justice Department is still pursuing.

    "The prosecution was methodical, almost tedious in its
presentation," says Laurie Levenson, a law professor at Loyola
Law School. "The defense came out swinging from the first,
painting King as a bad and dangerous man." On the order of Judge
Weisberg, defense attorneys were not permitted to tell the jury
about King's criminal record, including his imprisonment for
robbery. But they were able to portray King as a large,
aggressive man who was legally drunk. Much was made of the
officers' claim that they thought King had gained unusual
strength and tolerance to pain because, they believed, he was
under the influence of angel dust -- the hallucinogenic drug
pcp. Subsequent tests showed no trace of the drug in King's
system.

    All of that was in keeping with one part of the defense
strategy -- to make the jurors empathize with the dangers police
officers face. The defense contended that the officers did not
dare simply to seize King and apply the cuffs for fear that the
suspect might grab one of their guns. "I tried to put the jurors
in the shoes of the police officers," boasts Michael Stone,
Powell's attorney. "We got the jurors to look at the case not
from the eye of the camera but from the eyes of the officers."
That's one more reason why the prosecution probably erred in its
decision not to call King to the stand.

    The second part of the defense strategy was to persuade
jurors that in any event, everything that appeared on the tape
was within the flexible guidelines for police procedure in
subduing a suspect. The L.A.P.D.'S policy in that area has it
both ways. It permits "minimum reasonable force" if "other
reasonable alternatives have been exhausted or would clearly be
ineffective under the circumstances." It adds that "this does
not mean that an officer has to wait until a suspect attacks."
Nightsticks cannot be used "to gain compliance to verbal
commands absent combative or aggressive actions by the suspect."

    According to the defense, that meant it was all right to
keep beating King until he assumed a "compliance posture" by
lying still and putting his hands on his head. The lawyers
pressed the point that police work -- and police -- can
sometimes be brutal, within the allowed limits. Expert witnesses
stood before jurors to demonstrate the "power swings" and
"chops" with heavy batons that are taught to police cadets.
"What are you trained to do with your batons?" a defense lawyer
asked his client on the stand. "To break bones" was the answer.

    Attorney Paul DePasquale, who represented defendant
Officer Wind, summed up the general defense line when he told
the court that his client "dealt with the situation as it
unfolded in accordance with his experience and training. His
situation was one of fear and frustration, and not pleasure in
inflicting injuries."

    All of this ate away at the strength of the prosecution's
strongest card, the videotape. Though it may seem
incontrovertible, video evidence has been discounted by juries
in other trials. A South Carolina jury last month acquitted a
man accused of raping his wife, even though he taped the
assault. Videos in less widely publicized police-brutality cases
have also failed to persuade juries.

    In the King beating case, continual repetition of the
video may have dulled its initial horror for the jury. And by
presenting the tape in slow motion, separated into split-second
frames, the defense fractured a seamless sequence of apparent
brutality into a hundred moments of uncertain meaning. Attorney
Stone contended that King can be seen attempting to rise at
several points. "In the hundredths of a second between this
photograph and this one," Stone said of one display, "Mr. King
is again coming up off the ground, and he charges Officer
Powell."

    The defense attorneys also got jurors to believe that the
prostrate King, not the skull-drumming officers, was
"controlling the incident." He could have ended the beating,
they contended, by simply adopting a compliant posture.
Insisting on the stand that King repeatedly refused to lie
facedown on the ground, Sergeant Stacey Koon contended that King
was attempting to "either escape or attack my officers." Koon
defended his part of the assault on King -- which included more
than half a dozen blows to the head from Koon alone -- as
"managed and controlled use of force."

    By the time the trial was over, the jurors would have the
defense line all but committed to memory. "King just continued
to fight," one later told the Los Angeles Times. "So the police
department had no alternative. He was obviously a dangerous
person, massive size and threatening actions . . . Mr. King was
controlling the whole show with his actions." Completing her
recital of defense positions, she added, "They're policemen,
they're not angels. They're out there to do a low-down, dirty
job."

    Another juror said she had her doubts about the officers'
innocence but was stymied by the precise terms of the
instructions to the jury. "I believe there was excessive use of
force, but under the law as it was explained to us we had to
identify specific `hits' that would show specific use of force.
It had to be beyond a reasonable doubt, and I just couldn't do
that."

    Some legal experts say that white jurors are often
inclined to give police the benefit of the doubt in cases
involving brutality, particularly if the victim is black. "I've
had cases where black clients have been beaten up by the
police," says John Powell, national legal director of the
A.C.L.U. "To be candid, I have soft-pedaled that ((in court)).
If you have an all-white jury, most white people are not
inclined to believe that the police beat blacks if unprovoked."

    In the eyes of many people, both white and black, it
appears that the jury simply chose to nullify the evidence --
to put it aside in making their decision -- which American law
allows. "The jury wanted to acquit, despite the fact that the
evidence was very clear," says Jerome Skolnick, a law professor
at the University of California, Berkeley. "They could not see
putting those nice, white policemen in jail."

    Attorney John Burton is representing Bryant Allen, one of
the other men riding in the car that night with Rodney King.
Burton contends that the jury is not so much to blame as the
prosecutors from the office of a district attorney who must
normally work with the police in convicting criminals. "That
alliance is more important than any conviction," he insists.
"From the way it was tried, I can't believe that the D.A.'s
office actually wanted a conviction in this case."

    The acquittal cannot have provided much satisfaction to
many who watched the beating of King or the televised rioting
that broke out once it was announced. The four officers still
face the possibility of federal charges for violating King's
civil rights. And the videotape will go on to haunt the nation
with its scene of what still looks like sanctioned sadism. For
most Americans, no legal argument about the stages of police
procedure can explain away those images, though legal argument
may have worked for 12 jurors in Simi Valley who were disposed
to heed it. To most Americans, black and white, in this case
good lawyering triumphed over justice itself.