L.A. Verdicts Could Stymie Possible Civil Rights Cases

AMERICANS may have been reassured by Bush administration statements that the police acquittals were not the end of the legal process in the Rodney King police-brutality case.

But it will be difficult for the Justice Department to gain a conviction on charges of federal civil rights violations, if it decides to pursue them, say legal experts. The Justice Department has moved its own investigation of the March 1991 incident into high gear and has promised a quick decision on whether to prosecute the case.

"The fact of last week's acquittals already shows that it's difficult to get a conviction in this case," says Joseph diGenova, a former United States attorney.

Although public-opinion polls show that a large majority of the American public disagrees with the jury's conclusion - given the seemingly irrefutable evidence of the videotape that captured the beating - the defense in a federal- court trial could sway a new jury as it did in the state trial. The police officers' defense was that such force was necessary to subdue a large, powerful man whom they believed to be high on drugs and possibly armed.

To decide to convict, the jurors had to be sure "beyond a reasonable doubt" that the officer in question was guilty of a criminal offense. Such a high standard is difficult to achieve in cases against police officers, whom the public is inclined to give the benefit of the doubt. The "reasonable doubt" standard would also hold in a federal trial. Flaws in state case

There can be some advantages to trying a case again with comparable evidence, says Prof. Sheldon Krantz of American University law school. Federal prosecutors can learn from the state's mistakes. They can gain insights on jury selection (which in the state case had no blacks) and in the selection of trial venue (a largely white, well-off community).

"But," says Professor Krantz, "it is difficult to make a constitutional civil rights case, where there are issues of proving intent. The offense needs to be egregious, though this may be that kind of case."

One of the pitfalls of retrying a case is that any inconsistencies in repeat testimony from witnesses could hurt the prosecution's case.

One mistake the state prosecutors made was not to put Mr. King, the black motorist whom police beat, on the witness stand, says Mr. diGenova. He acknowledges that King would not be the perfect witness: His blood alcohol level was twice the legal limit at the time and his recollections would be questionable; he has a criminal record; and he has an $83 million claim pending against the city of Los Angeles, a point diGenova calls problematic but "not debilitating."

But, he adds, King could explain his spotty memory as a result of the beating. And, more important, his testimony could help "humanize" the process, taking away from some of the defense's ability to put its own spin on the videotaped scene, says diGenova.

Another avenue federal prosecutors could explore is the treatment of King's companions, both of whom claimed they were beaten, too, and filed suits. That point came up in the trial but was not pursued by the prosecution. Successive prosecutions

"Double jeopardy," being tried twice for the same offense, which is illegal, does not prevent federal pursuit of the case. State and federal jurisdictions are separate, so double jeopardy does not apply.

The Justice Department has a long history of "successive prosecutions" - pursuing cases that it felt were inadequately decided at the state level. It employs two civil rights statutes dating back to 1870 that were used during the 1960s. One bars a conspiracy to deprive someone of constitutional rights. The other prohibits law enforcement officers from violating a person's civil rights.

For example, the Justice Department gained convictions against several Mississippi police officers in the deaths of three civil rights workers, a 1964 case that inspired the movie "Mississippi Burning."

If the Justice Department decides to pursue the King case, it has the option of looking for additional defendants, such as officers on the scene who were not charged, says diGenova.

But in order to take the case, the Justice Department need not uncover any new evidence, says Yale law professor Drew Days, who headed the department's civil-rights division under President Carter.

Professor Days urges a thorough review of trial transcripts and state prosecution procedures before reaching a decision on how to proceed. Legal observers agree, however, that political pressure to seek charges weighs on the government. A decision to prosecute would carry the risk that a new jury could also acquit, possibly triggering more rioting.

Another legal avenue remaining is the charge of excessive force against Officer Laurence Powell, on which the jury deadlocked.

But diGenova says he would be "very surprised" if that count was retried. He predicts the state, which holds a hearing May 15 on whether to retry, will defer to the Justice Department's actions on the entire case.

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