As Jury Deliberates in King Case, Judge's Instructions Loom Large

Defense, prosecution both won points in wording of jurors' mandate. L.A. POLICE TRIAL

By , Staff writer of The Christian Science Monitor

AS the jury in the Rodney King beating case begins its third day of deliberations today, trial watchers say each of the 12 members will have to resolve three main questions: What is "reasonable use of force?" What is guilt "beyond a reasonable doubt?" How do you gauge a defendant's "intent?"

"In laymen's terms, this case is asking did these four officers know what they were doing was wrong and go ahead and do it anyway?" says Myrna Raeder, chairman of the American Bar Association Criminal Justice Committee on Federal Rules of Procedure and Evidence. To establish that, she says, jurors must measure everything they have seen and heard about the Los Angeles police officers' actions against what the law says is proper.

"That is a very, very difficult task," Ms. Raeder says. "The issues are complex, indeed, and the wording of the jury's instructions is open to much interpretation."

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Four Los Angeles Police Department (LAPD) officers are facing federal civil rights charges for the March 3, 1991, beating of Mr. King.

Three of the defendants - Officers Laurence Powell and Theodore Briseno and former Officer Timothy Wind - are charged with "willfully violating Rodney King's constitutionally protected right to be free from the use of unreasonable force during arrest."

Sgt. Stacey Koon is charged with violating King's Fifth Amendment right to be kept free from harm while in custody. If convicted, the officers face imprisonment of up to 10 years and fines of up to $250,000.

In the state criminal trial of the officers last year, which ended in acquittal, the jurors had to decide whether the officers used excessive force in arresting King. By contrast, in the federal trial the jurors must judge whether the officers intended to violate King's civil rights.

Either acquittal or conviction would require the agreement of all 12 jurors.

To help the jury reach a verdict, US District Judge John Davies on Saturday read 44 pages of instructions to the jurors. Experts say several entries are key:

* On excessive force: "The `reasonableness' of the use of force must be judged from the perspective of a reasonable officer under the same circumstances, rather than with the perspective of perfect hindsight. In doing so, you may consider the fact that police officers are often forced to make judgments, in circumstances that are tense, uncertain, and rapidly evolving, about the amount of force that is necessary in a particular situation."

The words "tense," "uncertain," and "rapidly evolving" were included in the instructions by Judge Davies over the objections of chief prosecutor Steve Clymer. "That was a victory for the defense," notes Laurie Levinson, a professor of law at Loyola Marymount University in Los Angeles. "They favor the defense description of events."

* On "intent." "The government may meet its burden [in proving intent] even if a defendant was motivated by fear, anger, or some other emotion," the judge's instructions say.

"This language favors the prosecution," notes Dan Caplis, a trial lawyer who has been following the case. "It takes away some of the excuses that the night of the arrest was highly charged by the drama of a high-speed chase."

* On the burden of proof: "The government has the burden of proving every element of the charge(s) beyond a reasonable doubt. If it fails to do so, you must return a verdict of not guilty," the judge's instructions say.

"Federal courts have always been very strange about giving [jurors] any kind of idea about what is reasonable doubt," Raeder says. "When they have tried, they feel they always manage to favor defense or prosecution. They end up splitting hairs over being 99 percent sure or 65 percent sure."

*& On the right against self-incrimination: "The fact that a defendant did not testify must not be discussed and considered by the jury in any way," the judge's instructions say. "No inference of any kind may be drawn from the fact that a defendant decided to exercise his privilege under the Constitution and did not testify."

This passage is crucial because of the last-minute choice by Officer Powell - the policeman who delivered most of the blows to King - not to testify on his own behalf.

"It was really a gamble for Powell not to testify," says Prof. Robert Pugsley of Southwestern University School of Law in L.A. "Even though instructions protect that right, jurors tend to wonder what the defendant had to hide. It usually works against them."

Now that the judge's instructions have been read and the jury is meeting behind closed doors, speculation is growing about what decision the jurors will reach - and how long the verdict will take.

Some argue the decision will be delivered soon, because the jury members had to take the initiative (by, for example, filling out a 53-page questionnaire on their attitudes) to get selected in the first place.

But other experts believe the racial diversity of the jury - nine whites, two blacks, one Hispanic - suggests unanimity may be long in coming.

There is also the possibility of a hung jury.

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