US Prosecutors to Try Los Angeles Policemen on Civil Rights Charges

Feds will have to work to prove guilt, but experts applaud retrial

UNITED States prosecutors may be taking a big gamble by indicting four Los Angeles police officers of civil rights violations in the videotaped beating of Rodney King.

The officers, who are to be arraigned today in US District Court in Los Angeles, were acquitted on April 29 by a local jury of using excessive force against Mr. King.

Unless the US Attorney's office can make a substantially better case than the Los Angeles County district attorney did, this trial may also end in acquittal - which could trigger the same sort of rioting and looting that followed the first verdict.

Nevertheless, most legal experts applauded the Justice Department's decision to seek a grand jury indictment, which was unsealed last week.

"It was absolutely essential that federal civil rights charges be brought because a grave injustice was done at the first trial," says Peter Arenella, a professor at the University of California, Los Angeles, Law School. "It is necessary to reassure the minority community and the public at large that justice can be done." Right to reasonable arrest

The federal indictment charges that Officers Theodore Briseno, Lawrence Powell, and Timothy Wind "willfully" violated Mr. King's Fourth Amendment right to a reasonable arrest. It further charges that Sgt. Stacey Koon violated the due-process clause of the 14th Amendment by failing to restrain the other officers when they beat and kicked King on March 3, 1991.

To win their case, federal prosecutors will have to prove not only that the officers used excessive force in arresting King, but that they did so with the express intent of violating his civil rights.

"It's a highly technical distinction, but there is a higher burden of proof" in this sort of case, says Drew Days, former head of the Justice Department's civil rights division. "Given the same incident, all other things being equal, the chances of success in a federal prosecution are less than in a state prosecution because of the `intent' standard."

In light of the higher burden of proof, and juries' traditional reluctance to convict police officers, why did federal prosecutors choose to retry the policemen?

Clearly, there was strong political pressure to indict the officers. The original acquittal resulted in the worst riots in modern American history, and polls show a large majority of the nation believed the jury in Simi Valley, Calif., was mistaken.

But former federal prosecutors reject the notion that Lourdes Baird, the US attorney in Los Angeles, sought the indictment for purely political reasons.

"I would be very surprised if the decision was made on anything other than professional grounds," says William Gardner, former criminal section chief of the Justice Department's civil rights division. "It's not at all unusual to bring a successive federal prosecution" after a state case has failed, he adds.

Mr. Gardner and other legal experts cite several factors that may lead federal prosecutors to believe they have a decent shot at winning the case - despite the higher burden of proof.

First, many people felt that the jury in Simi Valley was not representative of the community at large, since it had 10 whites, one Asian, one Hispanic, and no black members. The jury pool in the federal case will be drawn from seven southern California counties, thus increasing the chances that more minorities will land on the panel.

"I think they're looking for a different jury to present the same case," says Jesse Choper, a law professor at the University of California, Berkeley. "They want another bite at the apple." A new, stronger case

But most trial lawyers doubt the US would place all its hopes on having a more sympathetic jury to hear the civil rights case. Laurie Levenson, who was an assistant US attorney in Los Angeles from 1981 to 1989, believes that her former colleagues have built a stronger case against Messrs. Briseno, Powell, Wind, and Koon.

In the state case, many of the prosecution witnesses were police officers who, understandably, had divided loyalties in testifying against the defendants. In the federal case, Ms. Levenson says that prosecutors are likely to call more civilian witnesses to testify about the beating - possibly even Rodney King himself.

Also, Levenson says, US attorneys may want to probe more deeply into the possible motives behind the police beating of King. They may show either past evidence of excessive behavior by some of the officers, or show that the attack may have been racially motivated.

Finally, Levenson says federal prosecutors will try hard to avoid the mistakes of their predecessors.

"The [US attorneys'] biggest advantage is that they know they have a tough case," says Ms. Levenson, now a professor at Loyola Law School in Los Angeles. "The state had a tough case, but I don't think they appreciated it because of the media portrayal of the videotape [showing the officers beating King]. The federal prosecutors know they have to be aggressive every step of the way."

Even if federal prosecutors do secure a conviction, however, the L.A. police officers may already have some grounds for an appeal. One of these is the issue of whether or not they can receive a fair trial in the politically-charged atmosphere of Los Angeles.

"It raises the appearance of unfairness," says Professor Arenella, a former criminal defense attorney. "How can jurors vote to acquit if it will trigger a second conflagration? It's a tremendous psychological burden on the jurors."

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