THE two United States Justice Department lawyers who are trying a civil rights case against four Los Angeles police officers are called prosecutors. In a sense, though, Barry Kowalski and Steven Clymer probably regard themselves as defense lawyers - defending America's system of justice.
For many people, the US justice system itself is in the dock in Los Angeles along with the white officers who beat black motorist Rodney King in March 1991. The acquittal of the officers last April by a Simi Valley, Calif., jury that included no black members shocked and infuriated many Americans, including President Bush, who had seen television broadcasts of a videotape that appeared to show the officers baton-whipping Mr. King as he writhed on the ground.
The verdict ignited three days of rioting, burning, and looting in South Central Los Angeles. Perhaps even worse in the long term, from Washington's standpoint, it created a crisis of public confidence in American justice. Many whites as well as blacks concluded that the US criminal-justice system is still stacked against African-Americans.
In the atmosphere of seething emotions that followed the first King trial and the riots, it would have been almost impossible for the Justice Department not to bring new charges against the police officers, many experts say. "The decision to indict the officers again was a political decision, in a broad sense," says Robert Weisberg, a professor of criminal law at Stanford Law School in Palo Alto, Calif. "You can't separate politics and law."
Yet the issues of justice in the case are complex and cross-grained. Some people think that the second trial of the officers itself is an injustice.
"Though they keep their voices down, I've talked to lots of people who can't understand why these policemen are being tried again after a jury found them innocent," says Prof. Paul Marcus, who teaches criminal law at Marshall-Wythe School of Law, the College of William & Mary, in Williamsburg, Va.
The Fifth Amendment to the US Constitution says that no person "shall ... be subject for the same offense to be twice put in jeopardy of life or limb." Yet the defendants - Sgt. Stacey Koon, officers Laurence Powell and Theodore Briseno, and former officer Timothy Wind - are in effect being tried a second time for the same incident.
But the Supreme Court has long since held that, under the "independent sovereigns" doctrine, accused criminals are not subject to double jeopardy when they are tried under separate laws created by different governmental jurisdictions (either the laws of two different states or, as in this case, a state law and a federal law) - even if the charges are based on identical facts.
The independent-sovereigns doctrine is consistent with the US federal system, but it has implications that are worrisome to some legal thinkers.
"In the early days of the republic, when the federal government wasn't very active in criminal prosecution, it didn't bother people that defendants who were tried by a state for robbery were later tried by the federal government for piracy on the same facts," says Dirk Roggeveen, senior litigation attorney at the Institute for Justice, a public-interest law firm in Washington. Mr. Roggeveen prosecuted police-brutality cases for the Justice Department from 1986 to 1992.
"But the [independent-sovereigns] doctrine is potentially more troubling today, when in a number of areas the federal government has criminal statutes that are almost identical to state laws," Roggeveen says. "Now there's talk of federal domestic-violence laws that probably will track some state laws almost word for word." Dual state and federal prosecutions under such circumstances look more and more like double jeopardy, Roggeveen observes.
Even so, Roggeveen and other experts say they are not troubled by follow-up trials like the second King case when the federal government seeks to enforce US civil rights laws. The three defendants who struck King are charged with violating his Fourth Amendment right "against unreasonable ... seizures," while Sergeant Koon, the supervising officer, is charged with violating King's Fifth Amendment right to "due process of law."
The state and federal interests are distinct in civil rights cases, say these experts. "While the State of California has a strong interest in punishing police officers who allegedly beat up citizens," Professor Marcus says, "the federal government has the preeminent role in protecting rights guaranteed under the Constitution." The federal government should not in effect delegate to the states the responsibility to enforce the Bill of Rights, legal thinkers say.
Nonetheless, the Justice Department does not undertake dual prosecutions lightly, explains Roggeveen, the former civil rights prosecutor. He says that his former Justice Department colleagues, who by disposition were concerned about civil rights, were not unmindful of the rights of police officers accused of brutality.
Under the department's "Petit policy," to undertake a follow-up prosecution Justice lawyers must persuade top officials that a federal interest was not vindicated by the outcome of the state trial and that US lawyers have a likelihood of success in the case.
While US prosecutors Kowalski and Clymer believe that they can win the case, they also know it won't be easy. The state trial showed that the explicit videotape alone isn't enough. As they did in that trial, defense lawyers will dissect the tape frame by frame, trying to persuade the jurors that the defendants acted reasonably, given their perceptions of King's conduct.
The federal prosecutors have even a heavier burden of proof than the state prosecutors carried. They must prove not only that the officers used excessive force against King, but also that they intended to violate his rights. So the prosecutors will have to present evidence on the officers' state of mind - showing, for instance, that they knew that the force they used to subdue King was greater than that called for by the situation or by their training; or that they wished to punish King or had some other
improper motive in beating him.
Aware of the obstacles they face, Roggeveen says, the prosecutors have prepared exhaustively. The case that the Justice Department lawyers are presenting to the jury of nine whites, two blacks, and one Hispanic is, he says, "as strong as it's possible to make a case."
Whatever the verdict, it remains to be seen whether the government attorneys will have helped acquit the justice system of some of the charges of bias and insensitivity that, rightly or wrongly, were levied against it after the first King trial.