The finest of all human achievements - and the most difficult- is merely being reasonable.
THE prohibition of television cameras in the courtroom has made the federal civil rights trial of four Los Angeles police officers the most-followed legal case in the country instead of the most watched. More's the pity, some attorneys say.
Final arguments were scheduled to be made yesterday, after which the fate of the officers charged in the videotaped beating of black motorist Rodney King will rest with the jury. But if the public could have watched a late-afternoon debate involving the judge, prosecutors, and defense attorneys on Wednesday, it would have a better grasp of how the trial's outcome could turn on a word, a comma, or a phrase.
Americans might also better understand why United States District Judge John Davies remarked in an uncharacteristically blunt moment: "I don't have any idea what's going to happen [with the verdict]. I don't think any of us do."
Wednesday was the day both sides hammered out the wording of jury instructions. "The instructions are all-important because they explain to jurors how to apply the law to the weeks of evidence they have just heard," said Dan Caplis, an attorney observing the trial.
A major debate has raged over whether flawed jury instructions may have been responsible for the acquittal of the L.A. police officers last year in a state trial held in Simi Valley, Calif. "In [the] Simi Valley [trial], the instructions from the judge didn't define what excessive force meant," says Peter Arenella, a law professor at the University of California at Los Angeles.
To avoid similar confusion, both sides here haggled over the wording of the approximately 50-page jury instructions for the better part of a day.
The line-by-line editing was both painstaking and exhaustive - so much so that most reporters and other trial observers took the day off, preparing for far more dynamic closing arguments.
JUDGE Davies drafted the jury instructions after taking suggested wordings from both prosecutors and defense attorneys. Fixes included everything from grammar (changing "his" to "theirs") to omissions (adding the word "official" to modify "custody") to more substantive debates over what, for instance, constitutes a "split-second decision."
Prosecutors argued that using such words as "tense, "uncertain," and "rapidly evolving circumstances" favors the defense's description of events. Thus, prosecutors argued, they should not be used when enumerating the conditions under which the jury must decide whether the officers used "unreasonable force."
The judge and lead prosecutor Barry Kowalski also hammered out wording to instruct jurors they must look at the incident through the eyes of a reasonable police officer at the scene at the time - not with the benefit of "20-20 hindsight." Davies thought the jury wouldn't understand "20-20 hindsight" and changed it to "perfect perspective." By now it was nearing five o'clock - customary quitting time - and the court was nearly empty when a crucial exchange occurred.
"I would like the jury to be instructed that `reasonable' as defined by LAPD [Los Angeles Police Department] policy is not the same as `reasonable' under the Constitution," said prosecutor Steven Clymer. Two LAPD use-of-force experts testified during the trial that the officers' beating of Mr. King fell within department policy, but Mr. Clymer objected: "These are not experts in constitutional law. The jury should know that the final decision on what is `reasonable' is up to [the jury], not to LAPD polic y."
"That's very persuasive," Davies replied. "But I'm not going to do it."
"I think this is critical and goes to the heart of the case," Clymer countered.
But the judge held firm, although he did concede, "I can see grounds for fear [those instructions] might allow the jury to disallow LAPD policy as fact.... Its fraught with problems."
That small victory for the defense, says Prof. Robert Pugsley of the Southwestern University Law School in L.A., may not have been "as sexy for the media" as defendant Stacey Koon's testimony during the trial, "but in terms of outcome it's just as crucial."