NEWS ANALYSIS : Unity Erodes as Officers Point Fingers

Nearly a year before the opening of the Rodney G. King beating trial, the first judge on the case offered a prophetic observation after watching some “finger-pointing” among the defense lawyers.

He predicted that the four Los Angeles police officers accused of assaulting the black motorist, if tried together, could end up attacking each other, all to the benefit of the prosecution.

“There is no defense team here,” Los Angeles Superior Court Judge Bernard J. Kamins said last May. “Each set of attorneys is for their client and if the effect is a shark biting another shark or a fish biting another fish, that cannot be prevented.”

In fact, the backbiting began on the trial’s first day when Officer Theodore J. Briseno’s attorney said in a startling opening statement that his client believed that the other officers were “out of control.”

Since then, and at numerous points in the high-profile trial, Briseno and his attorney, John Barnett, have accused the co-defendants of unwarranted brutality. And, for the most part, the prosecutors have enjoyed the show, watching the warring defense attorneys sully each other’s clients.

Veteran trial watchers say the King case has provided a textbook illustration of the dangers and benefits, depending on your perspective, of putting more than one defendant on trial at the same time.

A case involving multiple defendants requires strategic choices by the defense not encountered when one defendant is on trial. Frequently, according to legal experts, such clients must choose between trying to establish their innocence by blaming their co-defendants or abandoning what might be their best defense for the sake of unity and to avoid a counterattack.

“My experience in multi-defendant cases is you have to stick together or you hang separately,” said Barry Tarlow, a nationally prominent white-collar defense lawyer in Los Angeles. “You cannot try a case in which people are lobbing grenades at one another.”

Los Angeles attorney Johnnie L. Cochran Jr., who has been a prosecutor and a defense lawyer, agreed.

“A multiple defendant case is always fraught with problems and in a criminal case it generally inures to the benefit of the prosecution,” he said. “The defense’s worst fears have been realized in this (the King) case.”

In some situations, judges will rule that defendants be tried separately, known in legal jargon as a severance. The general rule, said Tarlow, is that if there is an inherent conflict between defendants, their cases should be severed. An example is a case where two men are arrested for possessing stolen jewelry, with each contending that the other is the thief.

“If you tried them together, it would be a zoo,” Tarlow said, adding that the defendants would essentially be doing the work of the prosecution. “King is the classic case where there should have been a severance. You have two prosecutors in the case”--the government and Briseno’s lawyer.

In practice, however, it usually is difficult for defendants to have their cases severed, as evidenced by Kamins’ refusal to grant separate trials for Briseno and Sgt. Stacey C. Koon, despite the judge’s acknowledgment of conflicts among the officers.

Judges are reluctant to grant severances because it will mean that there will have to be two or more trials, thus consuming more court time and tax dollars.

“In an ideal world with unlimited resources, all defendants would be tried separately,” said New York University law professor Burt Neuborne. “We’re trapped by cost into a kind of wholesale justice rather than retail justice.”

Experts interviewed by The Times contend that the officers in the King case are damaged by being tried together.

UCLA law professor Peter Arenella said Briseno’s stance clearly hurt a key element of the defense raised by the other three officers--that their actions were consistent with their police training on subduing a suspect resisting arrest.

“The persuasiveness of such a defense strategy is certainly weakened when it cannot be presented with a united front,” Arenella said.

Practically speaking, only Briseno could effectively make the argument that he was trying to help, not hurt, King. The 81-second videotape of King’s beating shows him kicking King only once toward the end of the incident, contrasted with Officer Laurence M. Powell, who is seen delivering numerous kicks and blows with a baton.

One legal expert speculated that Briseno was indicted for the purpose of forcing him to turn on his co-defendants.

“He was indicted, I believe, because it would force him to talk as a matter of self-preservation,” said Neuborne, the former legal director of the American Civil Liberties Union.

If Briseno had not been indicted, Neuborne said, “he would have remained silent and almost certainly taken the 5th Amendment” if called to testify.

Neuborne, who is a commentator on the case for the New York-based Courtroom Television Network, said prosecutors could have made a deal with Briseno, granted him immunity and called him as a hostile witness. But the professor said such an arrangement would have made him almost worthless because the defense could have suggested that he was lying in order to cut a deal and save his hide.

The sharpest clash among the King defendants came this month when testimony by a minor witness prompted a verbal brawl between two defense attorneys, with both their clients taking hits in the process.

It started when former Officer Timothy E. Wind’s lawyer, Paul DePasquale, tried to introduce a police training video in an attempt to show that the officers had acted in conformance with department standards.

But Barnett--siding with Deputy Dist. Atty. Alan Yochelson--successfully objected to introducing the tape. Lawyers for the other defendants clearly were aggravated by Barnett’s move. Wind’s lawyer called Los Angeles Police Officer Jerry L. Mulford to testify on police training procedures and to comment on the small portion of the tape that the judge agreed to admit.

After Wind’s lawyer finished, Powell’s lawyer, Michael P. Stone, asked a question obviously designed to damage Briseno. He asked Mulford, somewhat rhetorically, whether stomping on a suspect’s neck is a dangerous action.

Mulford said it was. “It’s something we avoid at all costs because it can cause serious bodily injury.”

Then Briseno’s lawyer came to the lectern and upped the ante. He reminded the jury of testimony that Powell had sent an allegedly racist message on his police computer shortly before King was apprehended, that he had laughed after the beating, that he had taunted King at the hospital and had bragged about the amount of force the officers used.

“Do you teach recruits to giggle after beating someone?” Barnett asked. “No,” Mulford responded.

“Do you teach recruits it’s OK to beat someone of a different race?” Barnett asked. Again, the witness said no.

Barnett then asked several more similarly truculent questions, each casting aspersions on the other defendants.

“Stone opened the door. Barnett walked through and the prosecutor keeps smiling,” said attorney Cochran.

Ruth Jones, a former New York prosecutor and legal director of the National Organization for Women, said the prosecution has used good sense in not stealing the show with equally acerbic questions.

After Briseno’s lawyer fired off those questions, she said, their impact just “kind of hung in the air.”