U.S. Loses Bid to Question Koon on Manuscript

Federal prosecutors chipped away at the testimony of Sgt. Stacey C. Koon on Thursday, but they lost a series of legal skirmishes that will keep jurors in the Rodney G. King civil rights trial from hearing evidence of Koon’s past misconduct and about a manuscript in which he referred to King by a racially charged term.

U.S. District Judge John G. Davies’ decision to exclude an excerpt from the manuscript was a particularly sharp blow to prosecutors. In that manuscript, Koon described a confrontation between King and a white, female California Highway Patrol officer as a “Mandingo sexual encounter.”

Prosecutors argued unsuccessfully that Koon’s use of the word Mandingo , a term sometimes used to denigrate black men, demonstrated his state of mind during the March 3, 1991, incident. Davies agreed that the term was highly emotional but said it could not be admitted as evidence.

Despite the setbacks, Assistant U.S. Atty. Steven D. Clymer elicited several concessions from Koon in an effort to undermine the sergeant’s earlier testimony that he believed King was under the influence of PCP and posed a threat to the four officers accused of violating his civil rights.

The sergeant acknowledged under cross-examination, for instance, that King was not treated in the manner outlined by department guidelines for felony PCP suspects.

Los Angeles police guidelines state that officers should move cautiously and not agitate suspects believed to be under the influence of PCP. If possible, the policy says, officers should “wait the situation out.”

Koon previously had testified that he gave King about five minutes to comply before directing officers to handcuff him with a technique known as the “swarm.” But Clymer outlined the times of various radio calls, using them to cast doubt on Koon’s account.

According to records of those calls, it appeared that Koon had allowed King about one minute and 45 seconds to obey commands that he lay on the pavement and submit to arrest.

“Mr. Koon, you are exaggerating, are you not, the amount of time that elapsed before you ordered officers to swarm Rodney King?” Clymer asked.

“No, Mr. Clymer, I am telling you my recollection,” Koon responded icily.

Koon also said that he never warned other officers about his impression that King was under the influence of PCP, even when he sent four of them to grapple with King and try to handcuff him.

Koon, who testified on two days earlier this week, spent his final day on the witness stand waged in a battle of wills with Clymer--the two men trading jabs in front of spellbound jurors. Although Koon weathered the exchange without yielding on any key points, Clymer closed his presentation by playing the videotaped beating of King for Koon and jurors and inviting them to compare their perceptions with the sergeant’s.

Speaking softly and returning to the tape repeatedly, Clymer’s questions drove home his point that Koon misrepresented the incident.

Displaying one segment in which King is shown on one knee, raising his right arm to block a blow, Clymer asked: “It was your perception that evening that what you saw by Mr. King was a martial arts tactic designed to take an officer’s baton and use it against him?”

“That is my training,” Koon answered.

“I take it that what you saw that night you did not interpret as a drunken man trying to protect himself,” Clymer said.

“No, sir, I did not,” Koon responded.

Koon is the lead defendant in the federal trial, and he is charged along with co-defendants Laurence M. Powell, Timothy E. Wind and Theodore J. Briseno. Powell, Wind and Briseno are accused of kicking, stomping and striking King with batons in the process depriving him of the right to be safe from the intentional use of unreasonable force.

Koon, the senior officer at the scene, did not strike King during the incident, but he was indicted for allegedly allowing officers under his supervision to administer an unreasonable beating. All four men face up to 10 years in prison and fines of up to $250,000 each.

After the session, Koon said he could not judge how well it had gone.

“All I wanted to do was answer the questions at a professional level,” he said. “Sitting up there, I have absolutely no take on how it went, but I was much more nervous in Simi Valley. I was much more confident” this time.

Although the theatrical highlights of the day occurred during the long cross-examination of Koon, the trial’s most significant developments unfolded outside the presence of the jury. Each of those developments was resolved in favor of the police officers.

Prosecutors wanted to grill Koon about two topics from a manuscript of his 1992 book, “Presumed Guilty.” One passage of that book describes an incident in which Koon and another officer shot a black suspect and then joked about it. That incident did not involve King, and most observers had predicted that Davies would not allow it to be admitted as evidence.

Davies quickly dispensed of that request, ruling that it was not relevant to the case.

But he deliberated at length over a passage in the manuscript that did involve the King incident. Koon wrote in that manuscript that King shook his buttocks at California Highway Patrol Officer Melanie Singer. Koon said Singer appeared frightened by the gesture.

“The fear was of a Mandingo sexual encounter,” Koon said in the manuscript, although the sentence was deleted from the published book. Mandingo is a term that has been used by some Westerners to denigrate black male slaves. Clymer called it a “sexually explicit and racially explicit description of what (Koon) thought was occurring.”

Although prosecutors are not required to prove that the officers who beat King did so out of racial malice, they are required to show that the defendants acted willfully. As part of that, they may present evidence of the defendants’ motives, and Clymer said “one possible motive would be displeasure over a gesture that a black man made to a white woman.”

Koon has testified that his only motive was to subdue King so that he could be taken into custody, but Clymer said the manuscript undermines that position.

“This goes to the very heart of this witness’ credibility,” Clymer said.

Clymer argued that he should be allowed to question Koon about the passage, but defense lawyers, fearful of the racial implications of the remark, vigorously fought to keep it from being read in court.

Ira Salzman, who represents Koon, said the manuscript was written months after the incident, and that Koon had “engaged in a literary license, for wont of a better term.”

Attorneys for the other officers were more perturbed, saying that the introduction of the manuscript would cause jurors to blame their clients even though they had nothing to do with Koon’s book.

The debate over the term turned giddy at times. Davies and various lawyers mused about the historical use of the term Mandingo. Barry F. Kowalksi, one of two lead prosecutors in the case, said he recalled a book by that title from his teen-age years, and defense lawyers went out during the lunch break to secure an Oxford English Dictionary definition of the word.

Paul R. DePasquale, the lawyer for Wind, presented Davies with a copy of the dictionary page and proudly announced that the term dated to the 14th Century. Although Davies thanked him for his research, he said it was not relevant.

In the end, however, Davies sided with the defendants.

“In my judgment, to admit this evidence would tamper with the effectiveness or integrity of the fact-finding process in this case,” Davies said. “It could create unfair prejudice that might result in an improper or irrational verdict based upon an instinct to punish.”

After losing that battle, prosecutors resumed their cross-examination, but quickly were pulled up short again.

Clymer sought to question Koon about a five-day suspension he received in 1986 for lying to a superior officer and misrepresenting a use of force. Davies had previously ruled that that evidence was not admissible during the prosecution case, but Clymer argued that it should be allowed for purposes of cross-examining Koon, since Koon’s credibility was at issue on the witness stand.

Salzman again angrily objected, and Davies again ruled in favor of the defense.

“I believe, again, that there is substantial potential for undue prejudice,” Davies said.

Salzman later applauded that ruling. He sharply criticized prosecutors for trying to introduce it, and he and Koon both said they believe it reflects the prosecution’s dwindling prospects of winning a conviction.

“Desperate men do desperate things,” Koon said. “That, from my perspective, is what happened.”