When federal prosecutors rested their case earlier this month against four police officers charged with violating Rodney G. King’s civil rights, one of the defense lawyers admitted to a mixture of relief and anxiety.
“We’ve survived the prosecution,” said Harland W. Braun, who represents Officer Theodore J. Briseno in the federal case. “The hard part is going to be surviving the defense.”
As the defense case has unfolded during the past two weeks, Braun repeatedly has returned to that refrain, and both legal analysts and history suggest that he has good reason for concern.
During last year’s state trial, opening statements had not even concluded before Officer Laurence M. Powell’s lawyer criticized Briseno, and Briseno’s attorney, John Barnett, responded by breaking ranks with the other defendants. The fracas threatened to undermine the cases of Briseno’s co-defendants, leaving prosecutors crowing and Briseno ostracized.
The officers survived the infighting and went on to win that trial, but their lawyers clashed again after the officers were indicted by the federal government: This time, it was two attorneys new to the federal case who launched the assault with an unsuccessful attempt to have Michael P. Stone, who represents Powell, removed from the case for an alleged conflict of interest.
“It has been tricky at times,” said Paul R. DePasquale, the lawyer for Timothy E. Wind. “There’s no one party line, no one calling the shots. There’s just four defendants fighting for their lives, and each of them has a slightly different story to tell.”
But with the federal trial of the officers drawing to a close, defense lawyers have so far managed to maintain a common front, overcoming occasional flare-ups and defying early predictions of another bitter split. That has deprived federal prosecutors of a potent weapon that their state counterparts tried to exploit, and it has significantly affected almost every aspect of the federal trial--figuring in strategy decisions, for instance, about which witnesses the defense has called and the questions that those witnesses have been asked.
“Early on in this case, Braun was saying that they would have a unified defense, and I was very skeptical,” said Erwin Chemerinsky, a law professor at USC. “But it has been, and it’s obvious that there has been a dramatic effect.”
Suspicions still run deep--the calm over the defense camp is less an alliance than a truce--but even after five weeks of sometimes damaging testimony, no defendant and no defense lawyer has attacked any other. Even the animosity between the officers seems to have abated: Once shunned, Briseno sometimes shares lunch with his colleagues and chats amiably with them in court.
“It’s a fragile alliance, and it’s witness by witness,” said Laurie Levenson, a Loyola Law School professor and former federal prosecutor. “But they’ve held it together fairly well. . . . The question is: Will it hold up?”
Powell, Wind and Briseno are charged with kicking, stomping and striking King with batons that night, thereby depriving him of his right to be safe from the intentional use of unreasonable force. The fourth defendant, Sgt. Stacey C. Koon, was the senior officer at the scene, and he is accused of willfully allowing officers under his supervision to administer an unreasonable beating.
If convicted, each defendant could face 10 years in prison.
They were tried and found not guilty on all but one count in state court--the jury failed to reach a verdict on one charge against Powell--but not before Briseno broke ranks. Briseno’s testimony rocked the Simi Valley trial as he attacked his fellow officers for the way they handled the March 3, 1991, incident.
“It looked like they were just hitting him everywhere,” Briseno said during the state trial. “I thought the whole thing was out of control. It was wrong.”
By the end of the trial, relations were deeply strained, defense lawyers were objecting to each other’s questions, and none of the other officers were speaking to Briseno.
“He was the only witness to say that I was out of control,” Powell said in a recent interview. “That just was not true.”
The sniping came to dominate the state trial. “It was obvious to the jury that there was war between the defense counsel,” said Stone, who has represented Powell all along. “That created problems for us.”
Barnett said the differences were handled professionally, but agreed that the split left nerves frayed. “There was a certain amount of tension,” he said.
Barnett bowed out of the federal case, and Braun stepped in, bringing with him a new tactic. Braun had previously surprised pundits when he engineered a truce during the celebrated “Twilight Zone” case. Five defendants in that case were acquitted of manslaughter charges in connection with a helicopter crash on a movie set.
Braun was convinced that a similar arrangement would bolster the prospects of all four police officers in this case. Shortly after the officers were indicted, Braun took Briseno’s case to the public, and Briseno made it clear in interviews that while he perceived the incident differently than his fellow officers did, he did not believe that any of them had violated King’s civil rights.
“Everyone was pretty wary at first,” Braun said. “There were so many bent feelings from Simi Valley. But Ted (Briseno) has removed himself from being an irritant, which has diminished their need to go after him.”
The truce engineered by Braun is rooted in the officers’ common interests, but it has taken a patchwork of large and small gestures to forge unity in the face of the state trial--after last year’s conflict-of-interest dispute, for instance, Braun gave Stone a $60 cart as a token of his apology. Stone uses it to haul his documents into court every day.
Later, when Stone conducted a particularly successful cross-examination of a prosecution witness, Braun was lavish with his praise: “He’s great,” Braun said of Stone. “He’s my hero.”
But even a truce built on flattery and book carts can produce significant results.
Take the testimony of Sgt. Charles L. Duke, the defense’s chief expert on the use of force by police. Duke was called to the stand by Ira Salzman, Koon’s lawyer, and he spent days pointedly praising the actions of Wind, Powell and Koon. But when it came time to review the portion of the videotape that includes Briseno, Salzman carefully steered Duke away from expressing his views.
Duke previously has criticized Briseno, but Salzman was leery of soliciting that opinion, not wanting to antagonize Braun, who privately had threatened to attack Duke’s credibility if his testimony damaged Briseno in any way.
As it was, Duke barely mentioned Briseno’s name, and when it came time for Braun to interrogate the sergeant, Braun announced that he had no questions.
“Fear can be a powerful motivator,” Braun said later. “A great deal of our defense unity is based on fear of what the other guy might do.”
At Braun’s urging, Salzman also agreed not to call two police officer witnesses who might have helped Koon’s case at Briseno’s expense. “In considering my case preparation, although my duty to Stacey Koon has always been foremost, I also have made concessions to other defendants,” Salzman said.
The joint defense has not gone untested. Two witnesses--Paul Beauregard, a Los Angeles Unified School District officer, and Melanie Singer, a California Highway Patrol officer--were called by defense lawyers but delivered testimony that helped the prosecution. In both cases, defense lawyers were quick to criticize their colleagues for putting the witnesses on the stand.
It was Salzman who called Beauregard, but the officer withered under cross-examination. Under questioning by prosecutor Alan Tieger, Beauregard acknowledged that he, Powell and King himself had joked while King lay bleeding on the pavement, and he admitted that he had previously told a federal grand jury that he heard Powell laugh when he radioed for an ambulance to pick up King.
Stone called that testimony “not so good,” and Braun agreed. Since then, some of the lawyers have privately referred to major mistakes as “pulling a Beauregard.”
Salzman publicly defended Beauregard’s testimony, but sources say he privately blamed Stone for the decision to call him.
While Beauregard’s day on the stand marked the first setback for the officers during their half of the trial, it paled next to Singer’s appearance. Stone decided to call the CHP officer, and her testimony fleshed out the jury’s knowledge of the high-speed chase that started the incident, as well as King’s unusual behavior when he got out of his car in Lake View Terrace.
But Singer, a prosecution witness in Simi Valley, proceeded to deliver a wrenching account of the beating, crying as she told jurors that she would always remember Powell striking King repeatedly on the head and face with his baton. “I will never forget it until the day I die,” she testified.
Salzman and Braun expressed surprise at Stone’s handling of Singer. Salzman told reporters he could understand why “reasonable people” might be mystified by Singer’s appearance as a defense witness, and Braun questioned Stone’s sense of trial strategy.
Stone was visibly miffed by the sniping from his co-counsel, but he declined to respond.
While the truce between the lawyers has survived those rough spots, each of the defense attorneys keeps one wary eye on Braun, who has the advantage of presenting his case after all the others have rested. If he believed the defense was in trouble then, nothing would prevent him from calling his client to the stand and eliciting the same testimony that caused the furor in Simi Valley.
By then, the only recourse for the other defendants’ lawyers would be to try to discredit Briseno on the stand or in closing arguments.
“It absolutely makes me nervous knowing that Harland can do whatever he wants,” Salzman said. “If somebody goes another way, I’m exposed.”
Like the other lawyers, Braun’s only ethical obligation is to his client, and he says he reserves the right to make the decision most likely to result in Briseno’s acquittal--including putting Briseno on the stand.
“That’s not only something I would consider,” he said. “That would be my obligation to my client.”
Holding Braun back, however, is the knowledge that Briseno is unlikely to be convicted if the other defendants are acquitted. Briseno is the least implicated of the four defendants, and legal analysts agree that it would be extremely unlikely for Briseno to go to jail if the others go free.
Braun says he expects to stay put--not out of loyalty to the other defendants, but because it increases his own client’s chance of winning. And that, he said, is at the root of the truce.
“We don’t have friends, we don’t have enemies,” Braun said of both prosecutors and defense lawyers. “We have interests.”
For the Defense Here are the attorneys defending the four LAPD officers accused of violating Rodney G. King’s civil rights: Michael P. Stone, lawyer for Laurence M. Powell.
Paul R. DePasquale, lawyer for Timothy E. Wind.
Harland W. Braun, lawyer for Theodore J. Briseno.
Ira Salzman, lawyer for Stacey C. Koon.