Appeal Filed Over Officer’s Taped Testimony : King case: Defense asks federal appeals court to prohibit prosecution’s use of Theodore Briseno’s account from state case, saying it would deny the officers a fair trial.

Federal prosecutors in the Rodney G. King civil rights trial are trying to use state court testimony by one of the defendants to drive a wedge between the police officers and to force Officer Theodore J. Briseno to take the witness stand against his will, a lawyer retained by the officers said in an emergency appeal filed Saturday.

William J. Kopeny, a prominent Santa Ana attorney, argued that Briseno’s state court testimony should not be admitted because it would deny all four officers a fair trial and because it is offered at an inappropriate stage of the federal trial. All four defendants have already rested their cases.

“The apparent motive of the government in ever offering this evidence was to force Briseno to testify, in hopes of . . . causing the defendants to fight among themselves as they did, notoriously, in the state trial,” Kopeny said in his motion, filed Saturday with the U.S. 9th Circuit Court of Appeals.

Briseno’s state trial testimony is the core of the prosecution’s rebuttal case, scheduled to begin Monday. But government lawyers also are wrestling with other rapidly shifting issues as they prepare to present their final witnesses.

On Friday, defense attorneys received a copy of the government’s list of 14 potential rebuttal witnesses, including James J. Fyfe, a Temple University professor and nationally recognized expert on the use of police force. After quickly researching Fyfe’s background, lawyers for the officers said they could produce evidence that Fyfe had been exposed to Los Angeles Police Department internal affairs reports that would make it impossible for him to testify about some aspects of the case.

Because those statements were made under threat of firing, they cannot be used as evidence against the defendants. Moreover, witnesses familiar with the statements’ contents must be able to show that their testimony is not influenced by them.

Fyfe had a plane ticket to Los Angeles, but prosecutors abruptly pulled the plug on his appearance Saturday. They were unavailable for comment on their reasons.

Although Fyfe’s absence deprives the prosecution of potentially helpful testimony, their witness list still includes two of the LAPD’s highest-ranking officials, Deputy Chief Matthew Hunt and Assistant Chief Bernard Parks. The key to their rebuttal case, however, is the videotape of Briseno’s state trial testimony.

Briseno testified against his co-defendants in that case but has joined with them in a common defense this time. Briseno exercised his constitutional right not to testify in the federal trial.

Deprived of the chance to question Briseno, federal prosecutors would like to play an edited version of his state court testimony when trial resumes Monday. Defense attorneys are waging a spirited objection to that move, and Kopeny’s brief asks the appellate judges to halt the trial until they consider the defense position.

Legal analysts agree that Kopeny’s motion raises interesting legal questions, but they nevertheless consider it a long shot. Appeals of this sort are very rarely granted, especially in a high-profile trial with a sequestered jury.

U.S. District Judge John G. Davies ruled last week that much of Briseno’s videotaped state trial testimony is admissible as part of the prosecution’s rebuttal case. The appellate judges would need to find that Davies committed a “clear error” to overrule his decision.

Kopeny circulated copies of his brief to defense lawyers and prosecutors Saturday afternoon. The U.S. attorney’s office in Los Angeles did not immediately file a response, but prosecutors there could present one early Monday.

A research lawyer from the 9th Circuit was reviewing the motion, and a three-judge panel could take it up Monday morning if the judges believe that it presents sufficient grounds for them to intervene.

In addition to the legal reasoning in his 45-page brief, Kopeny appealed to the judges’ respect for the judicial system: “The integrity of the federal court is, to some extent, at stake in this trial,” Kopeny wrote. “The government should not be permitted, or be seen to be permitted, to engage in an unfair, last-minute tactic as a means of obtaining a conviction at any cost.”

Briseno joined fellow defendants Laurence M. Powell and Timothy E. Wind in electing not to testify in the federal trial. But prosecutors argue that they should be allowed to introduce an edited videotape of Briseno’s state testimony to rebut the federal testimony by Sgt. Stacey C. Koon, the fourth defendant.

In three days on the witness stand, Koon vigorously defended the force used against King. He said King had been resisting throughout, and added that he never saw Powell hit King in the face or head. In state court, however, Briseno testified that King did not pose a threat during much of the beating and said he thought he saw Powell deliver several blows to King’s head or face.

Assistant U.S. Atty. Steven D. Clymer argued in court last week that Briseno’s state court testimony should be played for the jury because it contradicts Koon on “eight or nine critical points.”

Even if the videotape is played, both sides already have agreed that some of it will be edited out, including Briseno’s famous description of his fellow officers as “out of control.”

That comment cannot be introduced because evidence rules prohibit a witness from testifying about another person’s state of mind.

Prosecutors do hope, however, to include Briseno’s explanation for his failure to report the use of force against King. Briseno testified that he had returned to the police station intending to report the incident to the watch commander but that he saw a computer message from Koon and concluded that Koon already had reported it.

Prosecutors would like to play that statement and then bring on witnesses to say Briseno was lying.

The trouble with that tactic, Kopeny said in his motion, is that Briseno did not present any evidence in the federal trial that can be rebutted by his state court testimony. Briseno’s entire defense case in the federal trial consisted of admitting into evidence one of the boots he was wearing on the night of the incident.

In addition, Kopeny said that Briseno’s state trial testimony may not accurately reflect his current view of the incident. During the state trial, Briseno did not have access to enhanced versions of the videotape of the beating, and Harland W. Braun, Briseno’s attorney, told the court that Briseno’s impressions of the incident are different now that he has had a chance to see the enhanced tapes.

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