Convicted Officers Are Likely to Get at Least 3 Years

The two police officers convicted in the Rodney G. King civil rights trial are likely to face a minimum of three years in federal prison under U.S. sentencing guidelines but probably will remain free for at least another year pending appeals.

U.S. District Judge John G. Davies, who set sentencing of Sgt. Stacey C. Koon and Officer Laurence M. Powell for Aug. 4, will be bound by federal sentencing guidelines that limit the discretion of judges in imposing sentences for certain crimes.

Under the guidelines, the judge is required to calculate the sentence based on criteria set by the Federal Sentencing Commission. For Koon and Powell, the base sentence for the judge to begin his consideration is 37 months to 46 months in federal prison.

Under various “enhancements” possible under the guidelines, the sentence for the officers’ offenses could go as high as the 10 years and $250,000 fine allowed by the law. Or it could go down.

Davies could depart from the guidelines and reduce the sentence if he states specific reasons for doing so. Michael P. Stone, the lawyer for Powell, predicted that his client would be sentenced to no more than 18 months to three years in prison.

“I think some of the most interesting time is to come . . . the sentencing,” said Charles Weisselberg, clinical professor at the USC Law Center. “There will be cries for heavy sentences to send a message to the community that the judge, under the guidelines, will be required to ignore and cries for a lower sentence . . . and the judge will have to ignore them too.”

Before pronouncing sentence, Davies first must assign each conviction a level of seriousness, rated from one to 43. He adjusts the ranking upward or downward depending on the role each defendant played in the crime and whether he accepted responsibility for his actions, Weisselberg said.

Although the officers’ lack of criminal histories will help them, “probation or community service will be out of the question,” Weisselberg said.

The sentences could be enhanced to 57 months to 71 months if the judge makes a legal finding that King suffered a serious bodily injury, said Laurie Levenson, a Loyola University law professor and former federal prosecutor.

If Davies also finds the officers used dangerous weapons, such as batons, in the King beating, the guidelines allow the judge to raise the sentence to 87 months to 108 months, Levenson said.

Koon, she said, could get an even higher sentence--the maximum 120 months--if the judge finds that he lied on the witness stand. Powell did not testify.

USC’s Weisselberg said a judge can make a downward adjustment if there is a factor in the case “that is somehow mitigating that was not taken into account by the Sentencing Commission in drafting the guidelines.”

However, he said “the sentencing manual is pretty comprehensive. It would have to be something pretty unusual. I can’t think of anything offhand that would result in a downward departure.”

After sentencing, the officers have 10 days to file a notice of intent to appeal. Legal experts predict that the defense may challenge the convictions on Davies’ admission of portions of a videotape of Officer Theodore J. Briseno testifying at last year’s state trial.

In the videotape, Briseno said that King did not resist arrest and that Powell appeared to strike King in the head several times with a baton. Attorneys for the officers sought unsuccessfully to keep the tape out of the trial. Briseno was found not guilty Saturday.

“What was damaging,” said Ira Salzman, Koon’s attorney, “was my inability to cross-examine a videotape.”

Experts said the defense could argue on appeal that Briseno’s testimony violated the officers’ privilege against self-incrimination because Briseno had access to inadmissible statements that Koon and Powell made to internal police investigators.

Bolstering such an appeal would be a previous ruling by the District of Columbia Circuit Court of Appeals involving former White House aide Oliver North’s prosecution in the Iran-Contra affair. In that ruling, the court said the government was barred from using such “immunized” testimony even indirectly and should be held accountable when, through no fault of its own, its witnesses have had access to that testimony.

The defense also could argue that the use of the videotape in rebuttal was improper because Briseno did not testify during the trial.

“I think there are certainly good grounds for appeal,” said Myrna Raeder, professor of law at Southwestern University School of Law in Los Angeles.

But some experts are skeptical that such an appeal would succeed before the U.S. 9th Circuit Court of Appeals because the defense would have to show that the admission of the tape denied the defendants a right to a fair trial or produced an erroneous verdict.

“It is a hard legal question and it is hard to speculate about what the 9th Circuit would do in the future,” said Erwin Chemerinsky, a USC law professor. Nevertheless, he added: “I still would be surprised if it were the basis for a reversal.”

An appeal can be based only on harmful legal errors made by a judge, such as improperly admitting certain evidence or giving the jury instructions that did not represent the law.

But, Chemerinsky said, “At this stage, I feel comfortable saying there is not any apparent strong grounds for appeal for the defense. . . . This was as thorough and as fair a trial overall that could have been provided.”

Hugh Manes, a Los Angeles attorney who handles police misconduct litigation, said he “could not conceive” that the convictions would be reversed on appeal. “The objection that many of us had to the trial,” he said, “was that the rulings were more defense-oriented than they were for the prosecution.”

Prior to the announcement of the verdicts, Salzman also described Davies’ handling of the case in laudatory terms.

“I admire the judge very much,” the defense attorney for Koon said. “I believe there are few individuals who could give such a fair trial under such circumstances. The good news is we’re getting a fair trial. The bad news is there’s not much left over (as grounds for appeal) in the event of an adverse verdict.”

But defense attorneys might still argue that a fair trial was impossible because of jurors’ fears of more riots if all the officers were acquitted, although the defense had not formally asked to have the trial moved out of Los Angeles.

Salzman said there was “not one juror” unaware of the fallout from the verdicts last year.