Hearing Set on 'Discriminatory Prosecution' Claim in Denny Case : Courts: Judge will consider motion to dismiss charges against the three defendants. Some say the defense is trying to put the district attorney's office on trial.

TIMES STAFF WRITER

The witness list includes former Dist. Atty. Ira Reiner and Deputy Dist. Atty. Terry White, the prosecutor in the state trial of four officers accused of assaulting Rodney G. King. Attorney Stephen Yagman, who specializes in police abuse cases, and Michael Zinzun, a veteran campaigner against police abuse, also have been called to testify.

Defense attorneys want to use testimony from these and other witnesses to support their contention that charges against three men accused of assaulting trucker Reginald O. Denny should be dismissed because the district attorney's office charges African-American defendants with more serious offenses than it does whites arrested under similar circumstances.

A potentially volatile hearing on the defense allegation of discriminatory prosecution is scheduled to begin in Superior Court today. Sources close to the case say the defense strategy is clearly an attempt to put the district attorney's office on trial.

Prosecutors have filed 82 pages in opposition to the defense motion to dismiss charges, saying it should be denied without a hearing because "oral testimony is unnecessary and would be a circus."

Damian Monroe Williams and Antoine Eugene Miller, both 20, and Henry Keith Watson, 28, are charged with multiple felonies--including attempted murder, which carries a maximum sentence of life imprisonment--in the assault on Denny and 12 other people at the intersection of Florence and Normandie avenues, a flash point for last year's riots.

Defense attorneys maintain that the police officers involved in the King beating faced only assault charges with 10-year maximum sentences because the officers are white. King, these attorneys insist, was beaten badly enough for the officers to have been charged with attempted murder.

Attorneys for Williams, Watson and Miller are trying to compare the Denny case--which involves "the beating of innocent civilians"--to cases of police officers accused of committing acts of violence "in the course of arresting law-breaking suspects," prosecutors wrote in their opposition to the defense motion.

The case against these three defendants "involves real crimes, terrifying assaults and robberies of multiple victims, and the beating of one man nearly to death," prosecutors added.

Calling the allegation of discriminatory prosecution "concocted," they added that the "same life sentence charges would have been brought in any similar situation regardless of the race or occupations of the assailants."

Attorney James R. Gillen, who represents Miller, said Tuesday that the hearing "will highlight the failure by the district attorney's office to prosecute police officers for crimes they've committed. The district attorney is attempting to sweep this case under the carpet. The hearing would be an embarrassment to the district attorney's office."

A key argument in the prosecution's opposition to dismissing charges is a U.S. Supreme Court ruling that, in order to establish discriminatory prosecution, a defendant must prove that others "similarly situated" were not prosecuted for similar conduct.

"Police officers who use force in the performance of their duties are not similarly situated to these defendants in any way, shape or form, and the comparisons the defense wishes to attempt should not be permitted," prosecutors wrote.

Attorney Edi M. O. Faal, who represents Williams, took sharp issue with that argument Tuesday.

"People who use illegal violence against others are similarly situated, regardless of their status," he said. "If they are saying (that) if they are police officers they are not similarly situated, that is discriminatory in itself.

"We are limiting ourselves to situations where the district attorney acknowledges that the use of force was illegal. Once it's illegal, you have an individual who uses illegal force against another. It should not matter whether that person is a police officer or not."

Today's hearing will be the first court action in the case in seven weeks. Pretrial proceedings were interrupted in May when defense attorneys sought to remove Judge John W. Ouderkirk, arguing that he had a conflict of interest stemming from his engagement to Reiner's onetime executive assistant.

Orange County Superior Court Judge Theodore Millard denied that request, as did the 2nd District Court of Appeal when Gillen appealed.

The trial of the three defendants is scheduled to begin July 26, with jury selection set to start July 28.

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