King Case Climax Nears With Officers’ Sentencing : Courts: Judge has range of options for Powell and Koon. Most experts predict a middle course, of 4 to 6 years.

Once again, perhaps for the final time, Officer Laurence M. Powell and Sgt. Stacey C. Koon will appear this week in a federal courtroom, emerging from their relative obscurity of recent weeks to stand grimly before the judge and receive what most experts believe is inevitable: a federal prison sentence.

It will be a monumental day in the lives of those two Los Angeles police officers, who have fought state and then federal charges in their two-year effort to vindicate their actions during the Rodney G. King beating.

But it will be an equally climactic day for the city itself. No criminal case has ever captivated this city more completely or shook it more violently.

Although appeals could drag on for years, it is clear that on Wednesday, in the quiet dignity of U.S. District Judge John G. Davies’ courtroom, Los Angeles finally will turn the page on one of the most tumultuous chapters in its history.

On that morning, with supporters and detractors of the officers scrutinizing the system, Davies will be called upon to decide how much prison time, if any, the police officers should serve.

The defendants and their lawyers will argue three separate but related legal issues: First, that they deserve a new trial; failing that, that they should receive probation or very short prison sentences; and finally, if Davies elects to sentence them to prison, that they should be allowed to remain free on bail while they pursue their appeals.

Prosecutors take a very different view of all three subjects. In a series of legal briefs, they have asked Davies to deny the motions for a new trial, sentence Powell to at least seven years in prison and Koon to at least nine and then take both into custody immediately.

Prosecutors also want the judge to fine Koon and Powell $15,000 to $150,000 each and to order them to pay restitution to King, who has told the court that his medical bills come to about $189,000.

“The offense in this case was patently serious, involving a dangerous weapon, purposeful official misconduct and serious injuries to the victim,” Assistant U.S. Atty. Steven D. Clymer, one of two lead prosecutors in the case, said in the government’s sentencing memorandum.

With prosecutors and defense lawyers staking out radically different positions, Davies--a generally tough sentencer but one who has shown a willingness to consider a range of factors in imposing punishments--will be on the spot. If he gives short sentences, foes of the officers would almost certainly protest and prosecutors could appeal; if he imposes long ones, the officers and their lawyers have vowed to challenge the judge in the U.S. 9th Circuit Court of Appeals.

Most observers predict that Davies will take a middle course, imposing sentences of four to six years each and giving the defendants some time to gather their things and say goodby to their families before surrendering to the Board of Prisons.

During the trial, the judge often sought compromise solutions to legal issues, balancing the interests of the government against a desire to protect the rights of the defendants. Some observers cite that as evidence that Davies may be likely to follow the same instincts during sentencing.

Others say sentences in the four-to-six year range would appropriately account for the range of difficult factors in the long and volatile case against the officers.

“It’s only a guess,” UCLA law professor Peter Arenella said, “but I would look for a sentence in the middle range, approximately five years.”

Before the judge can even consider whether Koon and Powell should go to prison, he must address the question of whether they received a fair trial. New trial motions are routinely made after defendants are convicted, and Koon and Powell are no exception. Such motions usually are denied.

Davies presided over the trial that resulted in convictions against Koon and Powell--along with acquittals for Officer Theodore J. Briseno and former Officer Timothy E. Wind. At the end of the trial, even lawyers for the convicted officers generally credited Davies with giving them a fair hearing. Koon sent the judge a note thanking him for a fair trial.

Most of the defense arguments regarding the fairness of the proceeding grow out of the prosecution’s use of a videotape of Briseno testifying against his fellow officers in last year’s state trial.

Defense attorneys raised a host of legal objections to the use of the videotaped testimony in the federal trial. After two days of argument, Davies ruled against the defense, allowing an edited version of the tape to be played for the jury.

Since the trial ended, lawyers for Koon and Powell have reiterated their complaints and have added another objection. Federal prosecutors repeatedly accused Briseno of lying during the state trial, and defense lawyers say it was improper for the government attorneys to present testimony that they believed was false.

“This type of error goes to the essential justice of the proceedings and affects the integrity and reputation of the judicial process,” William Kopeny, one of Powell’s lawyers, argued in a motion asking for a new trial. “The evidence here may very well have made the difference between a conviction and an acquittal or a hung jury.”

In response, prosecutors note that they told the jury that they believed Briseno fabricated part of his testimony--in particular, his description of why he failed to report the force used against King. Although prosecutors did not call witnesses or present evidence on that topic, they made the point in their closing arguments.

“The record unequivocally establishes that the government never tried to convince the court, the parties or the jury that the fabricated portions of the former testimony were true,” Clymer wrote in one government brief.

If Davies denies the motions for a new trial, he will move to the task of deciding what sentences to impose on each of the officers. His options are limited because federal sentencing guidelines, which assign mathematical values to offenses, narrow the choices.

Still, the guidelines are subject to interpretation, and prosecutors and defense attorneys have adopted strikingly different rationales for computing the sentences. Depending on which one Davies adopts, he could arrive at sentences ranging almost anywhere from probation to the 10-year maximum.

Normally, the federal probation office would prepare a pre-sentence report that would recommend a rationale. But in this case, the probation office has chosen an unusual course. Although the pre-sentence report to the judge is sealed, sources say that the department has not made a specific recommendation but rather has outlined two different options for Davies to consider.

They revolve around the question of whether the assault on King was “minor” or “aggravated,” an issue that the probation office does not resolve in its report.

Lawyers for the officers have asked Davies to apply the minor assault standard, while prosecutors argue that it was an aggravated assault. Under federal law, aggravated assault is defined as an assault that involves a dangerous weapon intended to do bodily harm or one that resulted in serious bodily injury.

In this case, prosecutors argue that both of those definitions apply. Powell used a police baton to strike King, and King suffered a broken ankle and 15 facial fractures, among other injuries.

That would appear to make the issue simple. But if the King case has shown anything, it is that few issues are resolved simply.

Defense attorneys say neither the weapon nor King’s injuries fit the definitions for aggravated assault. On the weapon question, they say the baton is different from the kinds of weapons envisioned by the drafters of the sentencing guidelines.

“These officers are privileged to use this weapon,” said Koon’s lawyer, Ira Salzman. “They’re not a couple of robbers who armed themselves.”

Moreover, while defense lawyers acknowledge that King did suffer serious injuries, they note that even prosecutors have conceded that the officers had a right to stop King and to strike him when he resisted at first. As a result, King’s most serious injuries, those to his face and head, may have been suffered during the legal portion of the incident. If so, defense attorneys argue, the officers should not be punished for an aggravated assault.

That argument is more difficult to make with regard to King’s broken ankle, however. The videotape shows that the blows to King’s legs all occurred during the last minute or so of the beating--all of which a government expert testified was improper.

Layn R. Phillips, a former federal judge who now practices law in Los Angeles, called the defense positions creative and well-argued. But he said the sentencing guidelines make it virtually impossible for Davies to conclude that the assault was a minor one. “In golf terms, this issue is a gimme,” Phillips said.

No matter which type of assault Davies concludes the officers are guilty of, the guidelines require that he increase the sentence because the officers violated King’s constitutional rights to be safe from the intentional use of unreasonable force and to be protected from harm while in official custody.

From there, Davies could add more time for the seriousness of King’s injuries, for the use of a dangerous weapon, or, in Koon’s case, for obstructing justice. Koon deserves that extra punishment, according to prosecutors, because they say he lied during his testimony in the federal trial--a suggestion that Koon’s lawyer calls “unprincipled.”

For their part, defense attorneys say Davies should reject all of those enhancements and then reduce the sentence for several reasons. Federal law specifically allows judges to reduce sentences in cases where the victims of crimes have engaged in conduct that contributed to the offenses against them. In this case, King fled from police officers and resisted the initial efforts to arrest him, both of which analysts say make strong cases for reducing the officers’ sentences.

Salzman said he expects to make that argument and also to press for a number of other grounds for sentence reduction. Legal analysts say Davies could further reduce the sentences if he finds that Koon and Powell have suffered by being tried twice for their actions and by the probable loss of their jobs as LAPD officers.

“They’ve been through more than most criminal defendants have been through,” said Laurie Levenson, a Loyola law professor and former federal prosecutor. “Judge Davies may decide to take that into account.”

Levenson said she believes Davies will accept some of the government’s arguments and some of the defense’s. The result, in her view, would be a sentence of five to six years for each officer.

Most analysts echo that reasoning and that sentence, but some do not.

“I think it’s a straight probationary case,” said Briseno’s lawyer, Harland W. Braun. “The question is whether Judge Davies has the courage to do that.”

Judge Phillips, by contrast, said he believes that each of the officers will be sentenced to at least seven years and added that sentencing adjustments could push them up to the 10-year maximum. Davies, according to Phillips, will not be able to impose much lighter sentences even if he wants to because of the sentencing guidelines.

If Davies elects to send the officers to prison--and almost all observers believe that he will--he must face the final and, in some ways, most emotional decision: Should the officers be locked up immediately or allowed to remain free on appeal?

In a brief filed July 16, prosecutors argue that federal law requires the judge to lock them up because they were convicted of crimes of violence.

Powell’s lawyer, Michael P. Stone, said he considers that an example of the government’s overbearing approach to the sentencing.

Salzman, Koon’s attorney, agreed. “That’s punitive and vengeful,” he said.

Both defense lawyers note that Koon and Powell have made every court appearance for the past two years, evidence that they are no risk to flee. Flight risk is just one consideration, however, and prosecutors say that the defendants can remain free on bail only if they meet one of several conditions regarding their likelihood of prevailing on appeal. None of those conditions exist, according to the government lawyers, and therefore the officers should be imprisoned.

Again, experts point to a possible middle course that might suit the law and Davies’ temperament.

Phillips and other legal experts said they would expect Davies to deny bail but probably grant the defendants a month or two to get their affairs in order before surrendering to authorities.

As they approach their final day in court, Koon and Powell have had months to think about what final words they might offer Davies. Although neither has spoken publicly about those thoughts, Powell has given a hint. In a recent column for the police union newspaper, he suggested that he is prepared to go down fighting.

“I can’t even picture being put in prison because a squeaky wheel needed oil,” Powell wrote, “because an outspoken minor portion of the population was louder than the under-spoken majority of the population. . . . If I must go to prison, it is better to go there an innocent man.”