Sentencing Expert Urges Leniency for Koon, Powell : King beating: Lawyer says federal guidelines he helped draft do not fully apply to such an ‘unusual’ case.

A lawyer who helped draft federal sentencing guidelines has told U.S. District Judge John G. Davies that he should consider leniency when he sentences Officer Laurence M. Powell and Sgt. Stacey C. Koon Wednesday because the guidelines never anticipated a case like the beating of Rodney G. King.

“Because this case is highly unusual and differs greatly from the cases considered by the commission in promulgating the guidelines, it clearly calls for departure from the guidelines,” David A. Lombardero, former chief counsel to the sentencing commission, said in a letter sent to Davies on Friday and obtained Monday by The Times.

Although a number of experts have expressed opinions about the sentencing of the officers who beat King, Lombardero brings special credentials. He served as counsel to the sentencing commission in the mid-1980s and was a principal drafter and editor of the guidelines.

It is unclear what impact, if any, Lombardero’s letter will have on the judge. Nevertheless, the lawyer’s reading of the guidelines was warmly welcomed by defense attorneys, who said it reinforced their arguments that prosecutors are overreaching in their requests for long prison terms.

“I was so pleased with it that the first thing I did was call Larry and fax it to him,” said Michael P. Stone, Powell’s lawyer. “In a rather dark and gloomy week, this was a bright ray of hope and light.”

Ira Salzman, who represents Koon, said he too was pleased by Lombardero’s findings, which echo many of the points Salzman has raised about the sentencing.

Prosecutors have argued that Powell should be sentenced to seven to nine years--just short of the 10-year maximum term for violating the federal civil rights law. Koon, they argue, should serve nine to 10 years. Lombardero does not recommend any particular sentence but in an interview called the prosecution’s recommendations grossly excessive.

Other legal analysts generally endorse the prosecution’s analysis of the sentencing guidelines but have suggested that the sentences may be somewhat shorter than those the government attorneys are seeking. Most of those experts predict sentences for both officers in the four- to six-year range.

Even Lombardero said his analysis of the guidelines, as written, produced a sentence of five to six years. But he believes the drafters of the guidelines did not anticipate a case such as this--in which there is no proof that the officers acted with racial malice and in which even prosecutors acknowledge that the officers were entitled to use some force in their arrest of King.

“It is clear that, by any standard, this case is ‘unusual,’ ” Lombardero wrote. “The sample of civil rights cases used by the commission in formulating the guidelines was quite small, and it is unlikely to have included even one case similar to this one.”

Assistant U.S. Atty. Steven D. Clymer, one of two lead prosecutors in the case, declined to comment on Lombardero’s analysis.

Charles Weisselberg, a clinical professor of law at USC, said that although Lombardero raised interesting questions about the guidelines, his letter is unlikely to persuade Judge Davies to depart widely from them. “He’s pointing out some things that, I have to say, the judge probably already knows,” Weisselberg said.

Lombardero is an attorney with the Los Angeles law firm of Hughes, Hubbard & Reed, but his letter stressed that he was writing on his own behalf. In an interview, he added that although he had showed a draft of his letter to lawyers for the officers, he did not write it at their request and was not paid for it.

Under the system of federal sentencing guidelines, judges first must determine the underlying offense--prosecutors in this case say it is an aggravated assault, while defense attorneys contend it is a minor assault. Davies will make that decision, tack on time for the violation of King’s rights and then decide whether to enhance the sentences. Once a range is established, Davies could elect to depart downward from the range, as defense attorneys have suggested.

Many analysts say Davies should enhance the sentences because the officers used dangerous weapons on King and because they inflicted serious bodily injury. In his letter, Lombardero questioned those enhancements and suggested that Davies should depart downward for several reasons.

Chief among those, he said, is King’s conduct.

“I do not pretend to know all of the facts of this case,” Lombardero said in his letter. “Nonetheless, it is clear from the extensive media coverage that Mr. King’s wrongful conduct in evading, resisting and even taunting police officers substantially provoked the defendants’ conduct. Thus, the sentencing guidelines themselves explicitly sanction departure in this case.”

Although the sentencing guidelines specifically allow for a judge to reduce sentences based on the conduct of the victim, Lombardero added that Davies should consider less severe sentences than prosecutors are requesting because of factors unique to this case. In particular, Lombardero rejects the prosecution’s contention that the officers should receive sentencing enhancements for using a dangerous weapon and for causing serious bodily injury to King.

“Here, unlike the typical case, the defendants were plainly authorized to use a ‘dangerous weapon’ (a police baton) in the discharge of their official duties and, at least initially, properly did so,” Lombardero wrote. “The guideline does not take into account the fact that the use of a ‘dangerous weapon’ was lawfully authorized.”

Lombardero’s letter also echoes the defense position with respect to King’s injuries. Although King suffered 15 facial fractures, a broken ankle and other injuries, lawyers for the officers argue that many of those injuries were the result of legal blows during the portion of the beating that even a government expert testified was justified.

“It would appear that the court should not count injuries that resulted from lawful conduct and therefore should apply a lesser adjustment than that otherwise called for,” Lombardero wrote.

Choosing a Sentence

Federal guidelines set the parameters for the sentences that U.S. District Judge John G. Davies can impose on Officer Laurence M. Powell and Sgt. Stacey C. Koon. The judge must make a number of decisions, all of which affect the total level, which in turn determines the length of the sentence.

Maximum Sentence Path:

Underlying offense: The judge must determine whether it was:

An aggravated assault. One in which either a dangerous weapon is used, not merely brandished as a threat, or one that results in serious bodily injury. Level 15.

Violation of civil rights: The jury verdicts make this undisputed. Increase by 6 levels.

Factors that might increase the sentence if the judge decides there was:

Use of a dangerous weapon: Increase by 4 levels.

Serious bodily injury to victim: Increase by 4 levels.

Obstruction of justice*: Increase by 2 levels*

Totals

Maximum (aggravated assault with enhancements)

Koon: Level 31 (9 to 11.3 years, but legal maximum is 10 years)

Powell: Level 29 (7.3 to 9 years)

+

Minimum Sentence Path:

Underlying offense: The judge must determine whether it was:

A minor assault. This level of assault is defined as one that involves physical contact, or one in which a dangerous weapon is possessed and its use threatened. Level 6.

Violation of civil rights: The jury verdicts make this undisputed. Increase by 6 levels.

Factors that might increase the sentence if the judge decides there was:

If the judge rejects the enhancements, no increase.

Totals

Minimum total (simple assault with no enhancements)

Koon: Level 12 (10 to 16 months)

Powell: Level 12 (10 to 16 months)

SOME FACTORS THAT MAY DECREASE THE SENTENCE

King’s role in the offense: Guidelines permit a judge to reduce a sentence “if the victim’s wrongful conduct contributed significantly to provoking the offense behavior.”

The officers’ loss of their positions: Judges sometimes take into consideration the difficulties already suffered by defendants, in this case the likely end of their police careers.

Two trials for the officers: Although there is no legal double jeopardy in this case, Davies might conclude that the officers had suffered greatly by going on trial twice for their actions.

* Prosecutors say Koon should receive this enhancement for lying under oath. Powell did not testify, and prosecutors are not asking Davies to find that he obstructed justice.

Sources: United States Sentencing Commission, Guidelines Manual 1991; government sentencing memorandum; interviews with defense attorneys.