Argument for Leniency in King Beating Assailed : Court: Prosecutors say lawyer who wrote to judge overstated his role and, as a police reservist, may be biased.

Scrambling to contain an unusual last-minute controversy over today’s sentencing for Officer Laurence M. Powell and Sgt. Stacey C. Koon, federal prosecutors struck back Tuesday, accusing a lawyer who wrote to the judge of mischaracterizing his qualifications and failing to disclose the fact that he is a reserve police officer.

David A. Lombardero, a Los Angeles attorney and former chief counsel to the U.S. Sentencing Commission, sparked the exchange when he wrote to U.S. District Judge John G. Davies on July 30, urging him to impose sentences less severe than those called for by federal sentencing guidelines. The guidelines, Lombardero said in his letter, did not anticipate a case such as the March 3, 1991, police beating of Rodney G. King.

In his letter, Lombardero referred to himself as “a principal drafter and editor” of the guidelines, but did not mention that he also is a reserve police captain in Monterey Park.

“The court should be aware that Mr. Lombardero is an active reserve police officer with the city of Monterey Park, and thus may have a bias in this case,” prosecutors Barry F. Kowalski and Steven D. Clymer said in a court filing late Tuesday.

In an interview, Lombardero said he did not include that information because it was not relevant to the legal arguments he made in his analysis of the sentencing guidelines.

“The legal arguments that I made are quite well supported by the legislation and the guidelines,” he said. “My own personal experiences (as a reserve police officer) did not enter into this.”

Lombardero’s letter to Davies touched off an intense eleventh-hour flurry of activity, with lawyers for the officers hailing his analysis and prosecutors rushing to blunt its effect. In addition to raising questions about Lombardero’s qualifications and possible bias, prosecutors also rebutted his argument, citing a letter in which the U.S. Sentencing Commission refused to endorse Lombardero’s analysis and noted that most courts limit their reading of the guidelines’ intent to what is contained in the manual.

Writing at the request of federal prosecutors, Phyllis J. Newton, staff director of the Sentencing Commission, submitted a letter Tuesday in which she noted that Lombardero held the title of chief counsel for only four months. Although she did not contradict any of Lombardero’s statements directly, Newton downplayed his contribution to the drafting of the guidelines.

“Regarding Mr. Lombardero’s characterization of himself as a ‘principal drafter and editor’ of the guidelines, please be aware that, pursuant to statute, seven voting commissioners appointed by the President and confirmed by the Senate set commission policy and are responsible for developing and amending the sentencing guidelines,” Newton wrote. “While staff members, such as Mr. Lombardero, provide staff work and advice to inform commissioners’ deliberations, the individual commissioners are actively involved in drafting the guidelines and the final decision to promulgate guidelines is theirs alone.”

Lombardero’s letter to the judge was sent just days before the concluding act of the federal civil rights case that has gripped Los Angeles since the officers were indicted a year ago today. Nevertheless, the intensity of the response to his analysis appeared to take Lombardero by surprise.

Lombardero said Tuesday that he was besieged by phone calls, some of them threatening. But he vigorously defended his statements against the challenges being mounted by prosecutors and he reasserted the central role that he said he played in drafting the guidelines.

“The statements that I made about my employment at the commission are accurate,” he said. “I was principally responsible for writing portions of the guidelines and for editing the guidelines. I also wrote the report to Congress.”

Lombardero acknowledged, as Newton said in her letter, that he was not a member of the commission and did not vote to adopt the guidelines. In fact, Lombardero said that had it been up to him, he probably would not have approved the guidelines as written.

But he added that he never claimed to have been a policy-maker. Rather, Lombardero said he was an instrumental part of the drafting of the guidelines, which were then approved by commission members.

In addition to downplaying Lombardero’s qualifications, Newton pointedly refused to endorse his arguments and noted that courts generally do not look beyond the guidelines in order to determine the intent of the authors.

“It is the commission’s policy not to take positions regarding guideline application or departure issues in specific cases before the courts,” Newton wrote. “Importantly, the commission’s silence with respect to these issues should not be taken as an indication that the commission agrees with the positions advanced by Mr. Lombardero.”

Although Lombardero’s letter describes his interpretation of the intent of the guidelines with respect to civil rights offenses such as those Koon and Powell were convicted of, Newton rejected that approach to divining the drafters’ intent.

She cited federal law which notes that “the court shall consider only the sentencing guidelines, policy statements and official commentary” of the commission.

Sentencing for the officers is scheduled to begin this morning, and Judge Davies has cleared his calendar of all other matters. Ira Salzman, Koon’s lawyer, expects to call witnesses, and some observers predict that the hearing could last several hours.