Judge Raises Questions on Briseno Acts

As U.S. District Judge John G. Davies meticulously laid out his version of what happened during the beating of Rodney G. King, he minimized the illegal conduct of Stacey C. Koon and Laurence M. Powell.

But, at the same time, Davies’ controversial factual findings also cast a shadow across one of their acquitted colleagues--Officer Theodore J. Briseno, the only one of the four accused officers who has any chance of getting his job back. Next month, a departmental disciplinary board will determine his fate.

According to Davies, every blow seen on the videotape of the incident was legal until King rolled over on his stomach 55 seconds into the tape. At that point, Davies said, King became a “cuffable candidate” and officers were obliged to stop hitting him.

Powell and Officer Timothy E. Wind did pause at that point for several seconds, and Powell appeared to reach for his handcuffs. But at one minute and three seconds into the tape, Briseno steps forward, lifts his left foot and brings it sharply down on King’s upper back. It is that blow, according to Davies, that initiated the illegal portion of the incident, a 19-second flurry of baton blows and kicks by Powell and Wind.

“Given the judge’s findings,” lawyer Michael P. Stone said after the sentencing, “I think we all could draw the conclusion that, but for the Briseno stomp, none of these men would be guilty.”

Briseno, who has been suspended without pay for more than two years, is scheduled to go before a Los Angeles Police Department board of rights on Sept. 1. If he prevails, Briseno would be eligible to return to the force, collect some back pay for the time he has been suspended and qualify for the pension that he would lose if he is fired for using excessive force.

Although Briseno declined comment Thursday, he has long maintained that he tried to stop the beating of King and has twice been acquitted of wrongdoing in connection with the incident. On the videotape, he can be seen blocking Powell at one point and Wind at another, though witnesses disagree about why Briseno took those actions. He says that he used his foot to hold King down on the pavement in order to prevent him from being beaten further, another point that his co-defendants and their supporters vehemently dispute.

Briseno’s supporters see him as a well-intentioned officer who did his best during the confrontation; his detractors say he is a liar who circled King, looking for the chance to inflict some pain of his own, ultimately stomping on him.

Some members of the federal jury have praised Briseno and offered to assist him in his disciplinary hearing.

“I think he did an excellent job,” said one juror, who has asked to be identified only as Fred. “I really think the public needs to know that there was someone out there that night who really cared and that person was Ted Briseno.”

Although Davies did not address Briseno’s role in detail, his interpretation of the incident and his comments from the bench cast doubt over Briseno’s version of why he pushed King to the pavement with his foot.

Davies, in his remarks from the bench Wednesday, went so far as to say that “Briseno, who was supervised by Mr. Koon, is guilty of one single kick or one single stomp.”

Harland W. Braun, one of Briseno’s lawyers, said the use of the word guilty was particularly jarring because Briseno has never been convicted of any crime. Davies did not include that language in his written sentencing memorandum, however, and the judge repeatedly admonished courtroom observers Wednesday that if there were discrepancies between his oral and written comments, the document should be the source of record.

Braun said he did not believe that the judge’s remarks would be admissible during Briseno’s board of rights hearing. Because the comments were made during the sentencing of Koon and Powell--a session that did not involve Briseno in any way--Braun said they are irrelevant to Briseno’s disciplinary hearing.

Braun added that if the judge’s remarks are introduced against Briseno, he would call jurors in order to rebut them.

Interestingly, that creates the possibility that comments by the judge and jury could be played against each other--a highly unusual situation for which legal analysts believe there is little precedent.

“It is very strange,” said Laurie Levensen, a Loyola law professor and former federal prosecutor who closely followed the trial. “The gist of Judge Davies’ sentence seemed to undercut the jury.”

Although Briseno’s acquittals will certainly be well-known to the three senior LAPD officers who act as judges during his disciplinary hearing, the standard for firing an officer is lower than that required to convict one of a criminal act. To win a conviction, prosecutors must show beyond a reasonable doubt that a defendant committed a crime. To fire an officer, department internal affairs advocates must only show that a preponderance of the evidence favors their case.

Braun and Gregory G. Petersen, who also represents Briseno in his administrative case, have said they believe the departmental charges against their client are essentially political, and they are gearing up for a public battle. Petersen has written to the LAPD’s internal affairs division, bluntly suggesting that political considerations may be overshadowing Briseno’s rights.

“We fully expect that we may lose at this board of rights, due to the improprieties and political considerations involved in this case,” Petersen said in a June 26 letter. But Petersen reminded the LAPD that if the department fires Briseno, his case will end up right where every other element of the March 3, 1991, police beating has come to rest: in court.

“Who was at fault for what happened in the King case will be determined by the federal court,” Petersen said. “As you know under the charter of the city of Los Angeles, the board of rights decision is not binding on any court of law.”