A federal appellate court has denied requests for Sgt. Stacey C. Koon and Officer Laurence M. Powell to remain free while they pursue their appeals in the Rodney G. King civil rights case, making it almost certain that the officers will begin serving their prison sentences next month.
The decision by the U.S. 9th Circuit Court of Appeals, which prosecutors and defense attorneys received Monday, is a stinging setback for the two Los Angeles police officers. They and their lawyers have argued that the men should not go to jail until an appellate court has the chance to decide if their convictions were proper.
“It’s incredibly disappointing,” said Michael P. Stone, one of Powell’s lawyers. “The family is taking it so hard. They take it harder than he does.”
Prosecutors, by contrast, welcomed the 9th Circuit’s ruling.
“I’m very pleased with the court’s decision,” said Assistant U.S. Atty. Steven D. Clymer, one of two lead prosecutors in the case. “It’s obvious they understood and agreed with our arguments.”
In its brief order, the appellate panel found that the two officers were each convicted of a “crime of violence.” That finding rejected a position argued by lawyers for the officers, who had asked the court to conclude that the civil rights violations charged in this case did not necessarily amount to violent crimes.
Federal law governing bail issues states that defendants who are convicted of violent crimes usually are not eligible to remain free on bail while they pursue their appeals. That condition can be waived under unusual circumstances, but prosecutors had argued that no such special circumstances existed in this case.
The appellate judges agreed. Koon and Powell, the judges ruled, “have failed to show that their circumstances . . . are sufficiently exceptional to warrant release on bail.”
The order was signed by judges Harry Pregerson, one of the circuit’s most liberal members, and Pamela Rymer, a moderate conservative. A separate panel of the 9th Circuit will hear the appeals themselves.
Lawyers for the officers have filed notice of their intention to appeal the convictions, while prosecutors have announced that they will appeal the 2 1/2-year sentences imposed on the two men. The appeals are not likely to be heard until late this year or sometime in 1994.
Lawyers for Koon and Powell first had asked U.S. District Judge John G. Davies to allow their clients to remain free on appeal, but Davies denied that request during the sentencing hearing Aug. 4. The 9th Circuit decision upholds Davies’ ruling, as well as his order that the two officers report to the Bureau of Prisons as scheduled on Sept. 27.
The officers’ only recourse now would be to appeal to the full 9th Circuit and, failing that, to the U.S. Supreme Court. Legal analysts give them almost no chance of succeeding.
Typically, the Supreme Court accepts cases only in which there are substantial legal questions at stake, said USC law professor Erwin Chemerinsky. The bail issue does not appear to present any such weighty legal matter, he said, making it unlikely that the justices would agree to review it.
“I’d say their chances are close to zero,” said UCLA law professor Peter Arenella. “It’s extremely unlikely that the U.S. Supreme Court would consider anything from them at this point.”
Laurie Levenson, a Loyola law professor and former federal prosecutor, agreed, saying she did not believe that there was “any plausible chance of the Supreme Court intervening.”
As lawyers for the officers weighed their options, Ira Salzman, one of the lawyers who represents Koon, said he and other lawyers involved in the case would consider an appeal. But he conceded that there was not much chance of persuading the nation’s highest court to overturn the 9th Circuit on the bail issue.
“Certainly the prospects for success on that score are now very dim,” Salzman said. “It’s very disappointing.”
Similarly, Stone conceded that “the chances get bleaker as you head up the appellate ladder.” He added, however, that he is confident some appeal will be attempted.
“We’re not just going to let it sit,” Stone said.
What concerns lawyers for the officers is that the appeals process could take so long that the two defendants would have served most of their sentences by the time they have exhausted their appeals. If they eventually prevailed, they might already have been forced to serve so much of their prison time that a victory would be hollow.
“There are some substantial issues on appeal,” Salzman said. “But with this ruling, if in fact we get appellate relief, the bulk of the sentences will have been served.”
Salzman added that the latest ruling will make it more difficult for Koon and Powell to prepare for the upcoming civil trial involving King’s lawsuit against the officers and the city of Los Angeles. That trial has been set for next year, although Davies--who, coincidentally, is presiding over that case as well--has urged both sides to pursue a settlement.
If the officers cannot persuade the Supreme Court to overturn the 9th Circuit decision, they will have to surrender to authorities at the end of next month. In the meantime, the Bureau of Prisons is attempting to locate a facility where the officers’ safety might best be protected--a difficult task given the officers’ notoriety.
That process is under way, said Dan Dunne, a spokesman for the Bureau of Prisons in Washington. The officers will be notified of the prison that is selected for them and will be ordered to surrender either at the facility or to turn themselves into U.S. marshals in Los Angeles, who would transport them, Dunne said.