Can Rodney King Get An Unbiased Civil Trial? : Law: The same judge who presided over the criminal trial is set to hear King’s civil case. But he might already have made up his mind.

The rules on disqualification of federal judges are not working for Rodney G. King or the public in his civil case against the City of Los Angeles. King is seeking damages for injuries inflicted by the four Los Angeles police officers who beat him--two of whom were convicted in the now-famous criminal trial. The same judge who presided in that criminal case is now hearing King’s civil case--even though comments he made to justify a lenient sentence for the convicted police officers reveal he has already made up his mind about some important issues. Judge John G. Davies’ presence as trial judge--over the objections of King’s attorneys--could well undermine public faith in the trial’s basic fairness.

In the criminal trial, Davies sentenced officers Stacey C. Koon and Lawrence M. Powell to 30-months imprisonment--far less than the minimum six-year sentence, as set out in the federal sentencing guidelines. One might question whether it is ever appropriate for a judge who has heard a criminal case to preside in a civil case involving the same facts. But pass on that issue and consider the unusual aspects of Davies’ role as judge in King’s civil case.

First, Davies downplayed the seriousness of King’s beating in a manner that seems at odds with the jury’s verdict. Second, he used “double jeopardy” as a reason for departing from the sentencing guidelines--though the U.S. Supreme Court has long permitted state and federal prosecutions for the same conduct.

In his sentencing memorandum, Davies wrote that King sustained the following injuries during the beating: “fractures of facial bones and lacerations to the right forehead and facial area, (2) fracture of the distal fibula in the right leg, and (3) body bruises, contusions, and abrasions.”

But then Davies, for sentencing purposes, decided that injuries to King’s face--though inflicted by blows from Powell’s baton--were, in the words of the judge, “unintentional,” because “Officer Powell never clearly applied force to Mr. King’s head again, although he had ample opportunity to do so.”

Davies next decided that although Powell was responsible for the fracture of King’s leg, the baton blow causing it was not unlawful--because King was attempting to escape at the time.

What did Powell do that Davies found unlawful? He found that Powell’s conduct was illegal when he “struck Mr. King despite his perception that (he) was no longer a threat.” However, to justify his lenient sentence, Davies also found that “the injuries for which Powell is liable are limited to contusions, perhaps abrasions, but no fractures.”

Davies applied this same reasoning to the other convicted policeman. The jury had found Koon guilty of permitting unlawful blows in his role as supervisor of the arresting officers. But having found that Powell was not criminally liable for King’s fractures, Davies, to be consistent, had to find that “Officer Koon is not criminally liable for permitting the blows that caused (King’s fractures.)”

What did Koon do that Davies found unlawful? He allowed Powell and Timothy E. Wind--who was acquitted--to cause King’s bruises and contusions (but not his fractured bones)--though he had a reasonable opportunity to stop them.

Davies also based his leniency on double-jeopardy grounds. He conceded that there is no constitutional prohibition against double jeopardy when a federal prosecution follows a state prosecution. Nonetheless, Davies then determined that “this second prosecution has the specter of unfairness and . . . it contributes to the perception that this case falls within the downward departure standards of the (sentencing) guidelines.”

This comment was so unusual that Steven D. Clymer, the federal prosecutor, took the extraordinary step of warning Davies, in open court, “That’s a dangerous position for the court to have taken.”

Finally, to justify his sentence, Davies noted that Koon and Powell were good family men. He observed that King, in contrast, had motivated their unlawful conduct by attempting to avoid arrest.

Put aside the criminal case after assuming, for the sake of analysis, that everything Davies said in his oral and written sentencing remarks was within his discretion to consider in determining how to apply federal sentencing guidelines. Assume further, that Davies’ 30-month sentences for Koon and Powell, though far too lenient for many, were nonetheless within his discretion to hand down.

Now turn to the civil case over which Davies is scheduled to preside.

The governing statute on the disqualification of federal judges in civil cases provides that a judge “shall disqualify himself (or herself) in any proceeding in which his (or her) impartiality might reasonably be questioned.” Even if Davies can be impartial in King’s civil case, his “impartiality might reasonably be questioned.”

As revealed in his sentencing memorandum, Davies has already passed judgment on issues of relevance in King’s civil trial. That gives him a strong enough appearance of partiality to prompt his removal.

Apart from the wisdom of how Davies exercised the discretion conferred on him by law in a criminal case, he now stands as the one judge, among 27 federal district judges in Los Angeles, who is not qualified to preside over the civil case of Rodney King vs. City of Los Angeles. Yet he, and not one of the other 26 judges is scheduled to preside. Something is very wrong here.