Appeals Court Hears Attorneys Scrap Over U.S. Trial, Terms of Koon, Powell

Federal prosecutors, arguing that two former Los Angeles police officers were properly convicted of violating Rodney G. King’s civil rights, asked an appeals court Monday to uphold their convictions and order a judge to give them longer prison sentences.

Defense attorneys, meanwhile, accused prosecutors of inflaming the jury with inappropriate arguments and of improperly using videotaped testimony of former Officer Theodore J. Briseno.

Lawyers for Stacey C. Koon and Laurence M. Powell, both of whom are serving 30-month prison terms, told the U.S. 9th Circuit Court of Appeals that those moves constituted legal error and should result in reversal of the convictions or in the officers receiving a new trial.

In their arguments, prosecutors sought to persuade the appellate judges that a 1991 appellate court decision overturning the conviction of former White House aide Oliver North should not apply to cases involving police officers and should not be the basis for evaluating whether Powell and Koon received fair trials in last year’s civil rights case.

If the judges--Betty Binns Fletcher, James R. Browning and James M. Fitzgerald--follow that advice, they could craft new standards for the way police abuse cases are prosecuted. That would almost certainly require the U.S. Supreme Court to review the King criminal case and settle some of the legal questions it has raised.

The three judges gave little indication which way they were leaning, interrupting only a few times during nearly two hours of argument at the Pasadena courthouse. It could be months before they rule.

In their portion of Monday’s session, prosecutors admitted that one statement by Justice Department lawyer Barry F. Kowalski was improper.

“There was one thing that everyone from Paris to Tokyo noticed, one thing that everyone saw,” Kowalski said in his closing argument to the jury last year.’. . . The thing that everybody saw, that everybody was so outraged about was that the defendants were beating a man who was on the ground.”

*

Assistant U.S. Atty. Steven D. Clymer, who prosecuted the case along with Kowalski and two other government attorneys, conceded Monday that his colleague’s comment was inappropriate, but he noted that no defense lawyer had objected at the time and said the remarks had not caused enough damage to warrant a new trial. Given the number of witnesses and the abundance of evidence, Clymer said, the one remark “clearly did not rise to the level of prejudicing the jury.”

Clymer added that rhetorical flourishes in closing arguments were not limited to the government lawyers. One defense attorney discussed the police as the “thin blue line” that protects society from criminals, while another compared the trial of the officers to that of Jesus Christ and suggested that Clymer “would have indicted the apostles.”

As expected, most of the argument Monday turned on two points: the use of the Briseno videotape and the reasoning by which U.S. District Judge John G. Davies computed the prison sentences.

Briseno testified during the state trial of the four officers. In that testimony, he blamed Koon for failing to control the incident and said Powell struck King “above the shoulders” with his baton, a contention Powell has always denied.

In the federal case, Briseno elected not to take the witness stand, so prosecutors introduced an edited videotape of his state court testimony as one of their final pieces of evidence. Defense lawyers objected, saying that Briseno’s recollections of the event had changed since the end of the state case because he viewed an enhanced videotape of the incident. In addition, lawyers for the officers noted that before testifying in state court, Briseno had read statements made by his fellow officers to Internal Affairs investigators.

Officers are required to give those statements or risk losing their jobs. But, because the Constitution guarantees all citizens the right not to be forced to incriminate themselves, so-called “compelled statements” may not be used in court. Prosecutors also are prevented from taking testimony from witnesses who have been tainted by their exposure to any compelled statements.

*

In 1991, a federal appeals court in Washington, overturned the conviction of North in part because it found that witnesses had been exposed to his nationally televised, compelled testimony before Congress.

Joel Levine, who represents Koon, argued that the same reasoning should apply to the King case. Briseno’s testimony, Levine said, was influenced by his exposure to the compelled statements of Koon and Powell, and therefore jurors should not have been allowed to hear it.

If any witness’s testimony is tainted, Levine said, “that witness cannot testify in any form.”

Irv Gornstein, a Justice Department attorney, said prosecutors presented ample evidence that Briseno’s testimony was not tainted by his reading of the compelled statements. Moreover, Gornstein argued that police cases should be treated by a different standard.

Police officers accused of wrongdoing are routinely forced to give statements to Internal Affairs authorities, and if those statements are allowed to undermine subsequent prosecutions, officers will, in effect, be allowed to subvert trials of their colleagues, Gornstein said.

In appealing the sentences of the officers, Clymer criticized Judge Davies’ reasoning on several counts. Notably, Clymer said Davies had erred by lowering the two officers’ sentences based on King’s role in provoking the offense. Unlike civilians, officers are trained to deal with provocation, Clymer said.

In addition, Davies found that King had stopped provoking the officers before the illegal portion of the beating began. Since the officers’ conduct was therefore not the direct result of King’s provocation, Clymer said, King’s actions should not influence the sentences.

Lawyers for the officers defended Davies’ sentences, saying that the judge’s determination carefully and correctly took into account a range of factors.