Court Orders Longer Sentences for Koon, Powell : Law: Appeals panel upholds convictions in Rodney King case, but it denounces terms imposed by Judge Davies. Decision will probably more than double jail time.

In a stunning decision that reopens the Rodney G. King beating saga, a federal appellate court ruled Friday that U.S. District Judge John G. Davies improperly sentenced the two convicted Los Angeles police officers and ordered him to give them longer prison terms.

The U.S. 9th Circuit Court of Appeals rejected assertions by the two officers that they were improperly convicted, crediting Davies with “impeccable fairness” in managing the explosive civil rights case that unfolded in his courtroom last year.

But Judge Betty B. Fletcher, writing for the unanimous three-judge panel that was hearing the case for the full court, excoriated Davies for making a series of serious errors in sentencing Laurence M. Powell and Stacey C. Koon. The judges ordered Davies to resentence the officers, who have served nearly a year of their 30-month sentences. Defense attorneys said the hearing is likely to take place in the next few months.

“The sentences imposed by the District Court are inconsistent with the structure and policies of the sentencing guidelines and the federal sentencing statutes,” Fletcher wrote in an extraordinarily detailed opinion that filled two volumes. Fletcher, who was appointed by President Jimmy Carter, was joined by James R. Browning, a 1961 appointee of President John F. Kennedy, and James M. Fitzgerald, who was appointed by President Gerald R. Ford in 1974.

In sometimes blistering language, the appellate court ruled that Davies had improperly departed from federal sentencing guidelines when he lowered the sentences based on his findings that the officers would be vulnerable to abuse in prison, that they would pose no danger to the public, that the successive state and federal prosecutions had cast a “specter of unfairness” across the federal case, and that their illegal conduct was provoked by King’s actions.

Davies cited those factors in departing dramatically from sentences that would otherwise have been prescribed by the federal guidelines. Combined, those issues led Davies to cut the officers’ sentences by more than half, from at least 70 months to 30 months. Friday’s ruling could force him to increase the sentences back to 70 months or longer.

The federal civil rights trial was argued in the shadow of the 1992 riots and ended in a city that was nervous about the prospect of another eruption of violence.

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Announced on a misty Saturday morning, the guilty verdicts against Koon and Powell--along with not guilty verdicts for Timothy E. Wind and Theodore J. Briseno--were derided by some police officers and their supporters, but were greeted by celebrations in many areas of Los Angeles. For many, that joy was later undercut by Davies’ decision to impose sentences that were shorter than expected.

The officers heard news of their latest setback Friday morning at the federal institution in Dublin, Calif., where they have been held since late 1993. Their first word came from a radio report, and they nervously called their lawyers to check the news.

“He’s shaky,” lawyer Michael P. Stone said of his client, Powell, who delivered the majority of the blows during the March 3, 1991, incident. “His voice is shaking, and he’s upset. Larry was putting a lot of faith in the appeal of the convictions, which I was worried about.”

Stone said the double disappointment of losing the appeal of the conviction and then facing the possibility of a far longer sentence was a cruel blow.

“He’s getting a double-whammy today,” Stone said.

Ira Salzman, the lawyer who represented Koon, said his client also was stunned by the decision. But Koon, a veteran police sergeant who was in charge during the beating, weathered two criminal trials and a civil case with barely any hint of emotion. Friday was no different, Salzman said.

“He’s taking it rather well, but he’s certainly disappointed,” Salzman said. “This is difficult news.”

Friday’s decision means each officer could face sentences closer to the nine years sought by federal prosecutors.

“I’m pleased that the court obviously understood and agreed with our arguments,” said Assistant U.S. Atty. Steven D. Clymer, one of two lead prosecutors in the federal trial. “It’s a major victory for us.”

For critics of Davies who saw the sentences as unfairly lenient, the 9th Circuit’s action also was welcome news. Edi M.O. Faal, the lawyer who represented Damian M. Williams on charges that he attacked people during the first hours of the 1992 riots, said he was relieved the court recognized that the officers were being given preferential treatment.

Others echoed that view and praised the appellate judges for ordering a resentencing.

“We’ve said repeatedly that the judge erred,” said Jose DeSosa, president of the California State Conference of the NAACP. “I’m thankful to see the appellate court has upheld that they were found guilty and the sentence was too lenient.”

Ramona Ripston, director of the ACLU, said the ruling corrected mistakes that Davies made. “I think it’s hard for anyone to decide what the sentence should be, but I think the process was totally wrong.”

Daryl F. Gates, the retired police chief who criticized the officers for their role in the King beating but opposed the federal government’s decision to prosecute them, was angered by the ruling Friday.

“It’s disgusting,” Gates said. “These two guys have been put through absolute hell. And to have this added to it is indication something is seriously wrong with our system. No justice, no justice.”

Lawyers for the officers had asked the 9th Circuit Court to overturn the officers’ convictions, primarily on two grounds: that the use of videotaped testimony by Briseno was improper and that Briseno and a key prosecution expert both were tainted by exposure to compelled statements that the accused officers gave to police investigators after the incident.

Legal experts called those significant appellate issues, and lawyers for Koon and Powell argued the points in legal filings and in their appearance before the 9th Circuit Court this year.

Briseno did not take the stand during the federal trial, but prosecutors introduced an edited videotape of his state court testimony. During the state trial, Briseno criticized his colleagues, saying, among other things, that he had seen Powell strike King “above the shoulders” with his baton. Powell maintained that he never hit King in the head, an assertion that was challenged by prosecutors and some witnesses.

When Briseno decided not to testify in the federal trial, prosecutors introduced an edited videotape of his testimony in the state case--a move that lawyers for Koon and Powell said was improper for a number of reasons. Among other things, they argued that they did not have the chance to cross-examine the videotape, that introducing it so close to the end of the trial gave it undue weight, and that Briseno was allowed to testify about opinions on which he was not an expert.

The appellate judges disagreed.

On the issue of cross-examination, the panel found that lawyers for Koon and Powell “had a full and fair opportunity to cross-examine Briseno in the state trial.”

Similarly, the judges ruled in favor of the prosecution on the other issues regarding the Briseno tape, finding that Davies had appropriately allowed the tape to be played for jurors. The appellate panel also rejected a number of lesser issues, finding, for instance, that the federal trial did not violate the defendants’ rights not to be subjected to double jeopardy.

Having reviewed those and other defense issues, the appellate panel found that the officers received a fair trial.

“After a careful review of the record and the relevant authorities, we are convinced that the district judge correctly resolved each of the legal issues raised by appellants as to the guilt phase of the proceedings,” the judges concluded.

“I’m sort of knocked over,” said lawyer Harland W. Braun, who represented Briseno in the federal trial. He called the opinion “neither intellectually courageous nor politically astute.”

Like many legal observers, Braun had expected the convictions to be upheld. But he and some others were surprised by the panel’s decision to order new sentencing of the officers. “I had thought they would affirm everything and be done with it,” Braun said.

Instead, the same appellate panel that praised Davies’ handling of the trial sharply criticized him for the way he imposed the sentences.

In comments from the bench and in a 54-page sentencing memorandum, Davies found that federal sentencing guidelines called for a sentence of 70 to 87 months for the two convicted officers. But Davies then ruled that the case was so unusual in several respects that a series of downward departures were warranted.

His reasons for granting those departures were criticized at the time--Loyola law professor Laurie Levenson, who attended the federal trial, said Davies had “gone out on a limb with those findings.” The appellate court overruled him on every one.

“This opinion constitutes a ringing endorsement of Judge Davies’ trial rulings and a scathing indictment of his unduly lenient sentencing decisions,” said Peter Arenella, a UCLA law professor. “The opinion makes it absolutely clear there is no justification for any downward departure.”

One of the reasons Davies cited for lowering the sentences was that Koon and Powell would be subject to “additional punishment” that flowed from their convictions. He said this “punishment” included two types: the additional administrative proceedings to which they would be subjected by the LAPD and the anticipated abuse in prison because of their particular vulnerability as police officers.

“Personal and professional consequences that stem from a criminal conviction are not appropriate grounds for departing, nor are they appropriately considered as part of a larger complex of factors,” Fletcher wrote for the panel, adding that many people who are sent to prison suffer consequences beyond their incarceration.

“Individuals may lose their jobs or be foreclosed from serving in future professions; their marriages are destroyed; they may be plunged into poverty,” Fletcher wrote. “Some individuals may be deported, while those who have been convicted of drug or racketeering offenses may lose their homes and their investments to the federal government in forfeiture proceedings. World-class figure skaters may lose the right to compete in international competition.”

On the issue of the officers’ vulnerability to prison abuse, the appellate judges also disagreed with Davies. Some courts have reduced sentences in cases where defendants were particularly vulnerable because of their size, but the appellate court found that the issues were different in this case, where the vulnerability stems from the positions that the officers held and the notoriety of their offense.

“Nothing would prevent this rationale from being applied to numerous groups--such as gang members who may face increased abuse from members of a rival gang, police informants or child abusers--all of whom face an increased risk of abuse in prison,” the court found.

In crafting his sentencing memorandum, Davies had relied on a combination of several factors--vulnerability to abuse in prison, the successive state and federal prosecutions and the prospect of further punishments--to reduce the sentences by a total of three levels under the sentencing guidelines. But it was a fourth issue that Davies said justified the largest downward departure in the sentences: King’s role in provoking the offense.

King was drunk on the night of the incident, he was speeding on the highway, he evaded officers’ attempts to pull him over and he resisted arrest once he pulled his car to a stop on a darkened street corner in Lake View Terrace.

The difficulty with Davies’ reasoning, however, was that the judge also found that King had stopped provoking the officers before the illegal portion of the beating began, more than a minute into the incident. Thus, Davies’ ruling seemed to suggest that King provoked only legal blows--raising the question of how he could then reduce the sentences based on King’s provocation.

Prosecutors hammered on that inconsistency in their sentencing appeal, and also noted that police officers receive special training to deal with provocative suspects.

The appellate panel agreed, finding that King’s actions provoked the initial confrontation with the officers but were not responsible for the blows that Davies determined were illegal.

“By the time Powell struck, and Koon permitted to be struck, those blows for which (the officers) were criminally liable, King no longer presented a danger and was no longer persisting in misconduct,” the opinion states.

By striking down virtually all of Davies’ reasons for lowering the sentence, the appellate court gave him little room for discretion when the issue returns to his courtroom. First, however, the officers can ask the three judges to reconsider their decision. Failing that, they could ask the full 9th Circuit to review the case, and could appeal to the United States Supreme Court.

With each stage, the likelihood of their prevailing becomes more remote, and both sides said Friday that they expect the matter to return to Davies’ court by the end of the year. That will set up an awkward hearing, as Davies may be forced to impose the appellate judges’ wishes even though they are clearly not his own.

“His job is to comply,” Levenson said. “I don’t think he will take it personally. I think he will do what he has to do.”

Times staff writers Bob Pool and Carla Hall contributed to this report.