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9th Circuit Judges Reject Appeal of Koon, Powell Resentencing : Courts: Officers convicted in the King beating are likely to get stiffer terms. But a wide spectrum of justices dissent, saying original decision was proper.

TIMES LEGAL AFFAIRS WRITER

Lawyers for police officers convicted of beating Rodney G. King were rebuffed Thursday in their appeal of a decision that makes it likely the men will get longer prison sentences.

The decision by the U.S. 9th Circuit Court of Appeals in San Francisco means that Los Angeles federal Judge John G. Davies will be required to resentence former Sgt. Stacey C. Koon and former Officer Laurence M. Powell later this year, unless the U.S. Supreme Court takes up the case.

In 1993, Davies departed dramatically from federal sentencing guidelines in cutting proposed sentences for the officers from at least 70 months to 30 months.

But in August, a three-judge panel of the 9th Circuit ruled that Davies improperly departed from the 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 they underwent had cast a “specter of unfairness” across the federal case, and that their illegal conduct was provoked by King’s actions.

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The panel sent the case back to Davies for resentencing consistent with its decision. Because the panel struck down virtually all of Davies’ reasons for lowering the sentences, it appears to give him little room for discretion.

On Thursday, a majority of 9th Circuit judges rejected without comment defense lawyers’ request for a rehearing by an 11-judge panel, commonly known as an en banc hearing.

But a diverse group of nine of the 9th Circuit’s 26 judges, ranging from staunch liberals to archconservatives, issued a dissent, saying that a rehearing should have been granted. The judges said they believed the three-judge panel seriously erred in vacating the sentencing ordered by Davies.

“The District Court acted well within its discretion in sentencing the defendants to prison terms below the guidelines range,” Appellate Judge Stephen Reinhardt said, writing for the dissenters. “Neither law nor justice requires that they be set aside or that any longer prison term be imposed,” wrote Reinhardt, perhaps the most liberal 9th Circuit judge.

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Koon’s defense lawyer, Ira M. Salzman, said he was very disappointed by Thursday’s decision. Salzman said he and Michael P. Stone, Powell’s attorney, will ask the U.S. Supreme Court to review the matter. Stone was unavailable for comment.

Steven D. Clymer, one of the federal prosecutors in the case who is now a Cornell University law professor, said the prosecutors felt the August ruling was correct and agreed with Thursday’s decision not to grant a rehearing.

Reinhardt was joined in dissent by two other liberal judges appointed by Democratic presidents and half a dozen judges appointed by Republican presidents, ranging from moderates to ultraconservatives. It is highly unusual for so many judges to sign a dissent to a 9th Circuit order declining to grant a rehearing.

In order for Koon and Powell to have gotten a rehearing, a majority of the 9th Circuit’s 26 judges would have had to vote yes. The precise vote is not known because 9th Circuit rules make such votes secret.

In his opinion, Reinhardt lambasted the secrecy rule: “By these rules, we immunize our individual actions from public scrutiny. In my opinion we are wrong to do so. The public has a right to know how all public officials, including judges, conduct the public’s business.”


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