U.S. Supreme Court Weighs Koon, Powell Prison Terms

The two former Los Angeles police officers who are trying to avoid more prison time for the beating of motorist Rodney G. King found an unlikely ally Tuesday at the Supreme Court in Justice Stephen G. Breyer, a moderate-liberal appointed by President Clinton.

Breyer, joined by several justices, commented during the oral argument of the case that trial judges should have flexibility to set the proper sentence, especially in unusual cases. The higher courts, he said, “owe deference” to the expertise of the judge who tries a case.

His comments were welcome news for former Sgt. Stacey C. Koon and former Officer Laurence M. Powell. They are asking the high court to uphold the 30-month prison term given them by U.S. District Judge John G. Davies, rather than the six- to seven-year term called for by U.S. sentencing guidelines.

A onetime legal advisor to Sen. Edward M. Kennedy (D-Mass.) and a Boston-based judge, Breyer is considered by many to be the architect of the sentencing guidelines, a controversial 1980s-era effort to make the punishments imposed for federal crimes uniform.

The guidelines, which are a part of the law, work like a tax table. They list types of crimes and possible aggravating factors, such as the use of gun, and allow a judge to pinpoint a proper sentence for an individual defendant. The idea was that a first-time bank robber who used a gun should get the same prison term whether he committed his crime in Chicago or Chattanooga, Tenn.

But Breyer, like many liberal-leaning jurists, has had second thoughts and has recently argued that judges deserve more discretion--rather than less--in imposing sentence, particularly in a case that does not fit the standard mold.

“There are 700 district court judges and they have thousands of cases. . . . My belief is that we ought to give consideration to [their] expertise,” Breyer told a Clinton administration attorney arguing for the stiffer prison term. “We don’t want to substitute for their judgment.”

Koon’s attorney Theodore B. Olson told the justices that he believes the case “involves just the kind of fact-intensive decision that a trial judge is ideally suited to make.”

In 1992, a jury in Simi Valley acquitted the officers of using excessive force in the videotaped beating of King on March, 2, 1991. That verdict set off two days of rioting in Los Angeles.

The next year, a federal court jury in Los Angeles convicted Koon and Powell of violating King’s civil rights.

Two justices noted that it is rare for a police officer to be convicted of a criminal offense for violating a suspect’s civil rights. Usually, such cases result in civil damage verdicts that are paid by municipalities.

“This is an unusual case,” Breyer said. “Doesn’t the court of appeals owe deference to that [judge’s] decision?”

Chief Justice William H. Rehnquist pointed out that Congress, in approving the sentencing guidelines, said that higher courts “should give due deference to the [judge’s] application of the guidelines to the facts.”

“What on earth does that language mean?” Rehnquist asked the Clinton administration lawyer who contended that the Supreme Court should overrule Davies.

Assistant U.S. Solicitor Gen. Michael R. Dreeben replied that the judge relied on “impermissible factors” to avoid giving the officers the longer sentences.

For example, Davies said, the “victim’s misconduct” contributed greatly to the police beating. King had led the officers on a high-speed chase in the San Fernando Valley and refused to lie on the ground when he stepped from his car. The judge also said that a “specter of unfairness” hung over the case because the officers were tried twice for the same crime.

But the Justice Department lawyer said that judges had no authority to ignore the punishment set by the guidelines.

“This is a wholesale invitation to the kind of disparities that the sentencing guidelines were meant to correct,” he said.

The two former officers have served the term set by Davies and are free on parole.

Last year a badly divided U.S. 9th Circuit Court of Appeals ruled that Davies erred by ignoring the guidelines and imposing the lighter sentences. Koon and Powell appealed to the Supreme Court. If the high court upholds that decision, they probably would go back to prison for several years.

That prospect seemed less likely given the tenor of Tuesday’s argument.

Koon and Powell attended the oral arguments but sat far apart in the tourist section at the back of the courtroom. Afterward, they left the court without pausing in front of television cameras set up outside.

In an interview with The Times later, Powell expressed optimism over what he called “the case that wouldn’t die.”

“We have a real good chance, I think, but I’m not a lawyer,” said Powell, who was dressed in a blue pin-striped suit and was joined by his father.

Powell is scheduled to speak Thursday at a fund-raising dinner here in his behalf. In a five-page letter to potential contributors last week, Powell said that he was broke and needed money to pay his air fare to Washington.

The $75-per-person dinner and reception is sponsored by the Virginia-based Legal Affairs Council. Its sponsors include former U.S Atty. Gen. Edwin Meese III and Los Angeles County Supervisor Mike Antonovich.

But Powell and Koon will have to wait months to hear whether they will have to return to prison. The high court will meet privately to vote on the cases (Koon vs. United States, 94-1664, and Powell vs. United States, 94-8842) but will not likely hand down a written decision until June.

In other actions, the court:

* Agreed to decide whether the government can force cable operators to continue carrying small, local broadcast channels. The cable companies say they have a free-speech right to refuse, but Congress disagrees.

The case (Turner Broadcasting vs. Federal Communications Commission, 95-992), came to the court once before but it was not finally decided. The justices will try again in the fall.

* Refused to intervene in a Michigan “right to die” case involving a paralyzed man who can’t speak, but can nod his head (Martin vs. Martin, 95-821). His wife, acting on his behalf, has asked that a feeding tube be removed but state courts said there is not “clear and convincing evidence” that he would wish to die.