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<text id=92TT1041> <title> May 11, 1992: Anatomy of an Acquittal </title> <history> TIME--The Weekly Newsmagazine--1992 May 11, 1992 L.A.:"Can We All Get Along?" </history> <article> <source>Time Magazine</source> <hdr> COVER STORIES, Page 30 LOS ANGELES RIOTS Anatomy of an Acquittal </hdr><body> Prosecutors thought the videotape of the brutal beating guaranteed a conviction. Instead it provided a reason for the jury to find four policemen not guilty. By RICHARD LACAYO -- Reported by Sally B. Donnelly/Los Angeles It seemed impossible that any jury could acquit the four officers who were accused of beating Rodney King. How could anyone discount the brutal vision of King being clubbed and kicked on videotape for 81 unforgettable seconds? It seemed like an open-and-shut case. In a sense it was, but not in the way most people expected. Most of the jurors appear to have made up their mind quickly that the officers were innocent. That left much of the rest of the country wondering how the evidence of their own eyes could not have been sufficient for the jury in Simi Valley, Calif. But this trial hinged on matters both narrower and broader than that shocking bit of videotape. The narrow ones were fine points of law that jurors must decide upon, such as what constitutes reasonable doubt and just how much force is permitted under the procedural guidelines of the Los Angeles police department. The broader matter was race, the inescapable factor in any case in which a jury that has no black members must choose between the police and a black man accused of a crime. In the view of many legal experts in California, the outcome may have been decided as soon as the trial venue was moved to the dry hills of Simi Valley, an overwhelmingly white, middle-class community of 100,000, 35 miles northwest of downtown Los Angeles. In July a state appeals court accepted defense arguments that the barrage of publicity and political fallout surrounding the case would make it impossible for a fair trial to be held in Los Angeles County. The move was surprising, though not without precedent. In a typical year, about 10 felony trials are moved in California. But it's been more than a decade since one was moved out of Los Angeles, where even such celebrity monsters as Charles Manson and the Hillside Strangler were tried locally. And there was no place in California -- or the nation for that matter -- where people had not seen and reacted to the King videotape. Los Angeles Superior Court Judge Stanley Weisberg, who would preside at the trial, was offered a choice of three venues by the state judicial counsel. He rejected Orange County, a redoubt of white conservatives just south of L.A., because its court calendar was too crowded. The prosecution pushed for a location in the San Francisco Bay Area: Alameda County, home to Oakland, where the population, 15% African American, would be a near reflection of Los Angeles, which is 10% black. But Weisberg also rejected that option, citing the cost and inconvenience for all sides of a venue 387 miles from L.A. That left Ventura County, and the town of Simi Valley, which is just 2% black. A large part of the local citizenry moved there to escape Los Angeles and all it represents to them: gangs, crime, high housing prices and minorities. The place is home to a large number of police and fire fighters. The Ronald Reagan Presidential Library is there. Even if Simi Valley could not be counted on to yield an old-fashioned, Alabama-style jury, any panel chosen from there was more likely to identify with the four white officers who had held the nightsticks than with the one black man writhing on the ground. Faced with what was probably to be an unsympathetic audience, it may not have been an advantage to Terry White, the soft-spoken, studious-looking lead prosecutor, that he was black. (Alan S. Yochelson, his co-prosecutor, was white.) Though the prosecutors objected strongly when it was first suggested that the trial be moved to Simi Valley, the pair acknowledged that they were powerless to reverse the judge's decision once it had been made. But they could take comfort from the fact that juries in Ventura County had decided against the police in three of the five police-brutality cases conducted there since 1986. And besides -- the prosecution team had the videotape. But the defense would have the jury. Ten members were white -- six men and four women. Of the two non-whites, both women, one was Hispanic, one Filipino. Ranging in age from 38 to 65, the panel included a maintenance worker, a printer, a retired teacher and a retired real estate broker. Three of the jurors had worked as security guards or patrol officers in the U.S. military. Three others were members of the National Rifle Association. One was the brother of a retired L.A. police sergeant. Even granting the difficulty there might be in winning over such a group, the prosecutors made some serious errors in building their case. In 29 days of testimony, the prosecution presented only six witnesses, including a passenger from King's speeding car and a husband-wife team of officers from the California Highway Patrol who were present at the beating. In contrast, the defense presented 49 witnesses, almost all of whom were police officers or experts on law enforcement who claimed that the defendants' conduct fell within L.A.P.D. guidelines. White and Yochelson also failed to call any of 30 civilian witnesses to the beating whose testimony might have contradicted that of the defendants. In what may have been the prosecutors' biggest blunder, they chose not to let King take the stand. Having him testify might have exposed King, who once served time for robbery, to damaging cross-examination. But it would also have compelled the jurors to come face to face with the obscure figure in the videotape. And King could have countered the defense attorneys' contention that he had not been badly injured by the beating. One of the lawyers went so far as to argue that King was not even hit in the head, a claim that he supported with photographs taken of King soon after the beating that showed bruises on his body but not on his head. Though King suffered a broken leg and several broken facial bones, some jurors said later that they accepted the defense argument that he was not badly hurt. The prosecutors did elicit useful testimony from one of the accused officers, Theodore Briseno, but it is not clear that they gained much advantage from it. Five years ago, Briseno was suspended without pay for 66 days, after a police board of rights found him guilty on four counts of using excessive force. But before the trial, he broke ranks with his three fellow officers. On the stand he testified that they were "out of control" on the night of the beating. He claimed that he had tried to restrain them. Lies, countered two other officers, who said Briseno had told them himself that there was no misconduct involved. Briseno's credibility was undermined by the fact that on the tape he too is seen delivering what appears to be one kick to King at a key moment in the assault. It comes about midway through the episode, at a point when King appears to have been lying still, facedown on the ground, for several seconds. Briseno's apparent kick appears to prompt King into groggy motion again, which sets off another flurry of pounding from Officers Laurence Powell and Timothy Wind. Briseno's lawyer, John Barnett, contended that his client had not kicked King but merely put his foot on the man's neck to hold him down so the beating would stop. With race the ever present issue in the case -- King has claimed that he was taunted throughout the beating with racial slurs -- the prosecution did little to bring home its significance to the jury. Prosecutor White did tell the court that just 20 minutes before the King beating, Officer Powell had sent a computer message to another patrol car saying an incident that evening involving a domestic dispute at the home of a black family was "right out of Gorillas in the Mist." That's "a racial statement," White pointed out. "You have to wonder what was his motive when he was beating Mr. King." But overall, the defense made no more than faint attempts to show that racial hatred could have inspired the officers to impermissible brutality. That issue will now be central to the civil rights investigation the Justice Department is still pursuing. "The prosecution was methodical, almost tedious in its presentation," says Laurie Levenson, a law professor at Loyola Law School. "The defense came out swinging from the first, painting King as a bad and dangerous man." On the order of Judge Weisberg, defense attorneys were not permitted to tell the jury about King's criminal record, including his imprisonment for robbery. But they were able to portray King as a large, aggressive man who was legally drunk. Much was made of the officers' claim that they thought King had gained unusual strength and tolerance to pain because, they believed, he was under the influence of angel dust -- the hallucinogenic drug pcp. Subsequent tests showed no trace of the drug in King's system. All of that was in keeping with one part of the defense strategy -- to make the jurors empathize with the dangers police officers face. The defense contended that the officers did not dare simply to seize King and apply the cuffs for fear that the suspect might grab one of their guns. "I tried to put the jurors in the shoes of the police officers," boasts Michael Stone, Powell's attorney. "We got the jurors to look at the case not from the eye of the camera but from the eyes of the officers." That's one more reason why the prosecution probably erred in its decision not to call King to the stand. The second part of the defense strategy was to persuade jurors that in any event, everything that appeared on the tape was within the flexible guidelines for police procedure in subduing a suspect. The L.A.P.D.'S policy in that area has it both ways. It permits "minimum reasonable force" if "other reasonable alternatives have been exhausted or would clearly be ineffective under the circumstances." It adds that "this does not mean that an officer has to wait until a suspect attacks." Nightsticks cannot be used "to gain compliance to verbal commands absent combative or aggressive actions by the suspect." According to the defense, that meant it was all right to keep beating King until he assumed a "compliance posture" by lying still and putting his hands on his head. The lawyers pressed the point that police work -- and police -- can sometimes be brutal, within the allowed limits. Expert witnesses stood before jurors to demonstrate the "power swings" and "chops" with heavy batons that are taught to police cadets. "What are you trained to do with your batons?" a defense lawyer asked his client on the stand. "To break bones" was the answer. Attorney Paul DePasquale, who represented defendant Officer Wind, summed up the general defense line when he told the court that his client "dealt with the situation as it unfolded in accordance with his experience and training. His situation was one of fear and frustration, and not pleasure in inflicting injuries." All of this ate away at the strength of the prosecution's strongest card, the videotape. Though it may seem incontrovertible, video evidence has been discounted by juries in other trials. A South Carolina jury last month acquitted a man accused of raping his wife, even though he taped the assault. Videos in less widely publicized police-brutality cases have also failed to persuade juries. In the King beating case, continual repetition of the video may have dulled its initial horror for the jury. And by presenting the tape in slow motion, separated into split-second frames, the defense fractured a seamless sequence of apparent brutality into a hundred moments of uncertain meaning. Attorney Stone contended that King can be seen attempting to rise at several points. "In the hundredths of a second between this photograph and this one," Stone said of one display, "Mr. King is again coming up off the ground, and he charges Officer Powell." The defense attorneys also got jurors to believe that the prostrate King, not the skull-drumming officers, was "controlling the incident." He could have ended the beating, they contended, by simply adopting a compliant posture. Insisting on the stand that King repeatedly refused to lie facedown on the ground, Sergeant Stacey Koon contended that King was attempting to "either escape or attack my officers." Koon defended his part of the assault on King -- which included more than half a dozen blows to the head from Koon alone -- as "managed and controlled use of force." By the time the trial was over, the jurors would have the defense line all but committed to memory. "King just continued to fight," one later told the Los Angeles Times. "So the police department had no alternative. He was obviously a dangerous person, massive size and threatening actions . . . Mr. King was controlling the whole show with his actions." Completing her recital of defense positions, she added, "They're policemen, they're not angels. They're out there to do a low-down, dirty job." Another juror said she had her doubts about the officers' innocence but was stymied by the precise terms of the instructions to the jury. "I believe there was excessive use of force, but under the law as it was explained to us we had to identify specific `hits' that would show specific use of force. It had to be beyond a reasonable doubt, and I just couldn't do that." Some legal experts say that white jurors are often inclined to give police the benefit of the doubt in cases involving brutality, particularly if the victim is black. "I've had cases where black clients have been beaten up by the police," says John Powell, national legal director of the A.C.L.U. "To be candid, I have soft-pedaled that ((in court)). If you have an all-white jury, most white people are not inclined to believe that the police beat blacks if unprovoked." In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence -- to put it aside in making their decision -- which American law allows. "The jury wanted to acquit, despite the fact that the evidence was very clear," says Jerome Skolnick, a law professor at the University of California, Berkeley. "They could not see putting those nice, white policemen in jail." Attorney John Burton is representing Bryant Allen, one of the other men riding in the car that night with Rodney King. Burton contends that the jury is not so much to blame as the prosecutors from the office of a district attorney who must normally work with the police in convicting criminals. "That alliance is more important than any conviction," he insists. "From the way it was tried, I can't believe that the D.A.'s office actually wanted a conviction in this case." The acquittal cannot have provided much satisfaction to many who watched the beating of King or the televised rioting that broke out once it was announced. The four officers still face the possibility of federal charges for violating King's civil rights. And the videotape will go on to haunt the nation with its scene of what still looks like sanctioned sadism. For most Americans, no legal argument about the stages of police procedure can explain away those images, though legal argument may have worked for 12 jurors in Simi Valley who were disposed to heed it. To most Americans, black and white, in this case good lawyering triumphed over justice itself. </body></article> </text>