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- LAW, Page 43Try, Try Again
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- Four L.A. cops are charged with violating Rodney King's civil
- rights -- but convicting them won't be easy
-
- By RICHARD N. OSTLING -- With reporting by Sally B. Donnelly/Los
- Angeles and Elaine Shannon/Washington
-
-
- The mobs that torched and looted South Central Los
- Angeles last April reacted to the verdict with primal rage. Few
- Americans condoned the violence, but many shared the rioters'
- shock and amazement at the trial's outcome. After all, the
- grainy videotape of Rodney King's 81-second beating at the hands
- of L.A. cops looked like a clear-cut case of police brutality
- against an unarmed and helpless citizen. A flawed state
- prosecution, a shrewd defense and a white suburban venue had
- conspired to produce the stunning outcome: acquittals for four
- officers. When federal authorities indicted the four last week
- on civil rights charges, it was widely believed that the
- defendants would not get off so easily the second time around.
-
- That assumption may be ill-founded. Legal experts quickly
- dismissed defense claims of double jeopardy -- the impermissible
- prosecution of a person twice for the same offense -- because
- jurisdiction in federal civil rights charges is distinct from
- that of the state. Yet in proving that the officers violated
- King's civil rights, the feds must clear the hurdle that tripped
- up the state prosecutors: convincing a jury that the police used
- excessive force. "The issue is ultimately the same," says
- Professor Erwin Chemerinsky of the University of Southern
- California Law Center. "Was it reasonable or excessive force?
- If the jury finds that by community standards it was excessive
- force, it will convict. If the case can be made that it was
- reasonable force in that situation, then they will acquit."
-
- In the first trial, the traditional bias favoring the
- police was bolstered by a controversial shift of venue from the
- city to suburban Simi Valley, a change that resulted in the
- selection of a conservative jury with no black members. The
- defense will not enjoy this advantage in the current case, which
- could be heard as early as October: the federal jury pool is
- drawn from the entire metropolitan area, and will probably
- include some black and Hispanic members with a different
- perspective on the trustworthiness of the police. Also, the jury
- may feel pressure not to acquit the officers for fear of
- sparking a new, possibly angrier wave of rioting.
-
- The prosecutors, however, face a hurdle they did not have
- in the first trial: they must prove that the defendants
- specifically intended to deprive King of his civil rights. The
- Reconstruction-era statutes under which the officers have been
- charged were used during the civil rights movement of the 1960s
- to help federal authorities convict police miscreants who could
- not be found guilty in Southern courts. The statutes had earlier
- been challenged for being too vague, which prompted the Supreme
- Court to sharpen their focus by requiring prosecutors to
- demonstrate a "specific intent" to deprive someone of a
- federally guaranteed right.
-
- Intent requires "a higher burden of proof" beyond merely
- establishing that excessive force was used, observes Drew S.
- Days III, of the Yale law school, who headed the civil rights
- division in the Carter Administration's Justice Department.
- Proving specific intent is "difficult, but not impossible," says
- Mary Frances Berry, a member of the U.S. Civil Rights
- Commission. Since 1988, the Justice Department has filed 99
- civil rights cases involving official misconduct. It has won
- convictions in three-quarters of them.
-
- The notion of intent, though hard to prove, opens up
- avenues that were not available to the state prosecutors.
- Federal attorneys will be able to introduce evidence showing the
- police were predisposed to react with excessive force -- not
- just toward minorities but also toward anyone under arrest. In
- contrast to the earlier criminal case, moreover, federal
- prosecutors can examine the records of the defendants in other
- arrests, dig into their personnel files and even probe their
- conversations for evidence of prejudicial attitudes or a
- propensity toward brutality.
-
- Federal officials can also call some witnesses who did not
- testify in state court, including King himself. The state
- attorneys were criticized for not putting King under oath to
- describe his beating. Federal prosecutors are almost certain to
- call him, but his testimony could boomerang against them.
- King's arrest record, his powerful build, his confused and
- halting speech could all be used to bolster the police version
- of events. Indeed, one defense attorney, Michael Stone, intends
- to call King. Says Stone: "Too many people believe Rodney King's
- testimony would have changed the outcome of the first trial. I
- want them to see that it would not." Whether King's account
- helps or hurts the federal case, his appearance is sure to
- conjure up the specter of the conflagration last April and of
- his own poignant appeal: "Can we all get along?"
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