The Police and Rodney King: Try, Try Again

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?”