Try, Try Again

JACOB SULLUM

March 02, 1993|By JACOB SULLUM

Nine months after the riots sparked by the Rodney King trial, 333 prospective jurors arrived at the federal courthouse in Los Angeles, where they were confronted by a 53-page questionnaire. Among other things, it asked:

* What was your personal reaction to the verdicts in the state court trial?

* What do you feel caused the civil unrest and riots that occurred in Los Angeles in April and May of 1992?

* Do you fear the prospect of social unrest following a verdict in this case?

* If you serve as a juror in this case, how would you anticipate being treated by your family, friends and acquaintances if the defendants are acquitted?

To ask these questions is to answer them. It's clear what the federal trial of the four police officers who beat Rodney King is all about: correcting a terrible error. When it acquitted the cops on all but one charge, the Simi Valley jury got it wrong. The job of the federal jury is to get it right.

Preventing chaos in L.A. is one goal of getting it right. Last May, it seemed a federal prosecution would help restore calm. Now it's just asking for more trouble. Instead of letting the matter drop,the feds have created a new set of dangerous expectations.

Another aim of the second trial is ''restoring faith in the criminal-justice system.'' If you've read the Constitution or watched a little Perry Mason, this may sound fishy to you. The Fifth Amendment, after all, says ''nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.''

Supporters of the federal prosecution -- that is, all decent, right-thinking people -- argue that it does not constitute double jeopardy because the offense is not the same. In the first trial, the police officers were charged with assault. In the second trial, they are charged with willfully violating King's constitutional rights to be free from unreasonable force, to be safe while in custody and not to be punished without a trial.

Very clever. But the underlying acts are the same. If the police officers did not assault King -- if they did not knowingly use excessive force in restraining him -- they cannot be guilty of the civil-rights violations. To convict, the federal jury has to reject the findings of the state jury. That is the whole point of this exercise.

In rare cases, federal prosecution after acquittal in a state trial may be appropriate. Congress intended the law under which the L.A. cops were charged as a safeguard against corrupt law enforcement (especially in the Old South). If local authorities rig a trial to produce an acquittal, the feds can and should step in. Double jeopardy arguably doesn't apply to such cases because a real trial never took place.

But no one has alleged that corrupt officials obstructed justice in the Rodney King case. It was the result, not the process, that troubled those who clamored for a second trial. And Roger Parloff's careful analysis in the June 1992 American Lawyer shows that the verdicts, right or wrong, were reasonable given the evidence, and certainly not bizarre enough to indicate that the jury acted in bad faith.

In another sense, of course the trial was rigged. The defendants were presumed innocent, and the prosecution had to prove its case beyond a reasonable doubt. In the abstract, Americans are proud of a legal system that protects the accused against the power of the state. They readily agree with Voltaire: ''It is better to risk saving a guilty man than to condemn an innocent one.'' As long as it doesn't mean letting the bad guys off the hook.

Jacob Sullum is associate editor of Reason magazine.

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