Judge asked to consider leniency in sentencing of officers in King beating

August 03, 1993|By Los Angeles Times

LOS ANGELES -- A lawyer who helped draft federal sentencing guidelines has told U.S. District Judge John G. Davies that he should consider leniency when he sentences Officer Laurence M. Powell and Sgt. Stacey C. Koon today because the guidelines never anticipated a case like the beating of Rodney G. King.

"Because this case is highly unusual and differs greatly from the cases considered by the Commission in promulgating the guidelines, it clearly calls for departure from the guidelines," David A. Lombardero, former chief counsel to the sentencing commission, said in a letter sent to Judge Davies Friday and obtained yesterday by the Los Angeles Times.

Although a number of experts have commented on the sentencing of the officers who beat Mr. King, Mr. Lombardero brings special credentials. He served as counsel to the sentencing commission in the mid-1980s and was a principal drafter and editor of the guidelines.

It is unclear what impact, if any, Mr. Lombardero's letter will have on the judge. Nevertheless, his reading of the guidelines was welcomed by defense attorneys, who said it reinforced their arguments that prosecutors are overreaching in their requests for long prison terms.

"I was so pleased with it that the first thing I did was call [Mr. Powell] and fax it to him," said Michael P. Stone, Mr. Powell's lawyer.

Ira Salzman, who represents Mr. Koon, said he too was pleased by Mr. Lombardero's findings, which echo many of the points Mr. Salzman has raised about the sentencing.

Prosecutors have argued that Mr. Powell should be sentenced to between seven and nine years -- just short of the 10-year legal maximum for violating the federal civil rights law. Mr. Koon, they argue, should serve nine to 10 years. Mr. Lombardero does not recommend any particular sentence but in an interview called the prosecution's recommendations "grossly excessive."

The two Los Angeles Police officers were convicted in April on federal charges of violating Mr. King's civil rights when Mr. King was stopped for traffic violations and subsequently beaten during an arrest. The March 3, 1991, incident was videotaped by a witness and was broadcast worldwide.

In 1992, the acquittals of Powell, Koon and two other officers -- Theodore J. Briseno and Timothy J. Wind, who were also charged in the beating -- after a state trial sparked the worst

urban rioting this century.

Mr. Briseno and Mr. Wind were acquitted of the federal charges in the second trial.

Other legal analysts generally endorse the prosecution's analysis of the sentencing guidelines, but have suggested that the sentences may be somewhat shorter than what the government attorneys are seeking. Most of those experts predict sentences for both officers in the four-to-six year range.

Even Mr. Lombardero said his analysis of the guidelines, as written, produced a sentence of five to six years. But he believes the drafters of the guidelines did not anticipate a case such as this -- in which there is no proof that the officers acted with racial malice and in which even prosecutors acknowledge that the officers were entitled to use some force in their arrest of Mr. King.

"The sample of civil rights cases used by the Commission in formulating the guidelines was quite small, and it is unlikely to have included even one case similar to this one," Mr. Lombardero wrote.

Assistant U.S. Attorney Steven D. Clymer, one of two lead prosecutors in the case, declined to comment on Mr. Lombardero's analysis.

Under the system of federal sentencing guidelines, judges first must determine the underlying offense -- prosecutors in this case say it is an aggravated assault, while defense attorneys contend it is a minor assault. Judge Davies could tack on time for the violation of Mr. King's rights and then decide whether to enhance the sentences. Once a range is established, Judge Davies could then elect to depart downward from the range, as defense attorneys have suggested.

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