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Courting Danger

March 21, 1993|Susan Estrich | Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988.

When courts are asked to cure the ills of the political process, they are almost guaranteed to fail. When we ask them to dispense not only individual justice but social justice as well, we court bitter disappointment. Judges and juries are no substitutes for responsible politicians; to expect them to be is to invite injustice in the particular case and disaster in the public reaction to it.

That is what is wrong with Rodney G. King civil-rights trial: The court cannotpossibly solve the larger problems it's being asked to address; and the effort to do so is as likely to exacerbate those problems as it is to resolve them. This is also what has been wrong for a decade in abortion-rights litigation. In the wake of the murder of gynecologist David Gunn in Florida, there are renewed efforts to expand the power of federal courts to protect abortion clinics. Certainly, the federal courts may usefully supplement state courts in assuring safe access to clinics. But they can no more conclusively solve the abortion problem in this country than they can deal with the forces that make the King civil-rights trial so explosive.

The retrial of the four Los Angeles Police Department officers is, in the last analysis, less about what happened on a given night in March, 1991, than what has happened in our city, and across the country, for decades: growing tensions between the police and the minority community, escalating violence on all sides, the breakdown of social institutions, poverty and despair in the inner cities. After last year's riots, which were also less about King than about everything else gone wrong in our cities, the easiest response for federal officials was to again ignore the other problems and promise a new prosecution. The courts would step in where the political process had failed.

That is not to say that the four officers did not violate King's civil rights. They may well have, and if they did, they should be punished for it. But punishing them, however deserved, will not address the underlying issues threatening our community; at best, it's a symbolic salve for the deeper wounds. And if the officers are acquitted, there is the real danger that the verdict will be taken as the vindication of everything the prosecutors, in bringing the case, sought to deny: as proof that the justice system is stacked, as affirmation of hopelessness and despair; as another wedge in a divided community. When a case is about more than individual conduct or misconduct, its verdict inevitably has larger consequences.

Juries cannot help but notice this and be affected by it; and the conflict between the judge's charge to the jury, and the community's, may produce injustice in the individual case. There is the danger that an innocent man can be convicted because the larger message is the one jurors want to send, or that a guilty man goes free to send the opposite message about the system.

If the juries in the King and Reginald O. Denny case both hang and cannot reach a decision, as some people expect, it may not be just because the rules of proof are stringent or the issues complicated: Damian (Football) Williams, accused of beating truck driver Denny, may ultimately be as unconvictable as the officers who beat King, because jurors in all these trials will also be evaluating symbolism and making policy as much as judging individual guilt or innocence. How can they avoid it, given what the rest of society has invested in these cases?

The divisions that are supposed to be worked out, and worked through, at the ballot box, in the City Council, in the mayor's office, in the Capitol are instead brought into the jury room. It is not the way criminal cases are supposed to be decided.

There is a noble tradition of courts stepping in where the other branches of government have failed. Problems not dealt with elsewhere have, at least in recent years, exploded in our courts. It was the courts, after all, that ordered an end to official segregation, because even the more enlightened political leadership was too weak and too cowardly to take on bigotry. And it has been the courts, for the last decade, that protected the rights of women to have an abortion while most politicians paid lip service to one side or another and hoped the issue would simply go away. Most of these cases, of course, have been civil trials defining public rights, rather than criminal trials adjudicating individual guilt. Arguably, there's more room for politics in such a public civil suit. But even there, the courts have faced limits.

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