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Justice in the Eyes of Those Who Hand It Out : Trial: When choosing between law and order, judges lean toward order, which is why Koon and Powell got 30 months for beating King.

August 08, 1993|Charles L. Lindner | Charles L. Lindner, an attorney in Santa Monica, is past president of the Los Angeles Criminal Courts Bar Assn.

The best way to explain why Sgt. Stacey C. Koon and Officer Lawrence M. Powell received only 30 months for violating Rodney G. King's civil rights is to tell a story.

Years ago, an attorney and his wife were driving on Sunset Boulevard in his Rolls-Royce. He had earned the car by being one of the best trial lawyers in Los Angeles. Suddenly, he saw flashing red lights in his rearview mirror. He immediately pulled over.

Two officers approached and ordered the lawyer out of his car. There is some dispute about what the officers actually said, but "You n----- pimp!" was among their screams. His wife was similarly humiliated. Soon, both were proned out against the hood of the Rolls.

Slowly, following the officers' orders, the lawyer opened his wallet to reveal the shiny gold badge that identified him as the assistant district attorney of Los Angeles County. Ooops!

The cops saw what they wanted to see, not what was. Very few white Rolls-Royce owners are mistakenly identified as pimps.

The exercise of power is a matter of perception and, more important, who gets to do the perceiving. Thirty months is nothing more than the judicial system saying "Ooops!" to King.

The people who get to do the perceiving are those whom Alexis De Tocqueville called "America's natural aristocracy"--lawyers. Not just any old lawyers, but well-heeled, well-connected lawyers. Lawyers who not only had the juice to become judges but the juice to become federal judges.

Remember the gods in Greek mythology, hurling their lightning bolts at whoever displeased them? The crafters of the Judiciary Act of 1790 probably had them in mind when they created the federal district courts.

Still, what might have been the outcome had Koon and Powell stood before U.S. District Judges Terry J. Hatter or Consuelo Marshall, both of whom are a judicial rarity? Would the two African-American judges have perceived the King incident as "good cops" who lost control? Or would they think, "If this videotape came from South Africa, the U.S. State Department would file a diplomatic protest and Congress would order sanctions?" Would they be sympathetic and grant an extraordinary "downward departure" from sentencing guidelines? Or would the sentencing elevator head in an "upward departure" at express speed?

A gentleman identified as Juror Number 11 in the federal civil-rights trial said it best. "These men didn't break just any law. This wasn't a traffic violation. They broke the most fundamental law we have, the Constitution." Juror Number 11 is a true believer. He believes the 14th Amendment guaranteeing due process and equal protection of the law has some meaning.

After more than two decades of hearing the drumbeat of "law and order," the public has yet to understand that the two concepts are often mutually antagonistic. Given a choice between law and order, most judges go with order.

For the power elite, which includes their police instruments, "order" is far more important than "law." And the message sent by the court in sentencing Koon and Powell to the legal minimum was instantly understood in the ghetto and barrio: "We will punish the police for getting caught hurting you. But we will not punish them too hard, because we may need them to hurt you again at some later date."

For some reason, downward departures in sentencing always seem to occur when a non-black harmed a black. Korean grocer Soon Ja Du got probation for her videotaped killing of black teen-ager Latasha Harlins. The defense claimed Latasha copped an "attitude" and asked for it. King clearly had an "attitude" but did he "ask for it?"

The goggles worn by those with power do not see all colors or classes equally. In the King-beating case, the goggles were Blue Blockers, far more popular with the power elite than Black Blockers or Brown Blockers. Green Blockers are also popular, however, which is why a bank robber will do more time than Charles H. Keating Jr., who injured far more people and stole far more money. While on the subject of Keating, take a quick look at the perceived double-jeopardy justification used by Judge John G. Davies to downwardly depart from the federal guidelines when sentencing Koon and Powell.

There was not a blip of an outcry when Keating was tried in federal court after having been convicted for the same conduct in California state court. While the savings-and-loan president did not receive a downward departure when sentenced, his time was made concurrent. He had a good set of Green Blockers.

The ultimate tragedy of the downward departure is the effect it might have on the Reginald O. Denny-beating trial getting under way across the street from where Koon and Powell were sentenced. In anticipation of what is to come, it should be emphasized that Judge John Ouderkirk is a fair and honest man. He is trying his hardest to control a case that may be now beyond control. Courthouse rumors have it that the answers to the prospective jury questionnaires have gotten very ugly, making a different kind of downward departure. What may well have been a slam-dunk winner for the prosecution could well turn out to be a hung jury, because the otherwise powerless people drawn from the street to sit as jurors own that most unfashionable set of goggles, Black Blockers.

Color may be important to interior designers, but it sure isn't the right way to run a justice system.

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