US Justice Is on Trial in Rodney King Case in Prosecuting the Police Officers a Second Time, the Federal Government Is Combatting a Crisis of Public Confidence

Article excerpt

THE two United States Justice Department lawyers who are trying a civil rights case against four Los Angeles police officers are called prosecutors. In a sense, though, Barry Kowalski and Steven Clymer probably regard themselves as defense lawyers - defending America's system of justice.

For many people, the US justice system itself is in the dock in Los Angeles along with the white officers who beat black motorist Rodney King in March 1991. The acquittal of the officers last April by a Simi Valley, Calif., jury that included no black members shocked and infuriated many Americans, including President Bush, who had seen television broadcasts of a videotape that appeared to show the officers baton-whipping Mr. King as he writhed on the ground.

The verdict ignited three days of rioting, burning, and looting in South Central Los Angeles. Perhaps even worse in the long term, from Washington's standpoint, it created a crisis of public confidence in American justice. Many whites as well as blacks concluded that the US criminal-justice system is still stacked against African-Americans.

In the atmosphere of seething emotions that followed the first King trial and the riots, it would have been almost impossible for the Justice Department not to bring new charges against the police officers, many experts say. "The decision to indict the officers again was a political decision, in a broad sense," says Robert Weisberg, a professor of criminal law at Stanford Law School in Palo Alto, Calif. "You can't separate politics and law."

Yet the issues of justice in the case are complex and cross-grained. Some people think that the second trial of the officers itself is an injustice.

"Though they keep their voices down, I've talked to lots of people who can't understand why these policemen are being tried again after a jury found them innocent," says Prof. Paul Marcus, who teaches criminal law at Marshall-Wythe School of Law, the College of William & Mary, in Williamsburg, Va.

The Fifth Amendment to the US Constitution says that no person "shall ... be subject for the same offense to be twice put in jeopardy of life or limb." Yet the defendants - Sgt. Stacey Koon, officers Laurence Powell and Theodore Briseno, and former officer Timothy Wind - are in effect being tried a second time for the same incident.

But the Supreme Court has long since held that, under the "independent sovereigns" doctrine, accused criminals are not subject to double jeopardy when they are tried under separate laws created by different governmental jurisdictions (either the laws of two different states or, as in this case, a state law and a federal law) - even if the charges are based on identical facts.

The independent-sovereigns doctrine is consistent with the US federal system, but it has implications that are worrisome to some legal thinkers.

"In the early days of the republic, when the federal government wasn't very active in criminal prosecution, it didn't bother people that defendants who were tried by a state for robbery were later tried by the federal government for piracy on the same facts," says Dirk Roggeveen, senior litigation attorney at the Institute for Justice, a public-interest law firm in Washington. Mr. Roggeveen prosecuted police-brutality cases for the Justice Department from 1986 to 1992.

"But the {independent-sovereigns} doctrine is potentially more troubling today, when in a number of areas the federal government has criminal statutes that are almost identical to state laws," Roggeveen says. …