A Tale of Two Trials--and the Fate of a City : Justice: In the King and Denny cases, the law is being asked to deal with race, something it doesn’t do well. Two judges on hot seats.

Two white judges are presiding over two racially charged trials in Los Angeles. There are at least 2 billion eyewitnesses to the alleged crimes, courtesy of the electronic looking glass. Virtually all the eyewitnesses think the cases involve racial attacks, in one case a group of whites beating a black man, in the other, a group of blacks pummeling a white man. There are only two places where this observation is not true--in the courtrooms of Judges John G. Davies and John W. Ouderkirk.

Say hello to the Cheshire Cat, Alice.

The law does not deal well with race. Indeed, it deals quite badly with race. Since the charges in both cases do not require proof of specific racial hatred or animus, the judges have made valiant attempts to keep the core emotional issue completely out of the trial proceedings.

Davies, for example, correctly kept Sgt. Stacy C. Koon’s “Mandingo” allusions out of the Rodney G. King civil-rights trial. Ouderkirk, in the Reginald O. Denny beating trial, is considering a defense request to discover data on whether the District Attorney systemically charges black defendants more severely than whites for acts similar in nature.

Judges do not want to look into the racial abyss because they are afraid they will be consumed by it. Ironically, as any engineer could tell them, the only way across the abyss is to look at it, measure it and build a bridge over it so that the community can follow. Looking into the abyss is better and safer than pretending it isn’t there--if you are looking at it, you have not fallen into . . . yet.

Ouderkirk has repeatedly urged the parties to plea-bargain. There are enormous pressures pulling at everyone involved in the Denny case not to bargain. In many respects, the right plea bargain is the sanest way out for all concerned.

First, Dist. Atty. Gil Garcetti is faced with an overcharging nightmare created by his predecessor. Ira Reiner helped implant the impression that the entire L.A. riot was the work of four young men. Garcetti moved quickly--and correctly--to inform the public that he was considering a plea bargain because it is one rational scenario that solves an extremely complex problem. Of course, the 64,000-dollar question is, “How much time?”

Plea bargaining is how the criminal-justice system gets through the day. The approximately 120 judges assigned to criminal courts cannot try more than a fraction of the 40,000 felony cases filed each year in Los Angeles. For at least two generations, non-trial case settlements have averaged 96%-97% of all cases filed. A 1% drop in settlements effectively creates judicial gridlock.

All this is important because what happens in the Denny trial reverberates in the King civil-rights trial, and vice versa. We have watched the videotape of the Los Angeles Police Department officers thumping King. We have also seen the tape of Denny’s beating. Beyond this similarity, the two cases are about a similar as basketball and ice fishing.

The government has always had a better case against the four officers in the civil-rights trial than it has been willing to admit. The cops are leaning heavily on the “thin blue line” barbarian-at-the-gates defense: a) Rodney should have stayed down on the ground; b) Rodney should have stayed on the ground, and c) Rodney is lucky they didn’t shoot him. There is also a large unspoken element of “Rodney is coming to your house, and we’re the only people who can stop him,” the racial issue none of the lawyers addresses directly, preferring three-sided carom shots to hit the same point. Legally, this argument is called the “reasonable use of force to subdue a dangerous suspect” defense.

The one time a defense attorney went for the racial jugular was an attempt to recapitulate Daryl M. Gates’ maladroit remark that black people were more likely to die from carotid chokeholds because they aren’t “normal.” To Davies’ credit, he slammed the door.

Presumably, the Denny defendants’ first line of defense is “identity”--the prosecution must prove the identity of the perpetrators beyond a reasonable doubt. But from press reports, it seems every aerial photo has been enhanced by the same people who work for the CIA.

After identity, the best defense is a “gut” defense. To a large segment of the minority community, the LAPD is an occupying paramilitary force. Who the Denny defendants want on the jury is every black or Latino who has been shoved up against a wall, proned out, patted down, stopped for no reason or otherwise hassled by the police. Ironically, what the prosecution wants this time is the jury pool from Simi Valley (although they would never admit it).

So why plea-bargain? Because there is some prudent betting that the King civil-rights jury will not reach a unanimous verdict, the Denny jury will convict--and the city will face new rioting. To induce the three remaining Denny defendants to plead guilty, Garcetti must offer a “hard number”--a fixed or determinate sentence such a eight or 12 years or whatever for each defendant. Ouderkirk must nudge the negotiations along.

The world is watching. Sadly, this is where the media do an injustice to the justice system. To paraphrase Marshall McLuhan, the media distorts the message.

What lends the justice system legitimacy is its its aloofness, its mystery, ceremony and rituals. The intrusion of television cameras into California’s state courtrooms means that the prosecutor and defendants must not just contend with what they should do, but also with what their audience expects them to do. They are defendants with a constituency. “Did he do it?” easily can become a secondary consideration to holding down an ideological point created by a group whom the defendant has never met, or a prosecutor’s need for votes. We are lucky that the Denny trial comes at the beginning of Garcetti’s term.

Another problem preventing settlement is the “Law of Wrong Choices.” Basically, a criminal client becomes a client because of wrong choices. For instance, robbing a bank with lots of television cameras is a wrong choice. Under the Law of Wrong Choices, counsel often have no control over their clients. Some defenders refer to this situation as a “lemming run.” The client may well prefer what he perceives as legal self-immolation to knuckling under to the system by plea bargaining.

Psychologically, the Denny defendants may think white men beating a black man senseless is the equivalent of black men beating a white man senseless. Whatever the street sentiment, the analogy does not hold inside the courtroom.

Ouderkirk’s plea-bargain suggestions urge a balance that require Garcetti to lighten up on the possible sentence and requires the defendants to forgo indulging themselves in the belief that they are martyrs to unfair white justice.