RULING LIKELY TO KEEP KOON, POWELL FREE.

Byline: Jaxon Van Derbeken and Steve Getzug Daily News Staff Writers

The U.S. Supreme Court has set aside an appeals court ruling that would have forced former LAPD Officers Stacey Koon and Laurence Powell to return to prison to serve longer terms in connection with the Rodney King beating.

In a decision expected to have profound impact on the federal criminal justice system, the high court ruled that a federal judge could, with good cause, use wider discretion in modifying prison terms beyond factors outlined in strict sentencing guidelines.

Justices generally supported three of five factors cited by U.S. District Judge John Davies in sentencing Koon and Powell to 30 months in federal prison. The high court left it to Davies to reconsider the sentences.

Legal observers say they don't expect that Koon and Powell, who were freed from federal custody in December, will go back to prison. And attorneys for the two men barely concealed their optimism Thursday.

``I believe we've had a tremendous victory'' said attorney Ira Salzman, who represented Koon. ``But the case is still going forward and we will have to present our arguments to Judge Davies.''

``The human factor comes into this thing, the specter of unfairness,'' added attorney Michael Stone, who represented Powell at both the federal and state trials.

In comments to reporters outside his father's Santa Clarita home, Powell offered muted optimism to the decision but said it doesn't bring an end to the case.

``I just want to hear the words that I don't have to go back to prison and I can get on with my life. And that will make me happy,'' he said.

Government prosecutors who had sought 72-month prison terms for Koon and Powell declined comment.

``Our position is that since the case is going back for resentencing, we will not comment on a case that is still before the district court,'' said Assistant U.S. Attorney Barry Kowalski.

The Supreme Court decision Thursday forces Los Angeles to relive another chapter in a bruising legal saga that began with the videotaped beating of King in Lake View Terrace on March 3, 1991.

George Holliday's tape of white officers beating an African-American increased racial tensions, forced sweeping changes in the Los Angeles Police Department, and plunged the city into the worst urban rioting since the Civil War after a Simi Valley jury acquitted the four officers in 1992.

The 1993 federal convictions of Koon and Powell provided a tenuous salve.

``This is the case that will never end,'' said Loyola Law School Professor Laurie Levenson. ``It had such an incredible effect on our city and it is still nagging at us. This could stir the pot up again.''

When Davies sentenced the two officers in 1993, he could have sent both men to prison for between 70 and 87 months.

Instead, Davies deviated downward, ruling in large part that the conduct of King, who led police on a high-speed chase, refused to obey commands and then resisted arrest, ``contributed significantly'' to provoking the officers' behavior.

Davies also cited four more factors in mitigation: that the officers were susceptible to abuse in prison; that they would lose their jobs; that they were unlikely to commit new crimes; and that they faced state and federal prosecutions.

Some community leaders decried the sentence as lenient. And the government appealed, saying Davies erred in deviating from the guidelines.

The 9th U.S. Circuit Court of Appeals ruled that Davies should not have departed from the guidelines, which were authorized in 1984 for federal courts by Congress and devised by a politically appointed commission.

Thursday, the Supreme Court said three of Davies' reasons were legally sound, and that the sentencing judge - not a reviewing court - must decide what the sentence in the volatile case should be.

``When a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors,'' Justice Anthony M. Kennedy wrote for the court.

In its ruling, portions of which were challenged by some justices, the court said Davies did not abuse his discretion in relying on the susceptibility of the officers in prison and the burdens posed by their successive prosecutions in state and federal courts.

But the court found that Davies' use of employment and recidivism as factors to justify a downward departure were invalid because those factors already were considered when the Sentencing Commission formulated the guidelines.

Despite the removal of two factors, legal experts say Davies likely would come up with the same prison terms the second time around.

``I would be surprised if a different sentencing determination would be made by Judge Davies,'' said UCLA law Professor Peter Arenella.

William Kopeny, who argued Powell's case before the high court, said Davies could impose an additional three to 21 months but wasn't likely to in light of the factors sustained by the high court.

He noted, for example, that Koon was targeted for attack during his stay at a halfway house in Riverside County.

``It would be cruel and unusual to return a man to prison under these circumstances,'' Kopeny said. ``We have new evidence their lives were actually in danger.''

Koon and Powell are high-profile defendants, and they are now at the center of what legal experts say is the most significant Supreme Court test to date over federal judges' discretion under the sentencing guidelines.

The guidelines have been criticized by many judges who believe they limit their ability to consider the specifics of each crime, and by criminal-defense lawyers who say the guidelines result in prison terms that are too harsh.

Kopeny called the ruling historic and said other criminal defendants will benefit by the decision.

``The Supreme Court took the straitjacket off of judges on sentencing,'' Kopeny said. ``It will benefit, far and away, criminal defendants who are opposing police, rather than police officers.

``If the judge believes the guidelines are too harsh, he has the power to lower the sentence - criminal attorneys who hate the police will love this decision,'' he said.

Attorney Harland Braun, whose client, Officer Ted Briseno, was acquitted in the federal case, agreed that the sentence likely will remain in place. He said the decision marks a sea change in sentencing.

``The court is beginning to reassert its authority in providing more discretion to judges,'' he said. ``This is a very important decision.''

That the ruling would magnify debate on how far judges can go in deviating from the formal guidelines did not go unnoticed in the opinion.

``The goal of the sentencing guidelines is, of course, to reduce unjustified disparities and so reach towards the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice. In this respect, the guidelines provide uniformity, predictability, and a degree of detachment lacking in our earlier system,'' the opinion said.

But, it noted further, ``It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.''

CAPTION(S):

2 Photos

Photo: (1) Stacey Koon

His attorney claims victory

(2) L aurence Powell

Says case not over