At Diallo Trial, Justice Is Weighed in Different Measures

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It's become something of a bitter, rhetorical joke: Where would you rather be, as a black man encountering the police — New York City or Los Angeles?

While discussions of race have been aggressively squelched in the courtroom, the troubled legacies of Rodney King and Abner Louima haunt the trial of four white New York City police officers accused of murdering African trinket salesman Amadou Diallo. The police say they mistook Diallo's black wallet, which he apparently proffered in an outstretched hand, for a gun, and believing their lives were in danger, the police fired their weapons 41 times.

The February 1999 shooting sparked heated, celebrity-studded protests and calls for the resignation of New York police commissioner Howard Safir. Get-tough anti-crime methods were under fire and under the microscope; years of mounting tension between cops and minorities came to a head after Diallo's killing — and loud factions demanded action and answers.

Nearly a year after the shooting, unease surrounding the case had barely abated, and the decision was made to move the trial upstate in an attempt to escape the blinding spotlight of New York City's criminal courts. So the press corps and New York City court officers moved to the state capital, Albany, filling area hotels — and imagining themselves facing another O.J.-length trial.

From the first day of proceedings, Judge Joseph Teresi quickly put that fear to rest. Teresi, an affable but extraordinarily strict presence in the courtroom, does not suffer fools — or ringing cell phones, which he confiscates — gladly. He is widely appreciated by reporters covering the trial, in large part because he refuses to entertain the attorneys' urge to hear themselves speak, and while he considers every motion carefully, the trial is moving along at whiplash speed. In a little more than two weeks, the prosecution has presented its entire case and all four accused officers have taken the stand.

As the prosecution's effort wound down, there was a general consensus that all four cops were trapped by evidence that implicated them in the most damning way possible: Gunshots that traveled up Diallo's leg, indicating he was prone when some of the shots were fired; the sheer number of bullets discharged by the police; and an earwitness's testimony that there was a pause in the shooting, suggesting the cops may have had a moment to think before they continued firing. By the time the first cop took the stand, the defense had their work cut out for them.

Officer Sean Carroll's testimony was searing. He outlined the events of the night Diallo died in a calm, sad voice, looking down during most of his time on the witness stand. He testified that he and his companions spotted Diallo from their car as they were cruising one of the Bronx neighborhoods on their beat. To the officers, Diallo looked "suspicious," and as he "darted" into a vestibule, the police decided to question him. They approached him, Carroll said, calling out, "Police! Sir, please stop. We need to ask you a question." Diallo did not stop, he added, and instead headed to the back of the vestibule. There, Carroll said, he reached into his back pocket and pulled out a black object. "Gun!" Carroll screamed, as he fired his weapon at Diallo. Officer Edward McMellon followed suit, and the two cops half-ran, half-fell down the steps of the building.

At this point in his testimony, Carroll broke down and sobbed as he remembered approaching Diallo after the shooting stopped, his heart sinking as he realized Diallo was clutching a black wallet, rather than a gun. Carroll recalled kneeling beside Diallo, stroking his hand, saying over and over, "Please don't die, please don't die. Come on, keep breathing."

Sean Carroll may have done his fellow defendants a disservice when he broke down on the witness stand Monday; his emotional testimony provided a standard of grief that the other officers couldn't quite live up to. On Tuesday, Kenneth Boss and Richard Murphy took the stand, and their composure — at least in comparison to Carroll's near breakdown — made them seem almost icily calm.

Boss, who was driving the unmarked car down Wheeler Avenue the night Diallo was shot, ran through identical accounts of the incident under direct questioning and under cross-examination. His testimony had a smooth, almost scripted cadence to it — it was hard to remember he wasn't acting in a mercilessly rehearsed play. Boss, 28, recounted his partners getting out of the car to question Diallo. Moments later, Boss heard gunshots, and ran toward steps leading to the vestibule, just as McMellon, as Boss put it, "came flying off that top step, landing on the ground. I thought, 'Ed's shot, Ed's shot, I've got to get to him.'" Boss ran toward McMellon, and Carroll backpedaled frantically away from the vestibule. Boss recalls looking up into the vestibule, and seeing Diallo crouched, already shot at this point, his arm extended, pointing a black object toward Boss. "I thought, Oh my God. I'm going to die," Boss said, "So I started firing, and pushed myself sideways, out of the line of fire."

When Boss reached McMellon again, he asked him, "Where are you hit?" McMellon responded, "I'm not hit." Was he surprised by that response, his lawyer asked Boss. "Yes, yes I was." Boss climbed back up to the vestibule, and approached Diallo. "I saw what should have been a gun was a wallet," he said. "It was on the tips of his fingers, outstretched. I yelled, 'Where's the f---ing gun?'" Then, he says, he ran, trying to figure out where he was, to get an address, so he could radio for help. The defense played the tape of the radio transmission, and Boss' voice, while shaky, was intelligible. What were you feeling at that point, his lawyer asked Boss. "Destroyed," the officer responded.

Richard Murphy, 27, took the stand after Boss stepped down, and he climbed into the witness box with the demeanor of a man who wants nothing more than to be somewhere else. Young, nervous and not as sure of himself as Boss, Murphy was the fourth and final cop to testify, and his account seemed almost an afterthought — it served mainly to emphasize his own peripheral role in the shooting: He never entered the vestibule, and his actions were far more reactive and passive than those of his fellow officers.

Despite their relative lack of passion, Boss and Murphy both successfully underscored what their defense hopes will save their case: The officers felt their lives were in immediate danger, and saw, in the form of Diallo's wallet, a gun pointing right at them.

But there are questions, holes in the defense that remained untested after the prosecution's cross-examination of Boss and Murphy. None of the cops has said who fired first, a critical point which, as the trial wears on, remains untouched by the prosecution. And why did Boss and Murphy both escape fierce cross-examination? There were also large discrepancies in their accounts with regard to lighting conditions — which could have serious implications for the defense: Who was able to see what, when? (Boss characterized the light in and around the vestibule as "not substantial," while Murphy said he could see to the inside door in the vestibule from his seat in the parked car.) As one reporter covering the trial muttered to another during a recess, "Boss did better under cross than he did under direct." This extraordinarily docile prosecution may be due in part to Judge Teresi's stern, preemptive warnings against taking an aggressive tone with the witnesses, but at this point the district attorney's office seems strangely lacking in prosecutorial fire.

This notable lack of zeal could be a serious lapse on the part of the prosecutors or part of a larger plan unknowable to everyone watching the trial; or, as TIME columnist Jack White speculates, it could be a calculated risk designed to fell the most vulnerable, and culpable, of the four officers. "It may be the prosecution feels the case appears to be strongest against Carroll," says White. And with that in mind, the logic continues, it doesn't make sense to waste prosecutorial ammunition on the three other cops, who may have amounted to mere accessories. Prosecutors know that treating the other defendants with the same vigor as that used against Carroll could serve to mute the case against their most promising possibility of conviction. And since the district attorney's office is desperate for a conviction — any conviction — out of this case, they may figure that for their purposes, Carroll needs to stand alone.

That argument seemed to be born out by an agreement Wednesday that will enable the jury to more exactly delineate the separate scope of each defendant's guilt; the defense and prosecution agreed to allow the jury to consider lesser charges, including criminally negligent homicide and manslaughter, when considering each officer's case. The officers have all been charged with second-degree murder. This proposal, which was greeted with relief by the officers' families and general approval from the legal community, leaves the door wide open for Carroll to take the brunt of the blame while allowing the other three officers to escape with little more than harsh reprimands. On Thursday, Judge Teresi granted the request.

Legal experts posit that the prosecution knew, from the very beginning, they wouldn't get the murder convictions they asked for — while Diallo's death was bloody, it was not deliberate. It was the horrible by-product of the frayed psyches of young cops. And although the jury is likely to agree that Diallo's parents deserve justice for their son's killing, jurors will likely embrace the opportunity to acknowledge the varying degrees of guilt among the four police officers.

It was, after all, Carroll, the eldest cop in the car, who was the first to approach Diallo, the first to falsely identify the victim's wallet as a gun, and, arguably, the force that precipitated the barrage of bullets that killed Diallo. A tragic mistake was made, and the political storm surrounding this trial virtually guarantees that someone will have to shoulder the penalty. Sobbing on the stand Monday, Carroll was the embodiment of anguish — and, the prosecution may contend, of the bulk of the guilt.


The Albany Times Union
Full Coverage of the Diallo Trial