Socialist Action /March 2000
Trial of Cops Who Killed Diallo Exposes Fake System
of 'Justice'
By PAUL SIEGEL
With the assistance of DENNIS EDGE
Although the prosecution did not seek to make the case, it was not just
the four cops who gunned down Amadou Diallo in a hail of 41 bullets who
were on trial in Albany this February; it was also the Street Crime Unit
of the New York Police Department and indeed the entire police administration.
The Street Crime Unit was instructed to search for hidden weapons, and
each cop was informally given a quota of seizing at least one gun a month,
creating pressure to engage in arbitrary frisking. Any one who looked suspicious
was to be stopped and searched.
In the Bronx, apparently, just about everyone looked suspicious to these
cops. In 1996 they frisked 27,061 people, more than 22,000 of whom were
not charged with anything. Only 4647 were charged with possessing weapons
or with having committed any other offense, real or contrived.
Moreover, we do not know how many people they frisked without recording
the fact. One of the cops had to admit at the trial that he had not recorded
a frisking he carried out the very night that Diallo was killed.
The likelihood is that, just as it has been revealed that the New Jersey
State Police failed to record many instances of "racial profiling,"
making the heavily disproportionate number of Blacks they apprehended even
higher, so the Street Crime Unit failed to record many instances in which
their "suspicions" proved unjustified.
The members of the Street Crime Unit regarded themselves as cocks of
the walk, as indicated by the slogan "We Own the Night" they proudly
flaunted. It was they who owned the night, not the neighborhood they were
supposedly protecting.
The defense of the four cops was almost entirely based on their own testimony.
How much credence can be given to it? The 1994 Mollen Commission report
on New York Police Department corruption revealed that false testimony in
court is so commonplace that cops cynically refer to it among themselves
not as testifying but as "testilying."
Ida Vincent, a neighbor of Diallo's who was a witness, stated that moments
after the shooting ended she heard some one say, "OK, OK, we just want
to say this." Her statement suggests that the cops were concocting
a defense even then.
Diallo's two roommates told Amy Goodman on Pacifica radio how each of
them was grilled for eight hours by the police, who wanted to know if Diallo
had been engaged in any kind of criminal activity. They were told he had
been found dead, but they were not told that the killing had been done by
the police.
Evidently, the police were seeking to pin something on Diallo as part
of some kind of a cover-up story. Unfortunately for them, however, everyone
who knew Diallo agreed that he was a poor, hard-working immigrant from West
Africa without the remotest connection to crime.
The script that the four cops were finally given by their lawyers, who
were obtained for them by the Patrolmen's Benevolent Association, was crudely
written.
One cop, Sean Carroll, testified that when they approached Diallo, one
of them, Edward McMellon, showed him his badge and said, "Sir, please,
New York Police. We need a word with you." Then, as Diallo dug into
his pocket, McMellon maintained his polite, respectful manner, saying, "Please
show me your hands."
Assuming that he said anything at all before the gunfire (two witnesses
who live close by and heard the shooting said they heard no warning), can
anyone with any degree of sophistication believe this was the way he talked?
This was a playlet so lacking in dramatic verisimilitude that it can only
provoke guffaws.
The cops were supposedly looking for a serial rapist, but the alleged
rapist was last seen in that precinct more than a year before and the neighborhood
had not received any warning about him. Did this hunt on the long-cold trail
really take place or was the alleged rapist someone dug up out of the records
to make the cops look good? A lawyer for one of the cops said that a police
sketch of the alleged rapist resembled Diallo "in a generic way."
Apparently, by "in a generic way" he meant that both the alleged
rapist and Diallo were Black. Sean Carroll had to admit under cross-examination
that the sketch shown in court bore only a "minimal resemblance"
to Diallo.
Each of the four cops told the same tale: Diallo had acted suspiciously,
first taking a "peek out" and then proceeding to "slink back";
the vestibule in which they confronted him was dimly lit; and they therefore
mistook the black wallet he took out of his pocket for a gun. Although they
were four husky men, each of them wearing a bullet-proof vest, and Diallo
was a short, slim man, they feared for their lives and had to shoot to protect
themselves.
However, four prosecution witnesses testified that the lighting in the
vestibule was not at all dim. To be sure, a defense witness, a Street Crime
Unit cop who arrived at the scene shortly after the shooting, joined in
the cop chorus of "it was dimly lit."
However, when he went on to describe in detail Carroll's distraught behavior
as he knelt over Diallo's body, his face red with emotion and his eyes overflowing
with tears, he was asked by the prosecution how he had been able to see
all this if the vestibule was dimly lit. At this point he abruptly changed
his story: it must have been when Carroll was standing in the street that
he saw him so affected.
It was all over in a few seconds, the four testified, and then they woke
to a tragic realization of their awful error. However, three prosecution
witnesses testified that they heard a significant pause in the fusillade,
followed by a resumption of shooting. It was as if the cops, surveying the
damage, decided to make sure that Diallo was finished off.
One of those who testified that he heard a pause was Thomas Bell, a cadet
at the New York Police Academy. Evidently, he had not yet learned about
"testilying" and "the blue wall of silence."
The defense stressed as its strongest evidence, aside from the testimony
of the four cops, the testimony of a highly reluctant and nervous witness,
Scherrie Elliott. Elliott had been called by the defense after she appeared,
her face hidden, on a television program in which she said she had been
on the street, had seen the cops come out of their unmarked car, and had
heard the cry "gun" before the shooting began.
Since this indicated that the four cops had reason to fear for their
lives, they called her to the stand even though they had not questioned
her in advance.
However, when she stated that she saw the cops come out of the car with
their guns drawn and that she did not hear them utter a word of warning
to Diallo, she did more harm to the defense case than she helped it. The
defense attorneys then declared her a "hostile witness" and cross-examined
her, seeking to discredit her by citing her record of imprisonment for drug
possession and pointing to some inconsistencies in her testimony such as
different statements on exactly where she was in the street at the time
of the shooting.
Nevertheless, the defense made selective use of her testimony, accepting
the portion of it that dealt with the cry of "gun" but rejecting
the rest of it. Although they sought to exclude the testimony of Ida Vincent
on the grounds that she could not identify which of the cops had said, "OK,
we just want to say this," and that it was therefore "hearsay,"
they did not apply this standard to Elliott, who stated that she could not
tell who had cried "gun" and that it could have even been Diallo.
Another witness for the defense was Jimmy Fyfe, who had been a member
of the New York City Police Department for 16 years and is now a professor
of criminal justice at Temple University.
Fyfe testified that the four cops were properly following established
police procedure and were acting in accordance with their mission of protecting
life. This opinion was, of course, based on the assumption that their testimony
was truthful.
In a subsequent interview in The New York Times (Feb. 24, 2000), however,
Fyfe stated that, while he was sympathetic to the four cops, the police
department administration was at blame. "He faults the training of
the officers," stated the reporter, "and the 16-round 9-millimeter
guns they carried. 'It was an accident waiting to happen.'"
Yet the district attorneys failed to grill the cops on such matters as
their training in aggressive behavior ("you're guilty until proved
innocent"), the cop culture, and the pervasiveness of racism in the
police department. This enabled the cops to maintain their pose as Boy Scouts
(Officer Carroll said he joined the police department because "I was
always brought up to help people").
The fact that one of the cops, Kenneth Boss, had previously killed a
young Black man was not even brought out.
While the district attorney's office wants to look good by winning cases,
it also wants to have good relations with the police department, upon which
it depends for evidence in almost all of its cases.
On the one occasion that a prosecutor presented a question related to
the police's acculturated mind-set by inquiring about the "We Own the
Night" slogan, Judge Teresi immediately cut him off.
Mark Mishler, a civil-rights lawyer in Albany, said that Teresi is typical
of judges in Albany County in his lack of concern about racism in the justice
system. "This is because," he explained, "Albany County is
a tightly controlled, somewhat monolithic political system in which for
decades judges have been selected primarily on their proven loyalty to the
established political structure." (The New York Times, Dec. 24, 1999.)
Bob Herbert, a Black columnist in The New York Times, has tellingly commented
on the change of venue from the Bronx to Albany decreed by the Appellate
Court, allegedly to insure a trial free of prejudice. "An all-white
panel of five judges, one of whom is a crony of the lawyer for one of the
accused cops," he said, "took the case out of the Bronx (and out
of the hands of a Black judge) and sent it to a place where all the judges
and nearly all of the potential jurors are white."
Herbert presented damning statistics about criminal cases in Albany,
where juries, drawn predominately from middle-class suburbs and small towns
unacquainted with minority problems, are well known by lawyers to accept
the police's viewpoint:
"Of the criminal defendants who go to trial in Albany County, 90
percent are convicted. But when the criminal defendants who go to trial
are police officers, approximately l00 percent are acquitted." (The
New York Times, Dec. 27, 1999.)
Socialist Action /March 2000 |