Amadou Diallo, The Tragedy, The Challenge

Author’s note: The following commentary was written shortly after the verdict was rendered in Albany, New York, in the trial of four officers charged in the wrongful killing of Amadou Diallo. Since that time both the Justice Department (as I predicted it would) and the Internal Affairs division of the New York Police Department (NYPD), have found no reason to pursue additional charges against the officers involved. The Peace And Justice Foundation and our affiliate, the National Association for Police Accountability, have maintained since before the outcome of the Albany trial, that the most effective recourse of concerned citizens would be to pressure federal authorities to bring appropriate, and long overdue sanctions, against the entire NYPD and city of New York, for patterns and practices going back many, many years. Until this happens, nothing will change!

A Brief Summary of the Case

In the early hours of February 4, 1999, Amadou Diallo was spotted by four members of the NYPD’s Street Crimes Unit, standing in front of the building where he resided, appearing, in the words of his assailants, “suspicious.” The arguments on one side accuse the plainclothes officers of charging up the steps in the direction of Diallo without identifying themselves as police; while arguments on the other side accuse Diallo of refusing to follow instructions given, and, subsequent to this, pulling out an object that appeared to be a gun (an object that would later prove to be his wallet). This is where the murkiness begins; on which side of these two competing accounts do we find the truth?

There are many questions which beg for an answer. Did Diallo pull out his wallet because he suspected that the four men approaching were police, and thus, he intended to provide identification to show who he was (and that he had a right to be standing in front of the building where he lived), or did he react out of fear that he was about to be robbed by a group of bandits? This we will never know. What is known is that Amadou Diallo was killed in a hail of 41 shots, 19 of which struck his body even after he had crumpled to the ground; and that the police officers responsible for this all to familiar grizzly execution (within the concrete jungle of New York) would justify their actions on the basis of a perception that their lives were at risk.

The trial for the four officers was moved 150 miles away to Albany, New York, because of “protests and pretrial publicity.” State law justifying the use of force was at the heart of the officers’ defense. New York State Supreme Court Justice Joseph Teresi had ruled that the jurors would be able to consider a section of state law that allows police to use physical force in self defense (even when the “self-defense” emanates from a perceived threat), and he admonished the jurors that he did not want them to, “speculate or use their own beliefs and standards,” in their deliberations. In a nutshell, Judge Teresi made rulings which demonstrated (in our opinion) a clear pro-police bias.

The jury of four blacks and eight whites heard from 11 witnesses for the prosecution, and seven for the defense (which included the four officers on trial). The most serious charge, 2nd degree murder, carried a minimum penalty of 15 years and a maximum of 25 years to life. Lessor charges were requested by the prosecution midway into the nine days of testimony – without objection from the defense – with Judge Teresi allowing for their inclusion (without comment). The charge with the least amount of gravity, criminally negligent homicide (failing to perceive the risk of death), carried a minimum penalty of probation, and a maximum penalty of one and a half to four years imprisonment.

With a less than vigorous effort by state prosecutors, the jury found the officers innocent on all 24 counts.

Costly Mistakes in the Pursuit of “Justice”

It is this writer’s opinion (based upon both observation and experience) that the odds were stacked against a successful prosecution from the start, and that these odds were greatly magnified by: (a) the absence of an independent prosecutor, and (b) well meaning but critical mistakes on the part of Diallo supporters.

The decision to move the trial to Albany, New York, insured the seating of a jury that would be biased in favor of the officers on trial, irrespective of its racial makeup; and a local prosecutor, as opposed to an independent prosecutor, would almost insure a less than vigorous prosecution – because of the relationship between police and prosecutors that strikes many observers as being a conflict of interest in such cases.

A poor judgment, in my humble opinion, made early on by state prosecutors was the charges themselves. (Second degree murder should never have been on the table in the first place.) When the prosecutor requested the inclusion of lessor charges for the jury’s consideration, midway into the trial, I believe this fertilized the seed of doubt that was already planted in the minds of the jurors (surely Allah know best). And while the issue of race loomed over the entire case like a pink elephant from beginning to end, the prosecution assiduously avoided it like the plague. Was this an exercise in self-censorship, or was this one of the closed door rulings of the presiding judge?

As for the supporters of the Diallo family, I sincerely believe that a critical mistake was made in deciding to hold protest rallies outside the courthouse in Albany. This was not a sequestered jury. To hold rallies, from which one could hear some of the most extreme and emotional rhetoric, could only serve to reinforce a bunker mentality among the jurors, many of whom, no doubt, already identified with the officers on trial. I believe a far more effective demonstration would have been a consistent mass presence of silent, disciplined observers at the proceedings. The collective heart of the supporters may have been in the right place, but the strategy crafted by organizers of the demonstrations was terribly wrong.

The Call for a federal indictment of the NYPD

In the wake of the not guilty verdict, Rev. Al Sharpton and other front-line supporters of the Diallo family in New York, have vowed to bring pressure upon the U.S. Department of Justice for a federal indictment of all four officers involved in Diallo’s death; a tall order indeed. Such prosecutions are rare. It is easier to convict in state prosecution cases, for state law does not require proof that the defendant(s) specifically intended to deprive the victim of a constitutional right.

Most federal police brutality prosecutions are brought under Title 18 U.S.C., Section 242. This statute makes it an offense to interfere with an inhabitant civil rights under the color of law. The most pertinent part of the statute reads as follows: “Whoever, under the color of law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States…shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results…shall be fined under this title or imprisoned not more than ten years, or both; and if death results…shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”

Criminal charges in state court typically are for assault, battery, manslaughter or murder; whereas federal criminal charges are brought under civil rights statutes – and again, prosecutors must meet the criminal burden of proof beyond a reasonable doubt that the defendant intended to deprive the victim of a constitutional right. The federal probe is typically long and drawn out, running on average between two to three years.

It is this commentator’s opinion (again based upon observation and experience) that the human and material resources generated around this particular case would be better spent if channeled into another extremely important track: a federal suit against the NYPD (and/or the city of New York) for an indisputable and well-documented pattern of civil rights violations under the color of law, going back many years, and resulting in a countless number of cases involving beatings, torture, wrongful imprisonment, and homicide. Such an indictment would: (a) open the door to genuine police reform in the nation’s largest city, (b) have a positive ripple effect on other troubled police departments around the country, and (c) serve as a lasting and fitting testament to the memory of Amadou Diallo, and the countless other victims of naked brutality “under the color of law.”