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.)