Diallo Jury Charges

Jurors appear to be considering the charges against the officers accused of murdering Amadou Diallo very carefully. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — Perhaps indicating that they have rejected the murder charges against the four NYPD officers who killed Amadou Diallo, jurors Thursday asked the judge to re-read the definition of a lesser-included charge. However, the jury also shifted its focus from the two officers who fired the most shots at Diallo to the ones who fired the least, requesting a readback of the testimony given by Kenneth Boss and Richard Murphy.

An Albany jury must decide whether officers Sean Carroll, Edward McMellon, Boss and Murphy are guilty of intentional second-degree murder, second-degree murder with depraved indifference or reckless endangerment in Diallo's killing. After about eight hours of deliberations over a two-day period, jurors asked Albany Justice Joseph Teresi to read back the elements of first-degree manslaughter, a lesser included charge for intentional second-degree murder. Earlier, jurors had requested the definitions of both intentional second-degree murder and second-degree murder with depraved indifference.

Because of their requests, there was speculation that the jury had already rejected prosecution claims that the officers intended to kill Diallo. First-degree manslaughter suggests that the officers fired at Diallo with an intent to harm, but not kill, Diallo. In the course of the gunfire, Diallo just happened to be killed. However, jurors may only be carefully considering each charge before they reach a final decision. Besides first-degree manslaughter, jurors may also consider lesser included charges such as second-degree manslaughter and criminally negligent homicide.

Key Testimony

The jury seems to have focused primarily on the actual shooting. At first they seemed to concentrate on the actions of Sean Carroll and Edward McMellon. They requested and received readbacks of the testimony of eyewitness Schrrie Elliott and officers Carroll and McMellon. According to the defense, Carroll and McMellon were the first two officers to approach Diallo before the gunfire erupted. They fired most of the 41 shots at the victim — 16 shots each.

Carroll and McMellon testified that their encounter with Diallo escalated after they identified themselves and the victim refused to heed their command to halt. At the time, the four members of New York's Street Crime Unit were driving an unmarked police car looking for a Bronx serial rapist. As they drove down Wheeler Avenue, Carroll said he thought Diallo was acting suspiciously because he kept looking up and down the block, and repeatedly ducked his head in and out of the vestibule, as if he didn't want to be seen. At that point, Carroll and McMellon decided to approach Diallo.

But, Carroll and McMellon noted, when Diallo did not acknowledge them and "darted" into the vestibule, they thought he was trying to flee them. Both officers said they began to run after him. [Carroll said he thought Diallo may have been a lookout for a push-in robbery.] When Diallo began to turn towards the officers and reach for a black object in his right pocket, Carroll said he believed Diallo had a weapon. Carroll said he cried, "Gun!" Gunfire erupted.

McMellon, the defense says, fell off the steps and Boss and Murphy thought he had been hit.

Still, late Thursday afternoon, jurors zeroed in on the testimony of Boss and Murphy. They fired the least shots at Diallo — Boss fired five times, Murphy four.

Jurors may be mulling over the debate whether there was a pause between the volley of shots or whether Diallo was shot while down. A pause, prosecutors say, suggests that the officers carefully considered each shot fired and therefore intended to kill Diallo. Both Boss and Murphy testified that they heard shots after they fired into the vestibule.

"I fired and then I just jumped off to the left," Boss testified last week. "I heard additional gunshots, and then it stopped."

Murphy testified that he heard other shots being fired during and after the time he personally fired at Diallo. Both he and Boss told jurors that they thought they had only fired the weapon twice. Though admitting that they heard shots after they finished firing their weapons, both Boss and Murphy stressed that the shots happened in matter of mere seconds.

In addition, it is difficult to discern whose shots Boss and Murphy heard. They could have heard each other's shots. Neither knew when each individual officer started and stopped firing. However, Boss and Murphy both recalled Carroll frantically firing his weapon as he ran sideways down the steps. They remembered looking into the vestibule and seeing Diallo upright, holding an object they thought was a gun. Thinking that they were about to be shot, Boss and Murphy told jurors they opened fire.

Schrrie Elliott, however, both supported and discredited the defense's arguments. In grand jury statements and interviews with the FBI, she said Diallo remained standing for much of the shooting. She also said in the statements that one of the officers cried "Gun!' and Diallo had his right hand to his side most of the time.

But Elliott told trial jurors that all four officers left their car at the same time and had their weapons drawn. In addition, Elliott undermined the defense's justification claims by saying that she never saw any of the officers fall off the steps of the vestibule.

Jury Instructions

Jurors must decide whether the officers were justified in their decision to shoot Diallo. The West African street vendor was gunned down in a hail of 41 bullets in the vestibule of his Bronx home last February. While Carroll and McMellon fired 16 shots each, Boss fired five and Murphy four. Jurors must consider the case of each officer separately. If the jurors conclude that an officer was justified in shooting Diallo, the judge told them they must stop deliberating and acquit that officer.

It took Judge Joseph Teresi over three hours to charge the jury Wednesday. He re-read jurors the charge on first-degree manslaughter Thursday. (Court TV)

The officers have claimed that the shooting was a horrible accident, not a murder. Carroll, McMellon, Boss and Murphy, members of New York's Street Crime Unit, all claimed on the stand that the lighting around the vestibule was dim and they thought Diallo was reaching for a gun when they opened fire. Diallo was, in fact, unarmed when he was struck 19 times; he had only his beeper, a wallet and keys.

As they consider the charges, jurors must put themselves in the officers' situation and mull their claims. The jury must decide what, if anything, Diallo did to make the defendants believe that he was about to fire a weapon at them or flee during a possible robbery attempt. In weighing these issues, jurors also must consider each of the officers' prior experiences with robberies and illegal weapons cases. They also must remember that the defendants had a right as officers to approach Diallo and ask him questions.

Jurors must also decide whether it was reasonable, by an average person's standards, for the officers to believe that their lives were in danger. In other words, was it reasonable for the officers to believe that Diallo had a gun and would an average person think the same in the same situation?

Prosecutor's Closings

Prosecutors argue the defendants should be convicted of murder because Diallo did nothing to instigate the gunfire. Diallo, they say, was only standing in front of his home, minding his business and not bothering anyone. Prosecutors dispute the officers' claims that they properly identified themselves to Diallo. Prosecutor Eric Warner argued in his closings that the officers had no reason whatsoever to approach Diallo. He claimed that the officers — particularly Carroll — had Diallo pegged as a potential robber from almost first sight. In their pursuit of the victim, Warner said, they failed to preserve the West African immigrant's life.

The prosecution also suggests that Diallo could have thought the officers, who were not wearing uniforms, were trying to rob him and was trying to give them his wallet when he was gunned down.

If convicted of intentional second-degree murder or second-degree murder with depraved indifference to human life, the officers face up to 25 years to life in prison. First-degree manslaughter carries a maximum sentence of 12 1/2 to 25 years and a minimum of five years.

— Bryan Robinson