A reluctant witness frustrated defense attorney Stephen Worth's attempts to prove Amadou Diallo remained standing for much of the shooting. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — A reluctant defense witness told jurors Wednesday that the officers on trial for Amadou Diallo's alleged murder had their guns drawn before they approached the victim and continued firing at him after he had fallen.

Lawyers for officers Sean Carroll, Richard Murphy, Edward McMellon and Kenneth Boss are trying to prove that Diallo's shooting death last February was a tragic accident, not murder. The four members of New York's Street Crime Unit were working undercover and driving in an unmarked car when they encountered Diallo.

The officers' defense claims that Diallo was acting suspiciously and ducked his head back into the vestibule when he saw them. The officers claim they identified themselves and that Diallo did not heed their command to halt. When he reached for something, the defense says, officers could not clearly tell whether he was going for a weapon, and they felt threatened. Diallo was then fired upon; 19 of the 41 bullets fired hit the West African immigrant. He was unarmed, having only a beeper, a wallet and his keys when he was killed.

But Schrrie Elliott, who is the only known eyewitness to the shooting, did little to help the officers' case as their defense began Wednesday. She even may have hurt their case.

The defense had hoped that Elliott would corroborate the defense's claims that one of the officers cried, "Gun!" before the gunfire started. The lawyers had hoped she would support the officers' claims that they reasonably feared for their lives when they fired on Diallo. But things did not quite work out that way.

Elliott was diagonally across the street and walking home at the time of the shooting. Attorney Stephen Worth, who represents Officer McMellon, established at the beginning of his direct examination of his witness that Elliott refused to speak to the defense during its investigation and did not want to testify. She was only there because she had been subpoenaed. Elliott had refused interviews with the defense before Wednesday but had met with the prosecution. She had asked that her face not be shown on camera because she feared reprisals.

A tearful Elliott agreed that she heard someone — perhaps Diallo or one of the officers — cry "Gun!" before the shooting. [The defense says that Carroll cried gun.] But that is where the agreement between Elliott and the defense ended. Visibly agitating Worth — and perhaps stunning the rest of the defense — Elliott did not agree that Diallo, as the defense claims, was standing during the shooting. She told jurors that Diallo fell almost immediately after being shot.

Worth confronted Elliott over an interview she gave to WNBC where she allegedly claimed that she could not believe how long Diallo remained standing during the shooting. Elliott, however, denied making the statement.

Worth tried to impeach his own witness and get the videotape of the interview admitted as evidence. But neither he nor his co-counsel were able to convince Justice Joseph Teresi that they had provided the proper foundation to bring in the tape. The judge held that the tape and related transcripts had not been properly authenticated.

The prosecution seemed to turn Elliott into its own witness. Under cross-examination by prosecutor Don Levin, Elliott agreed that she saw the officers emerge from their car with their guns already out and drawn. According to Elliott, the vestibule where Diallo stood was well-lit — the light in the entrance and hallway were on. She could see him standing in the vestibule. Elliott also agreed that the officers surrounded Diallo in a semicircle, shot into the vestibule and continued to shoot when he was down.

"Did anyone, Ms. Elliott, say to Mr. Diallo, 'Stop! Police! Freeze'" Levin asked.

"No," Elliott responded.

"Are you saying you heard someone say, 'Gun!' and nothing else was said before the shooting?"

"Yes."

"And that they fired into the vestibule?"

"Yes."

"And that Mr. Diallo went down quickly and that they continued to fire at him even when he was down?"

"Yes."

On re-direct, Worth pointed out that the prosecution did not call Elliott during their case, even though she seems to be the only eyewitness other than the officers.

Before Elliott's testimony, the defense began attempting to prove Diallo's death was an accident, not a murder. Another "earwitness" told jurors that he remembered hearing voices and people running before gunfire erupted. However, Bernardo Jaivier, who lived across the street from Diallo, could not hear what the voices said. Jaivier also noted a pause in the series of 41 shots fired at the victim. But his testimony suggests that the length of the pause was much less than the prosecution has indicated. The defense also hopes that Jaivier's references to the voices indicate that the officers perhaps identified themselves to Diallo before gunfire erupted.

Jaivier said that he saw four men, the officers, outside after the shooting and claimed they seemed confused and nervous.

The first defense witness Sgt. Peter Schumacher was called to undermine the previous testimony of prosecution "earwitnesses" Debbie Rivera and Thomas Bell. Schumacher interviewed both during the investigation of the shooting. Rivera, a former neighbor of Diallo, testified last week that she was awake during the shooting and heard a pause between the barrage of bullets.

Sgt. Peter Schumacher refuted the testimony of previous witnesses Debbie Rivera and Thomas Bell. (Court TV)

But Schumacher told jurors that when he interviewed Rivera the night after the incident, she told him that she was awakened by the sound of approximately 30 shots. Rivera, he said, claimed they were fired consecutively. When she looked out the window, Schumacher recalled Rivera saying, she observed five, not four, officers in the street outside. She claimed they appeared to be upset and shaking.

Bell also told jurors that he heard a pause between the shots. On Monday, he testified that he noticed a man fitting Diallo's description while on his way home. They noticed each other, he said, and they made eye contact, but he didn't feel intimidated by the man presumed to be Diallo. Bell also saw this man go into Diallo's building.

Schumacher, however, recalled Bell saying that he "watched" Diallo and that he became "nervous" when he saw Diallo duck into the vestibule at 1157 Wheeler Avenue. The officer said he interpreted Bell's claims of watching Diallo as meaning that he "kept a watchful eye" on him. The prosecution pointed out that there is a difference between Schumacher's interpretation and what Bell said.

The defense also focused on Diallo's alleged suspicious behavior before the shooting. One witness, Luis Agosto, testified that Diallo kept ducking in and out of the vestibule and that made Agosto "keep an eye on him." Diallo's behavior, Agosto said, made him feel suspicious. In addition, Agusto said that the light in the entrance to Diallo's building was not bright but rather dim.

Diallo's landlord, Deenauth Bassit, told jurors the light outside the vestibule was off the night of the killing. That light, he claimed, was kept off most of the time. He said he had to turn the light on after the shooting that night.

However, during cross-examination, the prosecution pointed out that Bassit had told investigators the opposite in previous statements. In a statement five days after the shooting, Bassit told investigators the light outside the vestibule was on that night and kept on most of the time. Bassit also conceded that he did not hear anyone yell, "Stop!" "Show me your hands!" or "Police!" before the shooting. He buttressed prior testimony that there was a pause between the volley of bullets.

The controversy over the sole eyewitness's testimony was not resolved in Wednesday's testimony. Schrrie Elliott may be recalled to the stand by the defense Thursday. The defense had wanted Elliot declared a hostile or adverse witness, a request Justice Teresi initially denied, then granted. However, though Justice Teresi is giving the defense a chance to challenge Elliott's testimony, he barred the lawyers from asking her any questions about the interview with WNBC.

— Bryan Robinson