Defense may hinge on Diallo cops' credibility

Sean Carroll, one of the officers who fired at Amadou Diallo 16 times, is expected to be the first defendant to testify Monday. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — This wasn't the best week for the defense in the Amadou Diallo shooting trial.

It may have started with "earwitness" Ida Vincent, who, thanks to a miscalculation by the defense, was able to suggest that officers Sean Carroll, Richard Murphy, Edward McMellon and Kenneth Boss may have engaged in an attempted cover-up in the shooting. It got worse when the only known eyewitness to the shooting, Schrrie Elliott, who was called by one of the defense lawyers, supported prosecutors' claim that Diallo was repeatedly shot when he was down.

But when testimony resumes Monday, the officers' lawyers will get a chance to undo the damage and prove Diallo's shooting was justified — and their success will depend largely on the officers' credibility.

The lawyers had hoped Wednesday that Elliott, their first witness, would corroborate the defense's claims that one of the officers cried, "Gun!" before the shooting started. They had no way of knowing for sure what Elliott was going to say; she had refused prior interview requests by the officers' lawyers. However, she had reportedly told a Bronx grand jury that she heard one of the officers cry "Gun!" before the gunfire erupted.

However, when Elliott took the stand Wednesday, she said she heard someone — possibly an officer or Diallo, — yell "Gun!" She claimed she didn't know for sure who said it. Elliott also told jurors that the officers had their guns drawn before they surrounded the victim. When asked if the officers continued firing at Diallo after he had fallen, Elliot tearfully replied, "Yes."

Still, in interviews with WNBC News, Elliott says Diallo remains standing for much of the shooting. An officer cries, "Gun!" she tells the reporter. Outside the presence of the jury Thursday, the defense confronted Elliott with her inconsistent statements, and she confirmed she had granted the interview with WNBC.

On Monday, this time in front of the jury, attorney Stephen Worth, will confront Elliott again, and he will be able to show jurors the WNBC interview. The defense succeeded in getting Elliot declared a hostile witness, which allows them to cross-examine her. Worth will likely try to destroy her credibility, but that puts the defense in a quandary. Without Elliott, the credibility of the four officers' anticipated testimony becomes crucial. And beginning with Sean Carroll, the officers will testify for the first time about the circumstances surrounding their decision to fire 41 times at Diallo. [None of the officers testified during last year's grand jury hearings.]

According to the defense, Carroll was the officer who triggered the shooting. Carroll apparently was the one who cried, "Gun!" before Diallo was shot. Both he and Edward McMellon fired 16 shots each at Diallo; Boss fired on Diallo five times, Murphy four times. Along with his fellow officers, Carroll will have to explain why Diallo's shooting was a tragic, yet reasonable, accident, not murder. He and his co-defendants will have to explain why they thought Diallo was acting suspiciously and what made them approach the West African immigrant in the first place.

Officers Edward McMellon (center) and Richard Murphy (left) are expected to explain why they approached and fired on Diallo. (Court TV)

The four members of New York's Street Crime Unit were working undercover and driving in an unmarked car when they encountered Diallo. Their defense so far has suggested that they first suspected Diallo when he allegedly 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, because of the darkness, clearly tell whether he was going for a weapon, and they felt threatened. Diallo was unarmed, having only a beeper, a wallet and his keys when he was killed. Carroll will have to explain the lighting conditions and why he thought the object was a gun. [Prosecutors have claimed the light outside the vestibule was bright and the officers could clearly see Diallo.]

Perhaps out of remorse — or perhaps as a defense tactic — Carroll is the only defendant who has commented publicly on the shooting. Four days after Diallo's killing, he told reporters, "I'm deeply sorry for everything that's occurred. .... We're going to cooperate 100 percent." On the first day of jury selection, he again apologized for the shooting, expressing condolences to the Diallo family and hoping that the truth would come out and justice would be served.

Bennett Epstein, one of Carroll's attorneys, indicated in opening statements that his client performed CPR on Diallo after the shooting and begged him not to die. For their defense to succeed, Carroll and the other officers will have to make the jurors see the circumstances through their eyes. They will have to make them understand the apparent fear — and panic — they felt when they approached Diallo in the dimly-lit vestibule of an apartment building in a dangerous section of the Bronx. They will have to make jurors feel the fear they experienced when they thought Diallo was about to shoot them — and the horror they felt when they realized their mistake.

Still, the officers may have a difficult time refuting prosecution claims that they mostly fired on Diallo while he was falling or was down. This issue may mostly be a battle of the prosecution and defense's ballistics and pathology experts. Jurors will have to decide whether they believe the prosecution's coroner, Joseph Cohen, or the defense's own experts, Richard Mason and Martin Fackler.

Prosecutors argue that Diallo was downed quickly and the officers continued firing on the fallen victim. Pathologist Dr. Joseph Cohen, who performed the autopsy on Diallo, told jurors that a bullet that appeared to go up Diallo's leg and lodged near the back of his right knee suggests that he was fired on while he was down.

In addition, Cohen said, the bullet that pieced Diallo's chest may have been one of the first bullets to hit him. Diallo suffered a bullet wound to his chest that pierced his aorta and perforated his spine and spinal cord. According to Cohen, those wounds, particularly to the spine and spinal cord, would have paralyzed and felled Diallo quickly.

But defense pathologist Mason and ballistics expert Fackler disagreed with Cohen, telling jurors that the 16 wounds to Diallo's left side suggest that he was upright for much of the shooting. According to Dr. Mason, most of the bullets travelled from Diallo's left side to his right side. The momentum of the bullets, Mason said, made Diallo's body turn counter-clockwise. As Diallo's body turned, Mason told jurors, he was hit by the bullet that pierced his aorta and damaged his spine and spinal cord. While he did not claim to know the exact order of the injuries, Mason believed that the bullet to the chest was one of the last wounds Diallo suffered — and felled him "late" in the few seconds of the shooting.

Dr. Fackler believed that the chest wound was suffered in the "last half" of the fusillade that struck Diallo. Though he could not determine the exact order of the injuries, he believed that Diallo could not have been lying flat during much of the shooting. According to Fackler, a wound Diallo suffered to the left side of his back travelled across his body and may have caused him to lose the strength in his legs.

The officers may also have to refute the suggestions of an attempted cover-up. A neighbor who lived on the same block as Diallo, Ida Vincent, told jurors she heard voices after the shooting.

"The words were : 'Oh sh--! ... Okay, okay, we're just going to say this,'" Vincent said. Before testimony began Monday, the officers' lawyers had objected to Vincent's testimony about the alleged conversation, requesting that Justice Joseph Teresi bar her from talking about its details because she could not attribute it to any of the defendants. Justice Teresi agreed, instructing Vincent to refer to the conversation — the "voices" — generally, not its details.

But when defense attorney John Patten, referring to the expletive allegedly muttered by one of the officers, asked her during cross-examination what she heard the voices say, he opened the door for the jury to hear about the officers' alleged conversation. And the conversation suggests that the officers consulted with each other and planned their side of the story before investigators arrived.

Besides officers Carroll, McMellon, Boss and Murphy, another anticipated defense witness is psychologist Lynn Cooper. Dr. Cooper is expected to put the officers' testimony in context. She could generally discuss the different ways people react in stressful situations. She is expected to detail the effects of different lighting conditions and how the eyes can play tricks on the brain. Prosecutors tried to get her testimony barred, but Justice Teresi rejected their request. However, he ordered the defense to provide the prosecution with copies of notes Cooper took in her interviews with the four officers.

— Bryan Robinson