Diallo Jury Charges

John Patten, Sean Carroll's attorney, attempts to show jurors how the officers could have mistaken Amadou Diallo's wallet for a gun. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — Insisting that the shooting death was not a murder, defense lawyers stressed in closing arguments Tuesday that the four officers who killed Amadou Diallo were justified in their decision to approach and fire at the victim.

"They made a mistake, a horrible, tragic mistake," said Sean Carroll's attorney John Patten. "And how did they make that mistake? The flash of the muzzle. The gunfire. The ricocheting bullets. The chaos. The loud noises. The terrible confusion ... they're human beings who make human mistakes. They're not criminals."

Lawyers representing Sean Carroll, Edward McMellon, Kenneth Boss and Richard Murphy capitalized on Albany Justice Joseph Teresi's ruling that jurors would be instructed on legal justification — that they could acquit the officers if jurors believe the defendants were justified in using deadly force to apprehend what they believed was a fleeing suspect [Diallo].

The officers have been on trial for second-degree murder in Diallo's shooting death last February. Diallo was gunned down in a hail of 41 bullets in the vestibule of his Bronx home. Carroll and McMellon fired 16 shots each; Boss fired five, Murphy four.

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

But the defense emphasized that the officers had no reason to think that Diallo did not have a gun. Defense lawyer Patten asked jurors to remember Kevin Gillepsie, a member of the Street Crime Unit who was killed in the line of duty in 1996. In the seconds when the gunfire erupted, Patten and the other defense attorneys stressed, the four officers could only think of two things: protect their partners and protect themselves.

"Gillepsie waited and now he's dead," Patten said. You can't ask an officer to stand there and wait to be blasted."

Patten recalled how Carroll testified that he thought Diallo was acting suspiciously because he kept looking up and down the block. Diallo, Carroll said, 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.

Carroll and McMellon testified, Patten reminded the jury, that they identified themselves and that Diallo did not heed their repeated commands to halt. When he turned his back completely to them and allegedly "darted" into the vestibule after ignoring another command, they thought he was trying to flee. Both Carroll and McMellon remembered Diallo reaching for something in his pocket with his right hand while trying to open the door to his building with his left. According to Patten, when Diallo began to turn around, still pulling at the object in his right pocket, Carroll cried, "Gun!"

Holding Diallo's wallet and a gun side-by-side, Patten attempted to show how the officers could have confused the two items on a dark night. He stressed that it wasn't unreasonable for the officers to fear for their lives and think Diallo had a gun. Diallo, he said, was unreasonable for not heeding the officers' commands and running into the vestibule.

"If only he had stopped and talked to them," Patten said. "If only he told them, 'I live here.' Why didn't he [Diallo] talk to them? Why didn't he stop? If he had, if would have been a simple stop and that would have been the end of it. A simple stop escalated into a series of horrible events. This was not unreasonable behavior on their part; it was unreasonable behavior on Mr. Diallo's part."

Patten acknowledged that the prosecution has said that the 41 shots fired at Diallo were excessive. However, Patten argued, the number of shots illustrated the fear the officers felt at the time. Fear and adrenaline, he stressed, fired the 41 bullets. Patten downplayed the prosecution's suggestions that there was a pause between the volley of shots by telling jurors that the shooting happened in seconds and was "over before it began." He urged jurors that if they find that the officers were justified in their actions, they must acquit the defendants of all charges.

Murphy's lawyer, Richard Culleton, attacked the prosecution's failure to call the only living eyewitness to the shooting, Schrrie Elliott, as its own witness. Elliott was across the street during the incident. When defense lawyers called her as their first witness, they expected her to corroborate claims that one of the officers cried, "Gun!" before the shooting started. Instead, Elliott wound up supporting the prosecution, claiming that the officers repeatedly shot Diallo while he was already down. She also claimed that she did not know who yelled gun before the shots were fired.

However, Elliott was confronted and discredited by interviews with WNBC News and statements given before the FBI and a Bronx grand jury, where she said Diallo remains 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.

Culleton argued in his closings that prosecutors did not call Elliott as their own witness because they knew she would ruin their case. They did not think that her various statements would be admitted at trial. Elliott, Culleton stressed, torpedoes the prosecution's theory that Diallo was shot while he was down and corroborates the defense's version of the shooting.

"Isn't it strange that the prosecution wouldn't call the only other eyewitness to the shooting?" Culleton asked. "It's because they knew she would destroy the foundation of their case against these four officers."

Defense attorney Stephen Worth, who represented Edward McMellon, also focused on the contradictions between Elliott's testimony before the grand jury and her initial trial testimony. He noted that Elliott admitted that she didn't like police officers and indicated that it would have been a "disgrace" if prosecutors had succeeded in "hiding" grand jury testimony from the jury. Worth said that the defense was not afraid to present witnesses because "the truth was always on our side."

James Culleton told jurors that eyewitness Schrrie Elliott torpedoed the prosecution's case. (Court TV)

Culleton argued that Elliott destroyed the "centerpiece" of the prosecution's case — the medical testimony of Dr. Joseph Cohen. Cohen, the pathologist 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 struck 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.

Culleton reminded the jury that the the findings of pathologist Richard Mason disprove Cohen's theories. Culleton noted that Cohen did not examine the alleged crime scene or crime scene photos before drawing his conclusions. Mason told 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, which indicated that Diallo's body turned counter-clockwise during the shooting. As Diallo's body turned, Mason said, 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.

"If he's downed right away, how does he sustain almost all the wounds to his left side?" Culleton asked.

Culleton urged jurors to acquit his client Murphy because it was not unreasonable for him to think that his life — and those of his partners — were in danger when he opened fire. Murphy said he saw McMellon fall off the steps of the vestibule after the shooting started and thought he had been shot. Murphy testified that when he looked in the vestibule, he saw Diallo still standing and thought he was aiming a gun at him. That's when he fired his weapon.

"The only issue here is whether Murphy, seeing what he saw, was reasonable was justified in using deadly physical force before it was about to be used against him," Culleton said.

The officers, Culleton stressed, had a right to approach Diallo; it was their obligation as police officers. He emphasized the testimony of police training expert James Fyfe, who testified that the officers were justified in approaching Diallo because they believed he posed a legitimate threat to the residents of his building. When Diallo, as Fyfe said, did not heed a stop command and ran into the vestibule, the officers had a duty to try to protect the building's residents and try to keep what they perceived as a potentially dangerous situation from escalating.

Defense lawyer Steven Brounstein, who represents Kenneth Boss, urged jurors to place themselves in the officers' shoes, stressing that they did not intend to kill anyone. Diallo's killing, he said, was an accident. Brounstein implored the jury not to "turn a mistake into an injustice."

Prosecutor Eric Warner presents his closing arguments this afternoon. In addition to the counts of second-degree murder and reckless endangerment, jurors will consider first and second degree manslaughter and criminally negligent homicide. If convicted of intentional second-degree murder or second-degree murder with depraved indifference to human life, they face 25 years to life in prison. First-degree manslaughter carries a maximum sentence of 12 1/2 to 25 years; second-degree manslaughter five to 15 years. Punishment for criminally negligent homicide ranges from probation to a maximum of four years.

Jurors will be instructed on Wednesday morning. After that, jury deliberations will begin

— Bryan Robinson