Diallo Jury Charges

Justice Joseph Teresi had to dismiss one juror because she talked about the Diallo case outside of court. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — Told that they can acquit the defendants of all charges if they believe the officers acted in self defense, jurors are now deciding the fate of the four policemen accused of murder in Amadou Diallo's shooting death.

An Albany jury must decide whether officers Sean Carroll, Edward McMellon, Kenneth Boss and Richard Murphy are guilty of intentional second-degree murder, second-degree murder with depraved indifference and reckless endangerment in Diallo's killing. The jury worked approximately 5 1/2 hours before having dinner and deciding to recess for the day. In their first day of deliberations, jurors asked for readbacks of the testimony of defendants Carroll and McMellon and the only other living eyewitness to the shooting, Schrrie Elliott. [Jurors focused on the events that started after Carroll and McMellon left their unmarked car to approach Diallo and ended with their trip to the hospital following the shooting.]

Before jury instructions began Wednesday, Albany Justice Joseph Teresi announced that Juror #4 — a white woman who had been held up at gunpoint in North Carolina six years ago — had been removed from the panel because she had talked about the case with someone outside court. She was replaced by alternate Juror #1, a white male.

During deliberations, 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. Carroll and McMellon fired 16 shots each; Boss fired five, 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.

The officers have claimed that the shooting was a horrible — yet reasonable — 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.

The defense suggested that Diallo, not the officers, set in motion the events that led to his killing. 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. Boss and Murphy both recalled Carroll frantically firing his weapon as he ran sideways down the steps. Boss and Murphy 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.

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. Though they know the officers were mistaken when they thought Diallo had a gun, jurors must consider whether the defendants acted reasonably. Jurors have to answer these questions: 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?

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 and in their pursuit of the victim, they failed to preserve the West African immigrant's life.

Warner also suggested that Diallo could have thought the officers were trying to rob him and was trying to give them his wallet when he was gunned down.

In addition to the counts of second-degree murder and reckless endangerment, jurors will consider first and second degree manslaughter and criminally negligent homicide. The punishment for these charges ranges between probation and life in prison. 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.

— Bryan Robinson