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 prosecution's murder charges, jurors Thursday asked the judge to re-read the definitions of all the lesser-included charges against the four NYPD officers who killed Amadou Diallo.

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 or reckless endangerment in Diallo's killing. After about eight hours of deliberations over a two-day period, jurors Thursday 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.

Then, when jurors had deliberated for approximately 15 hours, they asked the judge Thursday night to once again define second-degree manslaughter and criminally negligent homicide, two lesser included charges of second-degree murder with depraved indifference. Because of their requests, there was speculation that the jury had 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. Second-degree manslaughter suggests the officers consciously disregarded a "substantial and unjustifiable risk" and recklessly caused Diallo's death. With criminally negligent homicide, jurors would find that the defendants failed to perceive such a risk. However, jurors may only be carefully considering each charge before they reach a final decision.

Now that jurors re-heard the definitions of all the lesser included charges, that means they are considering counts that may yield no jail time for the officers. Second-degree manslaughter and criminally negligent homicide carry minimum punishments of probation.

Key Testimony

At first jurors seemed to concentrate on the actions of Sean Carroll and Edward McMellon, requesting readbacks of their testimony addressing what happened from the time the two officers left their car until they were taken to the hospital. Jurors also requested and received readbacks of the testimony of eyewitness Schrrie Elliott. But ultimately jurors shifted their focus to Kenneth Boss and Richard Murphy and requested readbacks of their testimony about what happened before and during the shooting.

The four plainclothes officers were patrolling the Bronx in an unmarked car in search of a serial Bronx rapist when they encountered Diallo. Carroll and McMellon said they left the car to question Diallo about behavior Carroll considered suspicious. None of the officers was able to tell jurors who fired first. But both Carroll and McMellon said they fired because they thought Diallo had a weapon and they wanted to protect each other. Carroll, seeing McMellon fall off the steps, told the jury he thought his fellow officer had been hit. McMellon remembered focusing on and continuing to fire at Diallo even as he was falling off the steps to the vestibule. He and Carroll claimed that Diallo remained standing for much of the shooting.

Boss and Murphy both recalled either Carroll or McMellon identifying themselves as officers. They also remembered McMellon falling off the steps during the shooting and Carroll firing frantically as he was running down the steps. Boss and Murphy said they were trying to come to the aid of fellow officers they believed were under fire when they started shooting. Both remembered seeing an upright Diallo aiming what they believed was a weapon at them.

"I see Mr. Diallo, he's crouched, I see a gun," Boss said. "I think, 'Oh my God, I'm going to die.' I start firing. ... I was in the line of fire."

"I had this empty feeling, this sick feeling in my stomach that I was going to be hit," Murphy testified. "I pulled the trigger, jumping out of the way."

Eyewitness 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 definitions for all lesser included charges 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.

The only charge that has so far not been read back is first-degree reckless endangerment, which carries no lesser included charges. To convict on that count, the jurors must conclude that the officers showed a "depraved indifference to human life" and created a grave risk of death to Diallo and the residents of his apartment building. The minimum sentence is probation and the maximum is 2 1/3 to 7 years

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