Diallo Jury Charges

The officers and their defense attorneys wonder what direction the Diallo jurors are leaning with their several requests for readbacks. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — After over 16 hours of deliberations, jurors deciding the fate of the four NYPD officers who gunned down Amadou Diallo have been unable to reach a verdict. But when they return for a third day of deliberations Friday, they will have more testimony from the officers who fired the most shots at the West African street vendor read back to them.

Jurors told Albany Justice Joseph Teresi late Thursday night that they want to re-hear officers Sean Carroll and Edward McMellon's testimony, particularly their claims focusing on the time they approached Diallo on the sidewalk to the beginning of the gunfire. They also want to have the testimony of defense police training expert James Fyfe read back to them as well as the judge's instructions on legal justification.

This is the second time jurors have focused on Carroll and McMellon. On Wednesday, the first day of deliberations, they requested readbacks of their testimony addressing what happened from the time the two officers left their car until they were taken to the hospital. Earlier Thursday, jurors shifted their focus to Kenneth Boss and Richard Murphy and requested readbacks of their testimony about what happened before and during the shooting. Jurors also have requested and received readbacks of the testimony of eyewitness Schrrie Elliott.

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. 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. They asked Albany Justice Joseph Teresi to read back the elements of first-degree manslaughter, a lesser included charge for intentional second-degree murder as well as 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. Jurors also asked for readbacks of the definitions of both intentional second-degree murder and second-degree murder with depraved indifference.

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.

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.

Key Testimony

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 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.

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)

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.

Prosecutor's Claims

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 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