The defense successfully claimed that Amadou Diallo was responsible for the events that led to his accidental shooting. Lawyers for the officers argued that Diallo, for reasons unknown, failed to heed a police order to halt, making a routine police stop-and-question escalate into a shooting. (Court TV)

				DIALLO SHOOTING TRIAL
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ALBANY, N.Y. (Court TV) — The four NYPD officers who gunned down Amadou Diallo in a hail of 41 bullets last year were acquitted Friday of all criminal charges.

Concluding that the officers were justified in their decision to shoot the unarmed West African vendor, the Albany jury rejected the second-degree murder and reckless endangerment charges and all the lesser included charges against Sean Carroll, Edward McMellon, Kenneth Boss and Richard Murphy. The four members of New York's Street Crime Unit killed Diallo in the vestibule of his Bronx home on February 4, 1999.

Jurors deliberated approximately 23 hours over a three-day period. They asked for several readbacks of testimony and definitions of all the primary and lesser-included charges against the officers. They focused on Carroll and McMellon's testimony, twice requesting readbacks of their accounts of the shooting.

The officers claimed that the shooting was a horrible — yet reasonable — accident, not a murder. Carroll, McMellon, Boss and Murphy 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. Carroll and McMellon fired 16 times each; Boss fired five times, Murphy four.

Diallo was struck 19 times. To their horror, the officers said, they learned he was unarmed and had only his beeper, a wallet and keys.

The defense successfully claimed that Diallo was responsible for the events that led to his accidental shooting. Lawyers for the officers argued that Diallo, for reasons unknown, failed to heed a police order to halt, making a routine police stop-and-question escalate into a shooting.

The plainclothes officers were patrolling the Bronx in an unmarked car in search of a serial Bronx rapist when they encountered Diallo. As they drove down Wheeler Avenue, Carroll testified that he thought Diallo was acting suspiciously because he kept looking up and down the block. Carroll said Diallo 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 said they decided to approach Diallo.

Carroll and McMellon testified that they identified themselves and that Diallo did not heed their repeated commands to halt. When he allegedly turned his back completely to them and "darted" into the vestibule after ignoring another command, Carroll and McMellon said they thought he was trying to flee them. At that point, both officers said, they began to run after him; Carroll told jurors he thought that Diallo may have been part of a push-in robbery attempt. He said he didn't want Diallo to get inside the building because he thought that would have led to a potential hostage situation involving innocent residents.

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. When Diallo began to turn around, still pulling at the object in his right pocket, Carroll said he cried, "Gun!"

"As the individual pulled at the object in his right pocket, my prior experience, my training, told me he was pulling out a gun," Officer Sean Carroll tearfully testified. "At that point, I alerted my partner [Edward McMellon]: 'Gun! He's got a gun!' ... Believing that he [Diallo] was about to fire his weapon on my partner, I fired my weapon."

Neither Carroll nor McMellon were able to tell jurors who fired first. But both said they fired because they thought Diallo had a weapon and they wanted to protect each other. Carroll told the jury he saw McMellon fall off the step leading to the vestibule and 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. McMellon 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."

The defense stressed that the officers' accounts of the shooting were consistent because they were truthful. Defense attorneys asked jurors to place themselves in the officers' shoes and determine whether it was reasonable for them to believe, under the circumstances, that Diallo had a gun and their lives were in danger.

Police training expert James Fyfe supported the officers' actions. Fyfe, based on interviews conducted with the defendants, testified that the officers' decision to approach — and rush — Diallo were consistent with their training. Fyfe said the officers followed NYPD procedures and therefore, were justified. 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.

A failure to challenge Fyfe directly and with their own expert may have cost prosecutors their case. Prosecutors did not cross-examine him or confront him with the officers' admitted duty to protect all human life — including Diallo or any other alleged suspect.

The prosecution may have helped its case if it had argued to Fyfe that the officers themselves, not Diallo, escalated the situation. But the prosecution did not present any rebuttal witnesses, opting not to present a rebuttal case. Jurors only had a pro-defense expert — and the defendants — to give them guidance on proper police training and procedure.

Without expert testimony and a direct challenge to Fyfe, Bronx prosecutors argued in closings that Diallo did nothing that warranted being shot at 41 times. Standing in the vestibule of your own home and looking up and down the street is not suspicious and is not a crime, prosecutor Eric Warner argued.

In his closings, Warner used Carroll's own words to argue 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 argued, they forgot about the West African's humanity and failed to preserve his life.

The prosecution also claimed that Diallo was downed quickly and the officers continued firing on the fallen victim. And to prove that the officers intentionally murdered Diallo or killed him with depraved indifference to his life, prosecutors stressed the testimony of their chief medical expert, 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 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.

Still, the defense countered Cohen's testimony with the findings of pathologist Richard Mason and ballistics expert William Fackler. 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. Momentum, 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 19 shots 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. Defense lawyers pointed out that the medical testimony of Mason and Fackler supported officers' account of the shooting — particularly the claims that Diallo was standing and turning in a counter-clockwise direction.

A pivotal witness for both sides was the only other living eyewitness to the shooting, Schrrie Elliott. When defense lawyers called Elliott as their first witness, they expected her to corroborate claims that one of the officers cried, "Gun!" before the shooting started. But Elliott also 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 recalled to the stand several days later and declared a hostile witness for the defense. Defense attorney Stephen Worth confronted and discredited Elliott with interviews she gave to WNBC News and statements given before the FBI and a Bronx grand jury. In those statements, Elliott claimed Diallo remained standing for much of the shooting and that one of the officers cried "Gun!" She also said Diallo had his right hand to his side most of the time.

Defense attorneys criticized prosecutors' failure to call Elliott as their own witness and accused them of trying to hide her testimony. James Culleton, Richard Murphy's lawyer, argued in his closings that prosecutors did not call Elliott because they knew she would ruin their case.

Warner, however, disagreed. He insisted Elliott helped the prosecution's case and torpedoed the defense. Warner pointed out that Elliott also testified that she never heard, despite the defense's claims, any officer bark a command at Diallo before the shooting. The prosecutor also noted that she testified that all four officers left their car at the same time and had their weapons drawn. In addition, Elliott told the jury that she never saw any of the officers fall off the steps of the vestibule, a claim the defense believed justified the decision to fire at Diallo.

Still, jurors were not convinced. Despite the acquittals, Diallo's family has indicated that it still plans to file a wrongful death suit against the city of New York.

— Bryan Robinson