February 2, 2000

Was It Murder?

Trial of Four Cops who Shot Diallo Opens in Albany

By Graham Rayman Staff Writer

Albany—A Bronx prosecutor charged yesterday that the four police officers accused of murdering Amadou Diallo did not identify themselves and continued to fire shots as the West African vendor was falling down.

Defense lawyers insisted the officers identified themselves and were only reacting to what they saw as Diallo's suspicious behavior.

In his opening statement, prosecutor Eric Warner said: "They made a conscious decision to shoot a man standing in a confined space...not much bigger than an elevator. Each shot required a separate pull of the trigger...A number of shots hit him when he was falling down or actually on the ground." Before they fired, Warner charged, the officers did not "call out commands like 'stop' or 'police' or 'don't move.'" Later, Warner elicited testimony from a crime-scene detective that four bullets dropped from Diallo's body when it was picked up to be taken to the morgue.

"In the 1990s, in Bronx County, in Albany County or anywhere else, a human being should have been able to stand in the vestibule of his own home and not be shot to death... especially when those doing the shooting are police officers sworn to protect innocent people," Warner said.

Kadiatou Diallo, the victim's mother, dabbed tears from her eyes as Warner described her son's many bullet wounds.

In their opening statement, defense lawyers offered the most detailed account they have yet presented. At the critical moment, said Bennett Epstein, the lawyer for Officer Sean Carroll, Diallo ducked into the vestibule, reached into his pocket and turned toward the cops with a black leather wallet in one hand.

The officers mistook the wallet for a gun, he said.

"The officers identified themselves," said Epstein. "He did not listen to clear orders to stop, to 'Show us your hand.' Diallo did not comply" Epstein said Diallo initially attracted Carroll's attention by stepping in and out of the vestibule and glancing down Wheeler Avenue from his stoop.

The officers closed the distance between themselves and Diallo as quickly as possible, as they are trained to do, said defendant Edward McMellon's lawyer, Stephen Worth.

"The officers made their decision to fire based on their training, experience and the facts they knew at the time," Worth said. "It takes a confluence of events to go wrong at the same time for a tragedy like this to occur." Once the firing started, under the defense theory, Diallo's body was held upright by the 19 bullets that pierced his body.

Ricochets, the "roar" of gunfire, flashes reflected in a glossy door and a fall by McMellon led the officers to believe they were being fired upon, Epstein said.

Carroll, McMellon, Kenneth Boss and Richard Murphy are charged with murder in the second degree in connection with the Feb. 4, 1999, slaying. Their trial was moved to Albany after an appellate court ruled they would not get a fair trial in the Bronx.

The prosecution case suffered a blow in the afternoon, when the crime-scene detective admitted the scene was "somewhat contaminated" by "quite a few officers" walking through the scene before he arrived.

The detective, Joseph Flannino, also acknowledged that he did not study the lighting at the crime scene and include it in his report.

The prosecution case continues today with testimony from the first officers to reach the scene.

The defense case will include testimony by John Cerar, a former NYPD training officer, James Fyfe, a criminologist and expert on police use of force, and George Fassnacht, a ballistics expert.