February 18, 2000

Ruling Could Help Cops

Jury may consider whether shooting was justified

By Graham Rayman Staff Correspondent

Albany -- Lawyers for the four police officers charged with murdering Amadou Diallo won major legal victories yesterday when a state judge ruled that the jury can weigh whether the shooting was justified as a police action. The decision could help bolster the officers' chances of acquittal because it would apply a different standard than for a civilian in determining whether the officers acted in self-defense when they fired 41 shots at the unarmed immigrant.

Justice Joseph Teresi of State Supreme Court made the decision after an hour-long session with defense lawyers and prosecutors in his chambers yesterday. Teresi, who set closing arguments for Tuesday, also omitted a section of the justification law that requires a civilian to retreat if it can be done safely but does not require the same thing of a police officer making an arrest.

And he said he will allow the jury to review state law on police street encounters because "it is necessary to provide the jury with some guidance on what is proper conduct." He added that he was obligated to view the issues "in the light most favorable to the defense."

Teresi also agreed to a prosecution request that the jury be allowed to consider lesser charges against the four officers: Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy. That decision, which was not opposed by defense lawyers, was a boost for prosecutors.

Besides the original charges of second-degree murder and reckless endangerment, the jury can consider manslaughter and criminally negligent homicide during deliberations. Prosecutor Eric Warner argued yesterday that because the defense failed to show that the officers were in the process of making an arrest when they shot Diallo, their actions should not be judged by police standards of what is justifiable.

"Any police officer driving down the street, if they suspect anybody of a push-in robbery, they could shoot him on sight," Warner said, adding that an acquittal based on that standard of justification would set a bad precedent. The law providing for the justification defense, section 35.15 of the state penal code, says that a person must seek to retreat before using deadly force. But the law does not differentiate between the actions of a citizen and a police officer.

Another section -- known as 35.30 -- does not require a police officer to retreat when "attempting to effect an arrest." The standard for the justification defense was set in the case of subway gunman Bernard Goetz, who shot four teenagers who surrounded him on a subway train in 1984. "The Goetz case set up an objective standard and a subjective standard," said Bruce Smirti, a lawyer who has represented dozens of police officers. "First, you have to subjectively believe you are in imminent danger. Then you have to point to some objectively reasonable circumstances which led you to believe that."

In the Diallo case, Smirti said, the objective indication, according to the officers' testimony, was that the West African vendor ignored commands to stop and was reaching into his pocket.

The fact that the officers were wrong in believing that the unarmed Diallo had a gun will have no legal weight in deliberations, Smirti said. "You can be mistaken without being found guilty," he said.