New York Post
February 3, 2000


The Prosecution's Weak Star

By Bob McManus

THE winter wind in Albany starts just north of the Arctic Circle, hangs a right at the Adirondacks and then comes whistling past the Capitol in ferocious gusts. So it was yesterday, which helps explain why there were no protesters outside the Amadou Diallo trial as long-awaited opening arguments began.

No doubt the change of venue also helped keep the crowd at zero -- even if Al Sharpton and the rest of the usual suspects had promised a hot time in the capital city all through the trial.

Sharpton, you see, has an interest in across-the-board acquittals of the four white police officers charged with murdering Amadou Diallo, a young black man, one year ago tomorrow.

Yes, Bronx District Attorney Robert Johnson never should have indicted for murder in the first place. But he did, raising unreasonable expectations that the reverend has been doing his best to exploit.

Yesterday, the action seemed to be moving in Sharpton's direction.

Inside the Albany County Courthouse, the jury heard Assistant Bronx District Attorney Eric Warner promise to prove that the Diallo cops "made the conscious decision to shoot" Diallo to death.

This, in summary, seemed to be the totality of his case -- and it was hard not to imagine this question flashing through the minds of each of the defense lawyers: "Is that all they have?"

There are, apart from the officers themselves, no known witnesses to the shooting.

And, so far as is understood, Warner and his team have not interviewed even one of the four cops.

So how did the assistant DA come to know what was in the consciousness of the accused officers at the critical moment?

Is that the plan? To read the officers' minds?

It's an interesting strategy -- and not only because nobody is disputing that the cops made a "conscious decision" to shoot Diallo. The critical issue is whether the cops acted reasonably -- as defined by the New York State Penal Law -- when they opened fire.

This explains why every third word from the defense during opening arguments seemed to be "reasonable."

Certainly each lawyer spoke to the mindset of his client -- and not only on the fatal night.

Steven Brownstein, who represents Kenneth Boss, put it this way: "When I dress for work in the morning, I put on a tie. I try to look my best."

Then he tugged at his jacket lapels, shot his cuffs -- and added, sharply, "My client puts on a bullet-proof vest."

Another pause, for effect.

"A bullet-proof vest, ladies and gentlemen."

This, no doubt, is where the change-of-venue effect is meant to kick in.

Brownstein was speaking to an Albany County jury -- one that, not insignificantly, is rather more "diverse" than the county itself.

It has four black members; three have ties to The Bronx -- and, imagine this, there is even an alternate juror who says he's a gay activist.

But it is still an Albany County jury, steeped in Albany County values -- that is to say, strong law-and-order values.

When the trial is over, the lawyers will to return to New York City. The jurors will just go home -- where they then will have to look their neighbors in the eye each day.

Convictions are not out of the question, of course. Given a sufficiently strong case, anything is possible.

But lessons learned during a 15-year journalism career in Albany -- including five spent as city editor of the local newspaper -- suggest to me that Robert Johnson's case isn't nearly as strong as it needs to be to get over this barrier. Albany County unapologetically -- indeed, pridefully -- likes cops.

Further, the city of Albany is deep in a crime wave reminiscent of New York City during the Dinkins administration.

Further still, and correctly or not, it believes that many violent street criminals come from New York City -- from The Bronx in particular.

All of this undermines another expectation -- that because four black women will be voting on a verdict, convictions all around are more likely.

The notion might have some utility if the defendants were black, and the victim had been white. But since it is necessary for all 12 jurors to agree with Johnson's unlikely premise -- that the four Diallo cops acted unreasonably (there's that word again) -- the true likelihood is that the DA is going to go home empty-handed.

If so, justice will have been served.

Not so, the interests of racial harmony in New York City -- and not just because Sharpton's on the case.

Remember the ACLU's outrageous "41 shots" fund-raising ad? "On Feb. 4, 1999, the NYPD gave Amadou Diallo the right to remain silent," it read. It was published in the city -- and it was cited as a principal reason for moving the trial to Albany.

Now New York learns, from The Post's Gregg Birnbaum, that the folks who wrote that ad have hired on with Hillary Clinton's Senate campaign.

So do you suppose the city will hear echoes of the ad in the event of not-guilty verdicts? Of course it will.

The subject is fair grist for the political mill, but it won't make New York City a gentler place to live.

When it happens, blame it on Bob Johnson. And Hillary.