The New York Times

February 17, 2000


2 Sides Recommend Diallo Jury Hear Reduced Charges

By DAN BARRY


AN ARRAY OF OPTIONS PROPOSED FOR JURY

Here are the charges, along with the standards of proof and punishment, that the defense and prosecution have proposed should be considered by the jury in the case against the four police officers who killed Amadou Diallo. The judge has yet to make a final decision. The officers are also charged with reckless endangerment of bystanders.

SECOND-DEGREE MURDER (intentional) The jury must believe there is proof the officers intended to kill Mr. Diallo at the time of the shooting. Punishable by a minimum of 15 years to life in prison and a maximum of 25 years to life.

FIRST-DEGREE MANSLAUGHTER The jurors can choose this lesser charge as an alternative to intentional murder if they believe the officers intended to cause Mr. Diallo serious physical injury when they killed him. Punishable by a minimum of 5 to 25 years in prison and a maximum of 8 to 25 years.

SECOND-DEGREE MURDER (depraved indifference) No proof of intent to kill or seriously injure is required, but the jury must believe the officers acted recklessly with a "depraved indifference to human life" when they fired at Mr. Diallo. It carries the same penalties as intentional murder.

Under this category, the jury can also consider the lesser crimes of second-degree manslaughter or criminally negligent homicide.

SECOND-DEGREE MANSLAUGHTER There must be proof that the officers knew their actions put Mr. Diallo's life at risk but recklessly disregarded the risk. The minimum sentence is probation, and the maximum is 5 to 15 years in prison.

CRIMINALLY NEGLIGENT HOMICIDE Even if the officers did not know there was a risk of killing Mr. Diallo, the jury can decide they should have known and been more cautious. The minimum sentence is probation, while the maximum is 1 to 4 years in prison.

Sources: State Penal Law, defense lawyers and prosecutors.

Testimony in the trial of four white New York City police officers charged with killing an unarmed black immigrant in a barrage of bullets last year drew to a surprisingly quick conclusion today, as both the defense and the prosecution recommended that the jury be allowed to consider charges less serious than murder.

The joint request capped an unusual day in which both sides seemed to have decided that less was more.

Defense lawyers did not present an expert witness who was expected to testify on sight perception. The lead prosecutor decided not to cross-examine the final defense witness, an expert on police practices. He then

announced that he would offer no rebuttal to the weeklong defense, which had included the testimony of all four officers charged with murdering 22-year-old Amadou Diallo in front of his Bronx apartment building last Feb. 4.

Closing arguments in the racially charged case are not scheduled to begin until Tuesday, but the legal debate that is to continue on Thursday is central to the fate of the officers. They are charged with two counts of second-degree murder, which carries a minimum sentence of 15 years to life in prison.

Now both sides are recommending that lesser alternatives be considered, ranging from first-degree manslaughter, for which a defendant must be found to have intended to cause serious injury but not death, down to criminally negligent homicide, for which a defendant must be found to have known that there was a risk of death and therefore should have acted more cautiously.

The penalties for these lesser charges range from a minimum of up to five years in prison for first-degree manslaughter to a minimum of probation for criminally negligent homicide.

Barry L. Kluger, the chief assistant district attorney in the Bronx, later emphasized that presenting less serious alternative charges in a murder case is not unusual, and that "no special significance should be given to that." Defense lawyers said that while they expected their clients to be found not guilty, they could not risk limiting the jury's options.

Although he is expected to grant the joint request, Justice Joseph C. Teresi said that he would reserve judgment for now, an announcement that concluded nine days of testimony in a case that was expected to last several weeks.

The defense chose to close its case with Dr. James J. Fyfe, a professor of criminal justice at Temple University and a nationally recognized expert on police practices. Three additional factors made Dr. Fyfe especially compelling to the defense: he is a former New York police lieutenant; he declined any payment for his testimony; and, as he acknowledged on the stand, he is best known for testifying against police officers.

Dr. Fyfe made it clear in his testimony that he believed that the four officers assigned to the Street Crime Unit patrol in the Bronx on a cold February night -- Sean Carroll, Edward McMellon, Kenneth Boss and Richard Murphy -- became players in a seconds-long tragedy, not reckless participants in a deadly crime.

According to the version of events offered by the defense, the four officers were driving through a high-crime neighborhood in an unmarked car when Officer Carroll spotted Mr. Diallo standing on a stoop of an apartment building, looking up and down Wheeler Avenue. Finding this suspicious, Officer Carroll instructed Officer Boss, the driver, to back up.

Officers Carroll and McMellon slowly approached Mr. Diallo, the defense says, with Officer McMellon prominently holding his badge and asking in a nonthreatening tone to speak to him. Mr. Diallo did not respond, the officers have testified; instead, they said, he suddenly turned and darted into the vestibule.

Mr. Diallo turned to his left, toward them, and frantically reached into his coat pocket with his right hand, the officers have said. As he pulled out an object, the defense says, Officer Carroll shouted that the man had a gun, and the two officers began to fire. Officer McMellon tripped and fell backward, leading his partners to believe that he had been shot, and Officers Boss and Murphy joined in the gunfire.

When it was over, in a matter of seconds, 41 bullets had been fired; 19 of them struck Mr. Diallo. The black object turned out to be a wallet, a discovery that stunned the officers, the defense says, and left Officer Carroll crying uncontrollably over the young man's body.

Prosecutors have charged that the four officers acted recklessly during the brief encounter -- by failing to determine whether Mr. Diallo was deaf or unfamiliar with English, by not slowing things down once Mr. Diallo was cornered in the vestibule, and by firing so many shots.

Despite the prosecution's success in limiting the scope of Dr. Fyfe's testimony, the former police lieutenant, managed to convey his opinion that the officers had followed police procedure and had adhered to their primary mission: "To protect life."

He said that as members of the Street Crimes Unit, the officers had the difficult and often dangerous task of anticipating crime. They are supposed to investigate suspicious actions, he said. "That's their job."

Dr. Fyfe said that in responding to potentially volatile situations, the police try to follow a theory known as a "scale of escalating force."

The lowest level message is conveyed by the officers' mere presence. That can be followed by persuasion offered in a conversational but assertive manner; the use of a "command voice" ("I'm not asking anymore, I'm telling," Dr. Fyfe explained); a "firm grip" on a shoulder or arm; a "pain-compliance technique," such as finger-bending; "impact techniques," such as thrown fists or feet; and "deadly force," which is used to protect the lives of citizens and officers.

By explaining the theory at length, Dr. Fyfe seemed to indicate that Officers Carroll and McMellon had, in his opinion, approached Mr. Diallo properly, from the level tone that Officer McMellon said he used to the prominent displaying of a badge, as Officer McMellon said he did. This last technique, the professor said, overrides concerns on whether the person being approached is deaf or not familiar with English.

Dr. Fyfe said that officers expect to get responses to their questions; otherwise, their suspicions are heightened. And in this case, he said, the officers were properly focused on not allowing Mr. Diallo to get into the apartment building (even though it turned out that he lived there) because of the potential for barricades and hostage-taking.

From the officers' point of view, he said, "Things can only get worse."

At times, Dr. Fyfe used police terminology already familiar to the jury. He said it was proper for Officers Carroll and McMellon to try and "close the gap" between them and Mr. Diallo. And he said that officers are trained not to kill but to stop, by shooting at the torso, or "center mass" of the body. Officer McMellon had used both terms during his testimony on Monday.

After the favorable questioning by defense lawyers had ended, Eric Warner, the lead prosecutor, said that he had no questions. He then said that he had no rebuttal; that the case he had already presented would stand as is.

His announcement caused a minor stir in the courtroom. "I was shocked," John D. Patten, the lawyer for Officer Carroll, said later.

But criminal lawyers not connected to the case said that the prosecution's decision was not that surprising.

Benjamin Brafman, a defense lawyer in New York, said that the rule is "if your rebuttal evidence is not really strong, there's no point in putting it forward because then the case will end on weak prosecution evidence." Besides, he added, "If the prosecution had a smoking gun, they wouldn't have held it for rebuttal."

Still, a sense of things left unsaid, unasked, pervaded the courtroom.

After the day's session had ended, Mr. Diallo's parents stepped into the crisp Albany air to answer questions about the prosecution's handling of the case from a scrum of reporters.

"I'm not expert on that," said Kadiatou Diallo, the victim's mother and a woman of regal bearing. She also expressed hope that justice will prevail.