The New York Times

February 17, 2000


Jury Instructions Remain Crucial Issue for Verdict

By AMY WALDMAN

ALBANY, N.Y. -- For all the courtroom drama the trial of the four officers accused of killing Amadou Diallo has presented, the outcome of the case could rest on behind-the-scenes negotiations on how the judge will instruct the jury to apply the law.

On Tuesday, lawyers for the officers and from the Bronx district attorney's office convened in the chambers of Justice Joseph C. Teresi to discuss whether the jury should be allowed to consider lesser charges against the officers, along with the two counts of second-degree murder each is already facing.

On Thursday, they will meet again, this time to continue talks over how the judge will instruct the jury on which sections of state law to apply in the case. Each side will present the judge with a "request to charge" that contains the language it wants the judge to use when instructing the jurors on what they should consider during their deliberations.

The biggest area of contention now involves the officers' claim that the shooting was justified because they believed Diallo had a gun. Under New York penal law, there are two justification statutes. Section 35.30 applies specifically to police officers, and says they are justified in using physical force only if they are arresting someone or preventing an escape from custody. The officers have said they were seeking only to question Diallo, not to arrest him, and he was not in custody, so their lawyers are not confident that Teresi will allow them to rely on that statute.

That leaves Section 35.15, which is applicable to anyone. That section justifies using physical force when someone believes it is necessary to defend oneself or someone else from an attack.

What worries defense lawyers is a section of that statute that says a person who is facing a potentially deadly attack cannot use deadly physical force in response if he or she knows that retreating is a viable option.

Some defense lawyers are worried that the judge will instruct jurors that the officers had a "duty to retreat," and lawyers not involved in the case agreed that it could create a heavy burden for the defense. "If the judge does charge duty to retreat, that's devastating to the defense," said Barry Kamins, a lawyer in private practice. "Normally police officers are not obligated to establish that there was a duty to retreat."

That is what defense lawyers are expected to argue on Thursday, with the support of cases from other states that they hope will be persuasive to the judge.

There are other issues at stake, including whether the jury will be told that every shot the officers fired must be justified, and the notion of "acting in concert" -- a prosecution theory that says the defendants had a shared state of mind. While maintaining a joint defense, the defense lawyers -- particularly those for Officer Kenneth Boss, who fired five shots, and Officer Richard Murphy, who fired four -- also want to separate their clients in the minds of the jurors. The other two officers, Sean Carroll and Edward McMellon, each emptied his weapon.

What may turn out to be the most significant legal issue was resolved behind closed doors on Tuesday. The question of whether the jury should be allowed to consider lesser charges has hovered over the trial since a grand jury indicted the officers for murder.

Under the agreement reached on Tuesday, the jury will have to reach a verdict on each murder count before considering lesser charges, including intentional murder, first-degree manslaughter, second-degree murder with depraved indifference to human life (a lesser charge that means the officers acted recklessly), second-degree manslaughter and criminally negligent homicide.

The addition of lesser charges would seem to increase the chance for a conviction of some kind, several lawyers not involved with the case said Wednesday. "Putting a variety of charges in front of the jury promotes the idea of compromise," said Gerald L. Shargel, who has represented the convicted mob boss John J. Gotti. "If there are jurors who want to acquit and others who want to convict, then criminally negligent homicide might be a good place to resolve that dispute."

But for the defense, not asking for lesser charges could be a gamble with severe consequences. Lawyers often talk about the case of Jean Harris, who was tried in 1981 in the death of her lover, Dr. Herman Tarnower. Her lawyer asked the jury not to compromise on a lesser verdict, and Harris was convicted of second-degree murder.

Shargel also said, however, that prosecutors in the Diallo case asking for lesser charges suggested that they "recognize that the jury is unlikely to see this as a case of murder -- as the intentional taking of Diallo's life. I think they're starting to see this case, if a crime has been committed here, as something less than murder."