Blaming the Bronx D. A.

Al Sharpton Privately Accused Robert Johnson of... "Throwing the Diallo Case"

Two weeks before a racially mixed jury in Albany delivered its controversial verdict in the Amadou Diallo murder trial, some of New York City's African American leaders began to seethe with outrage over the "bloodless," "listless," and "sleepy-eyed" cross-examination of the four white cops by Bronx district attorney Robert T. Johnson's top-notch prosecution team.

When it appeared that the jury had warmed to two days of sometimes emotional testimony from the officers—and prosecutors were doing little to discredit a burst of crocodile tears from the lead gunman—Diallo family lawyers, Harlem congressman Charles Rangel, and a contingent of church officials led by the Reverend Al Sharpton engaged in a vicious behind-the-scenes row with Johnson about his handling of one of the most closely watched police brutality cases in New York criminal justice history.

Driving back to New York City the day the last two defendants testified, Sharpton told aides he believed that blame for the bungled legal strategy—which resulted in the acquittal last Friday of officers Sean Carroll, 37, Edward McMellon, 27, Kenneth Boss, 28, and Richard Murphy, 27—lay squarely with the state's first black district attorney. In the presence of two top lieutenants from his National Action Network and his driver, Sharpton called Johnson from a cell phone and the two had a blowout. Johnson, 52, denies he and Sharpton brawled. "The only conversations we had were civil conversations," says the D.A., whose insistence that his prosecutors did a good job in the Diallo case has triggered calls for his resignation. "There were times when he didn't understand what our strategy was and we explained it to him." But as Sharpton and Johnson debated the ill-fated strategy on black talk radio after the verdict, Sharpton the activist and his aides reconstructed the verbal fisticuffs, blow by blow. This is their recollection of the conversation:

Sharpton: "All I wanna know, are y'all trying to throw this case or not? Because I'm tellin' you that there is no way we're gonna sit by and let y'all do this."

Johnson: "Reverend Sharpton, are you accusing me of throwing the case? Do you know who you're talking to?"

Sharpton: "Wait a minute! Not only do I know who I'm talkin' to, I'll be all the way up your ass if somebody doesn't turn this around!"

Johnson: "I am the Bronx district attorney. I'm not going to be addressed like that!"

Sharpton: "I know who you are! I helped to get you elected Bronx D.A. The issue is not your title. The issue is the function of your office. You guys blew the Anthony Baez case [a federal jury convicted police officer Francis Livotti of civil rights violations in Baez's choking death after he was acquitted in Bronx Supreme Court] and we're not gonna let you blow the Diallo case!"

Johnson: "Let's calm down, reverend. We've gone far enough with this."

According to the aides, Sharpton took a deep breath. His massive torso heaved as he snorted from the Monday-morning quarterbacking. Johnson, who is soft-spoken, broke the silence. "What exactly is your bone of contention?" he asked.

Sharpton: "This guy [Assistant District Attorney Eric Warner] never cross-examined Boss or Murphy on anything! He never laid a glove on them. He never asked Boss about the Patrick Bailey killing [on Halloween night in 1997, in Brooklyn, Boss shot and killed Bailey under controversial circumstances] when he and the other cops were allowed to go through their 'stellar' records. He never raised the contradiction."

Johnson: "What contradiction?"

Sharpton: "Sean Carroll testified that Amadou was standing up straight, erect, looked like he had on a bulletproof vest, and that's why he had to shoot at his legs. Boss testified that Amadou was in a combat position. That was the same thing he said about Bailey. All your prosecutor had to say to Boss was, 'Mr. Boss, are you sure Mr. Diallo was in a cramped position?' If Boss answered yes, then he should have asked, 'Were you sitting here in court when Sean Carroll said Mr. Diallo was erect?' If he answered in the affirmative, all your man had to say was, 'So you're contradicting Mr. Carroll's statement; isn't that the same thing you said happened in the Patrick Bailey shooting?' He could have crucified him on that. Again, 'Mr. Boss, you said that you looked in, saw Mr. Diallo, and shot—you thought you shot twice, it was five times—and then you jumped out of the line of fire, which means you didn't have to jump in the line of fire. You were not in danger, which means that you shot Mr. Diallo out of revenge, thinking that Officer McMellon had been shot when in fact he had not been shot. You were in no danger when you shot your five bullets.' "

This line of questioning would have guaranteed a murder conviction, Sharpton maintained. He told his aides that at this point Johnson appeared to be taking notes, and recalls that they then had the following exchange:

Johnson: "Well, let me see what their explanation is as to why they didn't go into it. Maybe they think their case was so solid they didn't need it."

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