Blaming the Bronx D. A.

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

Sharpton: "So solid? How do you know when you've got a solid enough case? How do you know what a jury is thinking?"

Johnson: "I'll get back to you."

That was the last time Sharpton and Johnson spoke, an aide says. "He never took any more calls from Reverend Sharpton after that."

On the morning of February 17, Sharpton arrived sallow-faced in the lobby of the U.S. Department of Justice building in Washington, D.C. As the Diallo family's chief adviser, he had come—at the urging of black activists, politicians, as well as the family and their lawyers—to hand-deliver a complaint to Eric Holder Jr., Attorney General Janet Reno's top assistant and the most powerful African American in the Justice Department. Sharpton, as he states in a letter obtained by the Voice, was "greatly concerned with the manner in which this case has been prosecuted."

The day before, Temple University criminologist James Fyfe, testifying for the defense, argued that the four white cops who killed an unarmed Diallo in a barrage of 41 bullets were right to charge the vestibule of his Bronx apartment building. Fyfe's convincing testimony dealt a severe blow to the already lackluster performance by prosecutors. Shortly after the defense rested, prosecutors asked Justice Joseph C. Teresi to direct the jury to consider lesser charges—manslaughter and criminally negligent homicide—in addition to the top counts of second-degree murder, depraved indifference, and reckless endangerment. Several observers, including Sharpton, interpreted the prosecution's move as an omen that it had lost the case.

As Sharpton handed the letter to the clerk, he remembered that "those of us with a sincere interest in assuring that justice will be meted out" now had a backup strategy to an earlier petition from Diallo's parents for federal intervention: If Carroll, McMellon, Boss, and Murphy walked, they'd be heading straight toward a federal courthouse.

"In light of the passion and public outcry that has accompanied this case, the prosecutor's less than aggressive stance against the four accused officers has been an inferior denouement," Sharpton complains in the letter. "While justice has been swift in this case," he adds, "it remains to be seen whether it will also be fair. It pains me to ponder that at some point, Mr. and Mrs. Diallo's introduction to American justice may only enhance rather than abate their grief." According to Sharpton, he and Holder talked later that day by phone, and Holder vowed that the Justice Department would closely monitor closing arguments, the judge's charge to the jury, and the panel's deliberation.

Tensions escalated after Sharpton and Deveraux Cannick, a lawyer for Saikou Diallo and a former Bronx assistant district attorney, concluded that prosecutors failed to properly cross-examine Schrrie Elliott, a key witness who had refused to meet with defense attorneys but was subpoenaed by them to testify about what she heard the night Diallo was shot. In television interviews, Elliott had said that one officer yelled "Gun!" And she also indicated Diallo appeared to be on his feet for most of the shooting—all proof, the defense contended, that the officers fired because they believed Diallo was an armed threat.

In court, Elliott reiterated that someone yelled "Gun!" before a volley of shots. But the defense gamble backfired when Elliott also claimed that the officers cornered Diallo and opened fire without warning. She further testified that the officers kept firing at the unarmed victim after he fell to the ground. Elliott, Sharpton says, should have been the prosecution's star witness. "She was a good witness that the prosecution never emphasized." Out of respect for the Diallo family, Sharpton held back from publicly blasting the prosecution team, but then erupted over what he considered the prosecution's biggest blunder. "They never really aggressively went after the cops," charges Sharpton.

Previously good relations between Al Sharpton and Bob Johnson began to sour on January 25 after Sharpton emerged from his first meeting at the Justice Department with Eric Holder; Bill Lann Lee, head of the attorney general's Civil Rights Division; Diallo's parents; Rangel; and a group of clergy.

At a news conference afterward, Sharpton announced that federal officials would monitor the trial of the four officers. That did not sit well with Johnson, whose prosecutors, according to a Sharpton aide, "went ballistic" upon the delegation's return from Washington. Why were Sharpton and Rangel asking for the feds to look over Johnson's shoulder, they asked. Sharpton insiders say the activist began to perceive Johnson as a "political patsy" from whom powerful white politicians and judges were snatching authority.

In 1996 Johnson emerged at the center of a controversy over the use of New York's reinstated death penalty law. Johnson, who once prosecuted a case in which an innocent man was convicted of murder and opposes capital punishment, refused to seek the death penalty in the case of Angel Diaz, who was accused of shooting Officer Kevin Gillespie to death during a wild police chase of suspected carjackers. Republican governor George Pataki removed Johnson from the case and appointed state attorney general Dennis Vacco as special prosecutor to pursue the death penalty. In the Diallo case, Sharpton, along with other black activists, were upset by Johnson's tepid response after state appellate judges, claiming that the wave of pretrial publicity would make it impossible to find an impartial jury in the Bronx, moved the trial to Albany.

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