Shake the Trees

After the Latest Police Killing of Another Unarmed Black Man, The Feds Need Little Convincing to Intervene in New York

Fast forward to 2000. Johnson's prosecutors come under fire again—this time for botching the Diallo trial. Eric Warner, Johnson's lead prosecutor, had not tried a major case since the Happyland Social Club inferno trial nine years earlier. In some legal circles, Warner's opening argument was considered weak. Others felt he neglected to develop a clear theory of the case, and then made a grave omission when he failed to proffer expert witnesses on police training and procedures. When the defense provided an expert on police practices, Warner and his team seemed surprised.

The prosecution did not refute any information or cross-examine Dr. James Fyfe, a former NYPD cop who is a professor at Temple University in Philadelphia. Fyfe was the only authority on police practices and procedures in the entire case: The jury had no choice but to accept Fyfe's testimony as an accurate representation of acceptable police procedures. Schrrie Elliott, perhaps the only eyewitness to the shooting, wound up in the clutches of the defense team—a crucial mistake. Even if prosecutors were uncomfortable with Elliott, they should have called her, explaining any problems in her testimony while keeping the offensive.

The prosecution's incompetence stretches further with the mishandling of the key defense witnesses. Officer Sean Carroll testified that Amadou Diallo fit the description of an armed rapist they had been searching for on that tragic night. When Carroll further stated that he could not see Diallo's face clearly as he made that determination, that was the very moment that the officer admitted to violating Diallo's constitutionally guaranteed right of equal protection under the law. Carroll and his Street Crime Unit buddies allegedly had profiled Diallo as a criminal, and were confronting the unarmed man on a fallacious, inarticulable suspicion. These four white cops, who seem to have had a rabid predisposition to criminalize a black man, inappropriately approached Diallo for reasons that cannot be soundly articulated, and killed him when there was no evidence that he had any connection to a crime. That approach, some argue, demonstrates intent to deny Diallo his federally protected rights.

A police officer can hold whatever prejudicial views he or she chooses, but is not legally free to interfere with the freedom of a citizen based on fear, instinct, or stereotypical views about black people. To act upon fear and perceived criminality—even in "high-crime" areas— without some type of articulable, reasonable suspicion that an individual is connected to the commission of a crime is a violation of the 14th Amendment's Equal Protection clause. Racial profiling and stopping and questioning are closely related.

Cops arguably are special citizens who have rights that are not available to John and Jane Doe. In their investigation of the circumstances surrounding the Diallo shooting, federal prosecutors should closely examine the notorious "48-hour rule"—a police union policy that forbids the questioning of officers in the immediate aftermath of a serious incident.

This prophylactic insulates cops from criminal liability by inhibiting the timely investigation of incidents in which they are suspects. They are allowed a "cooling-off" period, and during this time they are not required to make any statements or speak to investigators. Crimes often are solved in the embryonic stage of an investigation, when suspects are questioned, and written, oral, and videotaped statements are taken. When detectives investigate a non-police shooting, they question perpetrators immediately and make their statements part of the permanent trial record. Instead of enjoying the right not to immediately report their involvement in alleged criminal misconduct or controversy, police officers should be obligated to give their version of events—without undue delay.

In the Bronx, D.A. Robert Johnson, searching for a way out of the political maelstrom after the Diallo verdict, argued that Diallo's killers frustrated prosecutors when they invoked the 48-hour rule. Johnson may bristle at the criticism he's getting, but he certainly deserves it. That the cops refused to talk to his investigators is not an excuse. His prosecutors never shook the trees to bring down evidence, much less racist cops. They clearly failed to properly investigate, anticipate defense strategies, and litigate the Amadou Diallo murder case. There is, however, redemption for beleaguered prosecutors like Johnson. He ought to take a page out of Charles Hynes's book and prepare a brief for Janet Reno as she considers whether to file civil rights charges against officers Carroll, Boss, McMellon, and Murphy. But Johnson, it appears, is too busy dawdling with the politics of damage control.

Carl W. Thomas is the former lead attorney for the Abner Louima legal team. Additional reporting by Peter Noel.

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