Blaming the Bronx D. A.


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.”

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.

Sharpton, the aide says, intended to go over Johnson’s head. “What are you doing?” a befuddled Johnson aide reportedly asked one of the Diallo family lawyers. “You don’t trust us? Why is Sharpton undermining us?”

“We don’t know what Sharpton is doing, but we consider it wise to have this as an option,” the lawyer responded. “Why are you taking it so personal?” Johnson allegedly banned the Diallo lawyers and Sharpton from future meetings between the parents and prosecutors who regularly briefed the family about the case.

The day before the trial started, prosecutors insisted on meeting only with Diallo’s parents at the Marriott Hotel in Albany. “No other family members. No lawyers. No advisers,” a Sharpton aide recalls. “It was interpreted in Diallo family circles that they were still pissed off about the Washington trip.” Sharpton bristled at Johnson’s alleged attempt to isolate the advisers. “The prosecution’s briefing on how they planned to handle the case would be known only to Saikou and Kadiatou Diallo, who really didn’t understand the American legal system,” the aide says.

But the Diallos stepped out of the fray, telling their advisers they wanted to hear what prosecutors had to say. “When they came back,” says the aide, “they said that the prosecution was confident they could win, and outlined how they were going to present the evidence.” During jury selection, Sharpton and Cannick privately sharpened their criticism of the prosecution for not immediately pointing out to the judge that defense attorneys were trying to have jurors removed based on race. “Reverend Sharpton began to wonder whether prosecutors would go for the jugular or just put up a ‘presentable case,’ ” the aide says. “Rev saw that the defense was trying to knock all the blacks off the jury and that prosecutors wasn’t saying anything about it in open court. That’s when he called a press conference and blasted the defense lawyers for being biased. By Reverend Sharpton raising a stink, four blacks got on the jury. The judge was forced to back up because Rev called the jury selection racist.”

As testimony got under way, Sharpton and lawyers for the family felt that prosecutors should put Mrs. Diallo on the witness stand to explain what Amadou meant to her. “Everyone knows how magnetic she is,” an aide assserts. “She would have won the hearts of the jury, but the prosecutors did nothing to humanize Amadou. This whole thing about him being an immigrant and a peddler played into the anti-immigrant feelings of people in Albany.” Johnson rebuffed the suggestion to call Mrs. Diallo, and told the advisers to back off. “The prosecutors said that they did not want their case influenced by lawyers who had a monetary interest or by Al Sharpton who had a political interest,” the Sharpton aide remembers.

After all of this, not calling Johnson was out of the question as far as Sharpton was concerned. The minister demanded to speak to the D.A. after the attorney for Officer Carroll—the cop who broke into tears as he testified—argued that Diallo’s body was not tampered with after he was shot. According to an aide, Sharpton suggested to Johnson that prosecutors trip up that defense argument this way: “The logical thing to have asked is, ‘Didn’t Sean Carroll’s attorney in his opening statement say that Carroll had in fact intended to give CPR to Amadou? He had to move the body to try to give him CPR. So why wouldn’t the prosecution in their redirect come back with that so the jury can be reminded of what was said?’ ”

Johnson reportedly thanked Sharpton for making a “good point,” adding that he wanted to think about it. “He never said whether he would talk to them or not, which might have been strategic,” the aide says.

It was only on the second day of jury deliberation that Johnson finally showed his face in the Albany courtroom—a move his critics now believe signaled that his strategy was in trouble.

Additional reporting: Danielle Douglas

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