Legal Affairs – Should The Feds Prosecute The Cops Who Killed Diallo?

National Journal

The victim was black and unarmed; his assailants, four white cops. The publicity was intense. Public outrage was boiling. The state courts moved the trial out of the racially divided city, where convictions seemed likely, to a quieter, whiter town. And the jury’s verdict-not a single conviction-spread rage through much of the black community.

This describes the cases of both Amadou Diallo, who was riddled with 19 of the 41 bullets New York City police fired at him in the vestibule of his Bronx apartment in February 1999, and Rodney King, whose stomach-churning beating by Los Angeles officers wielding batons was so vividly captured on videotape in 1991.

The prosecution of the Rodney King cops did not end with their April 29, 1992, acquittals by the famous Simi Valley jury on almost all counts. (It deadlocked on one count.) Two days later, as Los Angeles burned, then-President Bush went on television to denounce the riots and to express shock and dismay at the verdict. He all but promised a federal civil rights prosecution. The indictments and trial-this time in Los Angeles-soon followed, ending in convictions of two of the four officers. Both men did prison time.

In some ways, the four plainclothes officers who shot Diallo might seem to be even more logical candidates for federal prosecution. King was a chronic lawbreaker who had led police on a high-speed chase and violently resisted arrest; he is alive. Diallo was a law-abiding street vendor from West Africa who was doing nothing wrong when he was mowed down outside his home; he is dead.

So should the Clinton Justice Department bring federal charges against the Diallo cops? The answer is no. The reasons are four:

1. The jury’s verdict is supported by evidence. The officers’ defense is easy to mock-that they shot Diallo to avoid being shot first because they mistook the wallet he pulled from his pocket for a gun, wrongly assumed that an officer who tripped had been shot, and mistook their own bullets’ ricochets for hostile fire. But this defense is also the only plausible motive for their actions. Nobody has suggested that they killed Diallo for sport or any other improper purpose. So the jury was right to acquit them of second-degree murder and other charges that hinge on criminal intent.

The real question is whether the officers’ fear was reasonable enough to excuse their actions. I had thought initially that at least some of these officers would, and should, be convicted of negligent homicide or reckless endangerment. But those of us who did not sit through the whole trial should hesitate to second-guess 12 jurors who unanimously agreed that there was not proof beyond a reasonable doubt of recklessness. And those of us who have never done dangerous police work in crime-infested neighborhoods at night should ask ourselves how confident we are that we would have held our fire while every other cop on the scene was emptying his gun-as police are trained to do once shooting starts.

In a federal civil rights case, the prosecution would have to prove not only that the officers were reckless but also that they "willfully" violated Diallo’s constitutional rights.

2. The trial was fair. There are no perfect trials, and critics have found fault with this one: The prosecutors were not passionate or aggressive enough; they should have had an expert witness of their own to counteract the compelling testimony by the defense expert, James Fyfe; Judge Joseph Teresi told the jurors too many times that they must acquit on all counts if the defendants reasonably believed Diallo posed a danger to them, and so on.

But many who were in the courtroom or watching on television were impressed by the eloquence of prosecutors and defense attorneys alike, the even-handedness of the judge, the conscientiousness of the jurors, and the emotionally wrenching testimony of the defendant officers. If not a perfect trial, it was a fair one.

As for the much-criticized decision by a state appellate court to move the trial from New York City to Albany, it’s hard to imagine a more appropriate case for a change of venue. So loud and menacing was the "no justice, no peace" clamor raised by the Rev. Al Sharpton and his allies that New York City jurors might well have feared ostracism-even violence-if they failed to deliver convictions.

In addition, the fact that the Albany jury included four black women (along with seven white men and a white woman), with one serving as foreperson, gave its unanimous verdict far more credibility in the eyes of many Americans than would have been possible had the jury been all white, or nearly all white. (The Simi Valley jury had 10 whites, one Asian, and one Hispanic.) Judge Teresi was wise to reject defense efforts to use peremptory strikes to remove three of these black women. The diversity of this jury gives the lie to any claims that racial bias or sympathy skewed the verdicts.

3. The federal government should respect double jeopardy principles. The Supreme Court has long held that the Constitution allows successive state and federal trials of defendants for the same acts because they are "separate sovereigns." And federal prosecutions have sometimes been essential to protect civil rights in those cases-common in decades past-in which biased state prosecutors, judges, and juries have conducted sham trials to let white assailants off the hook for anti-black or anti-Hispanic violence. At the same time, any federal prosecution of a defendant who has already been acquitted after a fair trial in state court does violence to the spirit of the Fifth Amendment’s double jeopardy clause, which was designed to protect innocent defendants from being put to the burden of repeatedly fending off the same charges.

Justice Department guidelines pay respect to double jeopardy principles by authorizing federal civil rights prosecutions in the wake of state court acquittals only when there has been something fundamentally wrong with the state process, such as "incompetence, corruption, intimidation," jury nullification, or a "manifestly inadequate" result. A debatable change of venue, or a prosecutor’s possible tactical mistake, is not in this category.

The Rodney King case is not a suitable precedent. Lou Cannon argues in compelling detail in his impressive 1998 book, Official Negligence, that "there was no fair basis" for the federal prosecution of the four officers who beat King. It was spurred, Cannon said, by President Bush’s political need to discourage further rioting and assuage the nationwide outrage at the Simi Valley verdict.

But even if federal prosecution were justified in that case, it would not be in the Diallo case. The differences include the evidence in the King case of criminal intent to inflict wanton violence, with one officer continuing to pound away long after the prostrate King had been subdued. In addition, the California prosecutors did an especially inadequate job in the King case, and much of the body politic nationwide (perhaps unfairly) viewed the Simi Valley verdicts as illegitimate. Most people who had (like Bush) seen the most damning segments of the video-which looked like a cold case of white-on-black police brutality-were unwilling to credit an almost-all-white jury’s failure to convict anyone of anything. The Diallo verdict has won far broader acceptance.

4. Individual cops should not be made scapegoats for systemic problems. None of this is to condone the suspected pattern of racial profiling and other harsh conduct by New York City police that has provoked hostility and fear in much of the black community. Mayor Rudolph W. Giuliani stresses that the New York police have fired their guns less often than their counterparts in any other large city, yet still have helped reduce the city’s crime rates. But the Street Crime Unit’s hyperaggressive tactics in stopping and frisking black men like Diallo-often based on little but their location, dress, and skin color-carries pre-emptive crime fighting to the point of harassment of innocent citizens. And the unit’s rapid expansion has led to inadequate training of many members, apparently including the four who killed Diallo. Perhaps the Justice Department’s pending investigation of the police department will help spur corrective action. Recruiting more black and Hispanic officers would also help.

Meanwhile, cops who commit crimes-such as those who tortured Haitian immigrant Abner Louima at a New York City station house-should go to prison. But it is not a crime to be poorly trained, or to be part of a swaggering, "we-own-the-night" police culture, or to stumble into a tragic mistake. That may be too charitable a description of the officers who killed Amadou Diallo. But the jury has spoken, and one fair trial is enough.