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Burden of Proof

Amadou Diallo Case: Jury Deliberations Continue

Aired February 25, 2000 - 12:30 p.m. ET



ERIC WARNER, PROSECUTOR: If they had just stopped to think to get themselves out of the preconceived notions that this bad block's got bad people and that guy who's slinking and peering -- all they had to do was take the time to look at this man for what he was.

JOHN PATTEN, ATTORNEY FOR SEAN CARROLL: It's not like you see on television -- boom -- and I get blown across the room. That doesn't happen. You don't know the effect the bullets are having on the man, and remember there's a rapidity at the time.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: An Albany jury deliberates a verdict in the murder trial of four New York City police officers. They're being tried in the killing of an unarmed African immigrant.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF.

In Albany, New York today, a jury continues to deliberate the verdict in the case of four New York police officers on trial for the murder of immigrant Amadou Diallo. Yesterday, the jury asked the judge to reread the law on the less serious charge, first-degree manslaughter.

GRETA VAN SUSTEREN, CO-HOST: During his instructions to the jury on Wednesday, New York State Supreme Court Justice Joseph Teresi presented the option of charges other than murder. Yesterday, the jury deliberated late into the night and continued its deliberations this morning.

COSSACK: And joining us today from New York is criminal defense attorney Ron Kuby. Also in New York, clinical law professor Chester Mirsky. And in Los Angeles, we're joined by Gilbert Calvillo, senior trial consultant for Trial Logix.

VAN SUSTEREN: And here in Washington, Laura Anderson (ph), Vicky Mooney (ph) and Kelly Pinke (ph). And in our back row, Kate Danley (ph) and Amber Woglan (ph). And also joining us from Albany is CNN correspondent Maria Hinojosa.

Maria, first to you. What is going on today in the court?

MARIA HINOJOSA, CNN CORRESPONDENT: The jury is back deliberating now, Greta. Just a few minutes ago, they had requested from the judge to reexplain to them the issue of justification. The judge told them that under New York State law, if the jury believes that the officers were acting in self-defense, then the shooting could be justified. Earlier this morning, they heard the reread of testimony from the two officers who each fired at Amadou Diallo 16 times. They also requested the reread of the testimony from the police expert, who is usually a police critic but in this case is saying that the police were justified.

The central case here from the defense is that this was a question of justification, and that the police officers were following police procedure. They'll be deliberating for just a few more minutes. The judge told them that their lunch will be arriving and then not to deliberate during lunch, but to resume deliberations soon afterwards.

VAN SUSTEREN: Maria, has the jury been sequestered at all?

HINOJOSA: The jury is sequestered, yes, and this judge has been pretty demanding of them. They started at 9:15 in the morning, they went until 11:00 last night, and he has a very tight control over this courtroom, and everyone here is quite exhausted as we wait for the verdict in this very controversial case.

COSSACK: Maria, you know, no one really knows what a jury will do or can do, but what was sort of the thought in the courthouse when the jury went out. Did they -- did people sort of talk about a quick verdict or a long verdict? What was -- what were people talking about?

HINOJOSA: Well, Roger, this case went so fast that that really surprised people from the beginning. A jury was picked in two days. People had thought it might take over a week. The testimony was done in about three weeks. So people kind of thought that perhaps there was going to be a fast verdict. That feeling now has quickly disappeared. Of course, there is a tremendous amount of speculation. People thought there might be a verdict last night. At this point, I think everybody knows that there is nothing we can do but wait.

VAN SUSTEREN: Ron, give me the basics on New York law. They are not charged with first-degree murder but with second-degree murder, and the choice is either murder with intent to cause death or depraved indifference. What does a lawyer tell a jury the difference between those two are?

RON KUBY, CRIMINAL DEFENSE ATTORNEY: Well, regular second-degree murder in New York very simply is murder -- it's killing a human being with the intent to kill them; the unjustified killing of a human being. It means that the officers intended to kill Amadou Diallo when they shot him, and they weren't justified in doing so. The other type of second-degree murder is what's known as depraved indifference murder. That's when there may not have been a specific intent to kill. Maybe they were just trying to stop him. Maybe they didn't care whether they killed him or not. But their actions were so reckless as to constitute such a gross deviation from what we would expect human beings to do that it constitutes depraved indifference to human life. Both of those...

VAN SUSTEREN: How do you define that though? I mean, that is so reckless. I mean, like, what does a lawyer tell a jury? Because, I mean, you go through these instructions and they sort of, in some ways, make sense, but then when you make the practical application, you know, frankly, there is no bright line.

KUBY: Greta, you know, all of us who have been through law school know that in the average law school curriculum we spend about a month and a half trying to draw the distinction between recklessness, between depraved indifference, recklessness that rises to the level of depraved indifference and mere negligence. These are extraordinary difficult concepts for lawyers, for law students, and they're almost incomprehensible to the jury.

COSSACK: So, Ron, what does that mean? Does it mean that the jury in this situation would, perhaps, be free to come up with whatever conclusion of these many, many charges that are given?

KUBY: Well, they are. And, in a sense, Roger, they always are free to do that. The essence of this case I don't think is the definition of the different kinds of homicide. The essence of this case is, what would a reasonable person in the officer's position have done knowing what they knew and seeing what they saw? And I think that that really, in many ways, is a policy question for the jury. If you're willing to say it was reasonable to shoot first and ask questions later, you're going to have a lot more dead civilians.

On the other hand, if you say the police officers should have hesitated, it was unreasonable to fire then, the cops turn around and say, well, you're going to have more dead police officers. The resolution to that question inherently is the conscience of this particular Albany jury that, unfortunately, doesn't have to live with the type of policing that they're going to decide is all right or not all right.

VAN SUSTEREN: Maria, you describe this case as a very controversial one. There's been a lot of media interest, public interest. Is there still a tremendous amount of interest in Albany about this case? Are people travelling to Albany to watch this?

HINOJOSA: There have been people coming up from New York City just about every single day. And pretty much every single day, there have been some kind of demonstrations out here in front of the courthouse. Just a few days ago, there was the largest pro-police rally. And even though the issue of race did not come up inside the courtroom, it has come up outside. The pro-police demonstration pretty much all white. The demonstrators coming up from New York, and locally here, mostly people of color. So it has been and continues to draw a tremendous amount of attention even though it's here in Albany.

COSSACK: Maria, has the judge given any indication how long he's going to let this jury stay out?

HINOJOSA: No indication, but considering Judge Teresi, he has such tight control over his courtroom. There has been some thought -- people talking, well, do you think they're going to get Sunday off? My sense: They're not going to get Sunday off, they're not going to get any days off until they finish. He will not be even allowing them to come up with a hung jury. He will continue to press until they come up with a verdict.

VAN SUSTEREN: Maria, where are the police officers as they await this verdict?

HINOJOSA: The police officers and the Diallo family are separated by two floors, the Diallo family on the second floor on one side of the courthouse; on the other side of the courthouse and up two floors, the police officers and their family. Just like in the courtroom, divided by both sides -- divided right down the middle with the Diallo family and the police officers and their supporters. Mrs. Diallo told me just a few days ago that, for the first time, she peered out from her seat and looked at Sean Carroll directly in the eyes. She had never done that before, peering out from her seat. Very, very tense inside the courtroom, and outside as well.

VAN SUSTEREN: Maria Hinojosa, thank you for joining us today from Albany.

And up next: the jury. Stay with us.


Defendant Richard Murphy, who fired at Amadou Diallo four times, had never used his weapon before in his five years on the police force. Unlike his co-defendants, Murphy never had a complaint filed against him with the Civilian Complaint Review Board.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log-on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via Video on-Demand. You can also interact with our show and even join our chat room.


Tennessee lawyer Leroy Phillips Jr. is in court today, arguing to have a century-old conviction against a black man vacated. Phillips and "Dallas Morning News" reporter Mark Curriden co-authored "Contempt of Court," which chronicled the trial of Ed Johnson, the only criminal case ever heard by the U.S. Supreme Court. Johnson was sentenced to death for a 1906 rape. But the Supreme Court issued a stay, prompting a lynch mob to pull him out of jail and hang him off a Tennessee bridge.


VAN SUSTEREN: In an Albany, New York, courthouse today, a jury is deliberating the verdict for four New York City police officers who are charged with murder. The jury is made up of seven white men, one white woman and four black women.

Chet, this shooting -- I'm not going to call it a murder, that's for the jury to decide whether it was or was not -- occurred in New York City. Why is this being tried in Albany?

CHESTER MIRSKY, CLINICAL LAW PROFESSOR: Well, the case is being tried in Albany because the jurors in the Bronx were seen -- the potential jurors in the Bronx were seen as unfit, as people who could not sit and deliberate fairly and impartially because of the publicity that had occurred there and because of feelings people had about the police in the Bronx.

VAN SUSTEREN: What makes a jury pool unfit? I mean, how do you -- what is it that -- why can't they be fair? Why can't they set it aside?

MIRSKY: Well, you know, I think the decision was a decision which did not have an empirical basis, as most of these decisions are made by courts who look at the publicity and come to their own conclusions as to what people in the Bronx might be feeling about these officers and about this case, about this shooting. I don't think the judge is -- who decided this, and it was an appellate bench that decided it, reversing the lower court who found that the case could be tried in the Bronx, I don't think the appellate bench had any particular information about the Bronx other than their own personal views.

VAN SUSTEREN: So was it wrong?

MIRSKY: Yes, it probably is wrong, and the reason it's wrong is because the demographics of Albany and the people who are in Albany are so far different from that in the Bronx that it sort of makes a mockery of the jury system. I mean, after all, I live upstate in New York, I live in a small town just halfway between New York City and Albany, and most people in the town that I live in think that going to New York City itself is very problematic because it's the crime center of the world. They think it's a dangerous place. Their views of police in terms of assuring the safety of the streets in New York are that the police should do whatever it takes to control the streets.


MIRSKY: To put this trial up in the -- to put this trial up in Albany, it seems to me, is to deprive the people of the Bronx the opportunity to participate in a process in which one of their own was shot, and it seems totally unfair.

COSSACK: All right, Gilbert, as a jury consultant, let me ask you to analyze this situation in terms of what Chet just said. If I'm a defense lawyer, you know, I'm concerned that because of the high feelings and the heated, passionate feelings that may be in the Bronx I can't get a fair trial. What are you, as a jury consultant, what would you do and how would you advise me?

GILBERT CALVILLO, TRIAL CONSULTANT: I think it was an astute decision for defense counsel to choose a different venue, to take it out of that particular area so that they could have an opportunity, perhaps, to have a greater number of jurors that haven't been impacted by the pretrial publicity, which has been ongoing and quite pervasive. And it allows to find a venire, perhaps, that will be more fair and impartial.

VAN SUSTEREN: But Gil, I mean, how should that be done? I mean, this case initially belongs in New York City unless there is a reason that the pool cannot be fair, and there's got to be some sort of scientific or at least some effort to empirically establish it's unfair before we take the dramatic step to remove it. How should that be done?

CALVILLO: Well, in my experience and what we do as jury consultants is to conduct telephone surveys. We try to sample a substantial portion of the population at issue and to find out what the -- how the pervasiveness of the particular issues have been impacted or have impacted these jurors. We ask what they know about the case, whether or not they've formed any decisions about the guilt or innocence of the defendants, whether or not they can be fair and impartial. So we try to measure their sentiment in terms of biases and prejudices to be able to come to some sort of conclusion that it needs to be -- and perhaps taken into another venue where those issues will be sort of extracted.


KUBY: Excuse me, could I interject just a small note of life in the real world here. This decision was about race from beginning to end. The fundamental question the defense is asking is, are you willing to put up with a dead, innocent black civilian or a dead police officer, and I have to tell you, white and black people differ dramatically in response to that question, and the people in the Bronx know the street crimes unit, know the way that they oppress the community, know the way they make stops and searches illegally, know full well that when the police run up on them at night they're not like the limousine driver in the Grey Poupon commercial: Oh, excuse me sir, New York City Police Department, might we have a word with you. They know that testimony is untrue. That's why the defense, quite rightly, wanted the case tried by a predominantly-white jury that is apt to give police officers much more latitude, especially when it's not them and it's not their children that are being shot down.

VAN SUSTEREN: Ron, you talk about street crimes unit and the sort of the reputation that they have in a particular, of which I'm not familiar, I don't live there. But when we look at this case, we need people to be dispassionate and look at the facts of this case, not the street crimes units but what these officers did or did not do.

KUBY: Dispassionate is perfectly fine, but just as the police officers' entitled to the benefit of the doubt, the people of the Bronx are entitled to judge the police officers who live and work on their streets. And dispassionate doesn't mean blind or stupid, and the people of the Bronx know full well that the testimony that the officers gave about the way they approached Amadou Diallo is completely absurd, not based on passion but based on their own live's experiences.

COSSACK: Ron, we have to take a break, but -- and we're going to, but when we come back, I want to ask you this question: Is it -- should the police be treated differently as a defendant than individuals and others if there's passionate prejudice against them? Hold on it; we'll take a break.

Up next, because the jury is weighing a number of possibilities, including second-degree manslaughter and criminally-negligent homicide, do the defendants in this case face a sentence of even probation? Stay with us.


Q: What did the judge in this case, Judge Joseph Teresi, do before he was appointed to the bench in 1994?

A: Teresi was a public defender for 21 years.



COSSACK: Four New York City police officers are being tried for murder in the case of African immigrant Amadou Diallo. An Albany jury continues to deliberate their verdict today, but they could be considering a lesser charge.

Ron, before we broke, I wanted to ask you your feelings about whether or not the police, because of the special relationship they hold with the community, should be treated differently under the criminal justice system? Or four individual defendants, I suppose, is what I should say?

KUBY: Look, I don't think there is a basis to treat them any differently. Unfortunately, they get treated differently in a far more deferential way.

The notion that this is a difficult job and they are entitled to the benefit of the doubt, well, that's all fine and good. But what they invariably end up with, particularly when you are talking about white police officers who end up committing crimes or are charged with crimes in the minority community, they don't opt for trial by the jury of the decent people whose streets they patrol; they opt for trial by a white judge.

They try desperately to get out of the Bronx because they didn't want to be tried by the honest citizens of the Bronx, and to get before a group of white people, whose position, basically, is one of sympathy for the police. Well, that is just as prejudicial.

The notion that all cops are good, decent, honest people doing a hard job, that's just as much of a prejudice as the notion that the police should be viewed with suspicion.

COSSACK: All right, Chester, let's talk about the process that this jury is going through to make this decision. What is the process? And what do you think is motivating this jury?

MIRSKY: Well, as you can see from what Ron Kuby just said and from what we've read in the press, this is a highly polarized case. It's ideologically going to be difficult for the jury to reach a result.

Remember, the judge gave them four hours of charges; the smorgasbord of murder charges and homicide charges from murder to manslaughter to criminally negligent homicide. In addition, the judge charged them on a series of self-defense type charges that the officers may have acted reasonably because they feared imminent bodily harm; or that they believed they were apprehending and needing to shoot someone in the commission of a felony; or that they thought a robbery was in progress and that they were acting properly in using their weapons.

Now, with a wide smorgasbord of this sort, a jury can decide whatever they want to decide. And what you have on top of all this is a standard of certainty called "proof beyond a reasonable doubt," which for years the courts have never been able to define with any degree of certainty.

It, therefore, becomes a subjective call. And the jurors, while told you've got a narrow job here to do, you can only operate within the determination of what the facts are, are actually forced to enter into an ideological arena of competing assumptions about the proper roles of the police.

The unfortunate thing about it is that the idea behind American juries was not to have a case like this tried in a foreign county like Albany, but to have it tried in the local area. To that extent, Kuby is correct. To the extent that the people in the Bronx would jump one way or another about police, I'm not altogether certain.

VAN SUSTEREN: Ron, I can understand...

MIRSKY: I don't know that there is empirical evidence about that. But, certainly, the ideological debate would be different in the Bronx than it would be in Albany. And I think that was the purpose of having American juries to begin with.

VAN SUSTEREN: Ron, I'll tell you what would make so much of a difference to me in a jury, without hearing all the evidence, let me at least go out on a limb. If the police officers, if one police officer, as he testified -- if I believed that he yelled "gun" and everybody shot quickly because they were in the fear, that would be, as tragic as this is for the Diallo family, a case where I don't think they acted with the intent to commit murder. Is that the critical issue in your mind or not?

KUBY: No, no. I mean, there's no doubt that subjectively Sean Carroll, when he shouted "gun," there is no doubt that he subjectively believed that he and his brother officers were in danger. But, that's not the test. Before you can kill somebody, before you can slaughter somebody, your belief has to be objectively reasonable. And the problem is, and Sean Carroll made that very clear, he was far more concerned with protecting his partner than he was with protecting a potentially-innocent civilian. And, ultimately, the policy question that has to be resolved, that this jury is resolving is: What is the job of the police?


KUBY: Are they primarily there to protect each other and to protect themselves, and the rest of us come in third or fourth or fifth? Or is their primary job and obligation to take the chance and protect that innocent life, that innocent Amadou Diallo?

VAN SUSTEREN: And I have to cut you off because, unfortunately, Ron, that is all the time we have for today.

Thanks to our guests and thank you for watching. And throughout the day, CNN will continue to follow developments in this Diallo trial. And, as soon as CNN learns the verdict, we'll report it to you. And don't forget to tune-in at to "TALKBACK LIVE" today. Their guest, the Reverend Al Sharpton.

COSSACK: And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.


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