The Diallo Cops on Trial: 41 Shots Is Too Many

| 16 Feb 2015 | 04:51

    "Hey, asshole, you just missed my car," the beefy white guy hollered. "Why don't you slow down, you idiot?" He stepped out of his car, but went no further.

    "Don't call me an asshole," the Hispanic guy shouted back. "You piece of white trash. You the asshole." He opened his door, but also stayed where he was.

    Looking into the backseat of the Hispanic man's car I could see a frightened three-year-old boy. His eyes registered terror. A minute later the combatants climbed back into their cars. As the Hispanic's car pulled out, the little kid gave me a wave. I waved back. The future of New York just met New York's past and New York's present, I thought.

    It's one long, brutal 150-mile drive to Albany in the dead of winter.

    Cold gray sky and the road all dusty with rock salt?the only color on the New York State Thruway is the green of the exit signs. I put on Iggy Pop's "Lust for Life" and rolled down the window to get some of that pure, dry air. Such a hard blast of upstate oxygen hurts a city person's lungs. Then, as dusk fell, I saw the Albany skyline?glowing towers and that odd-shaped building they call the Egg.

    I drove around the capital city a bit, just to get acclimated. Wound up in a ghetto area: some boarded-up buildings, the roads poorly paved. Elusive figures darted into alleyways. A bearded white guy walked slowly up a hill, pushing a shopping cart. I pulled over to get a soda at a deli and asked the black kids standing out front, wearing do-rags against the cold, what they thought about the Diallo trial's being sent up here from the Bronx.

    "Yo, man we got enough problems with the police around here," said one kid, squaring his shoulders. "Diallo? What you want to know? Why they shoot him 41 times? You got no answer, so why you asking us?"

    They told me how hard-assed the Albany cops are, and then I headed back to my car to resume my tour. I made my way to the Eagle St. courthouse, where the Diallo trial's being held. There's a traffic circle there, with a bronze statue of Maj. Gen. Philip Schuyler in flowing cape and long saber, with his arms folded across his chest like he's ready to defend Albany himself. As I neared the courthouse, I stopped by the metal barriers that blocked the street. A cop ran up to my car.

    "Move your vehicle! Move your vehicle now!"

    He was big and young, and wore a dark parka and a buzzcut under his Smokey hat. Mind you, this was Sunday night, and there was no one in the street but me and a bunch of cops.

    "Excuse me, Officer, is that Eagle St. courthouse?"

    He glared in at me. "I told you to move your vehicle. I'll issue a citation if this vehicle is not moved immediately."

    This guy was a cyborg. I moved my vehicle, fast.

    "Lawyers, Guns, and Money"?that's a great Warren Zevon song, a great tale of trouble, and I kept listening to it in my car as I drove around Albany. Poor Amadou's dead now, but you bet his family's got plenty of lawyers. Guns they may or may not have, but when this case reaches a verdict or settlement in civil court, they're sure going to have a lot of money. So will their lawyers.

    Since Albany's the state capital, you forget that it's really a small place, with a mere 101,802 hardy souls. I found myself surprised by the place's provinciality?I guess it offends my native New York City resident's sense of entitlement to learn that I pay state taxes into a place where the main newspaper, the Albany Times Union, might run on its Sunday sports cover a story about bowling, as it did when I was up there. The newspaper's crime blotter was full of small-city incidents that would look quaint to someone with a big-city mentality. Someone had reported a garbage bag being thrown on his car. A man had pushed another man in a traffic dispute. Someone pelted a woman with a snowball.

    I called William Kennedy, the Albany native and novelist who wrote Ironweed, among other books. I asked him if there had been any precedent for what happened here, where New York City sent a case up for the good folks of Albany to sort out.

    "Well, there is none that comes to mind," he told me. "I can't remember any recent precedents. But back in the 30s, Dutch Schultz's case was sent up from the city to Malone, and Schultz basically bought the whole town off, so he got off. Legs Diamond's case was sent to an upstate town, but the lawyer he hired was the big man, and again that got him off."

    Albany's 15 percent black, so the fact that there are four black jurors on the Diallo jury means that the community's getting a fair shake. But in my four days in Albany, I saw only one black cop?and in Albany, as I've implied, you see a lot of cops.

    I visited a random little Irish bar on the edge of town. The owner, a female bartender and a patron named Phil sat alone together in the room. They were all middle-aged, Irish and eager to talk about the Diallo trail.

    "Well, I am glad I wasn't put on that jury," Phil told me. "I don't think bad of all cops, but how do you explain 41 shots? Damn, that's a lot. I don't think they're going to let them walk."

    He had an interesting accent, and I asked where he was from.

    "Grew up in a hick town called Berlin. I moved to Troy, which is right over the river. Troy is a shithole. Then I moved to Schenectady, which is just a bigger shithole than Troy, and now I live in Albany, which, if you can believe it, is the nicest city around here."

    The bartender joined in: "Yeah, this is a nice city, but we're worried about this trial. The blacks here will riot if those cops go free."

    I asked why a New York City case would cause a riot in Albany.

    "Things are tense around here. Lot of crime, and then the blacks say the cops abuse them and then crime goes up."

    I chuckled. Crime? In Albany?

    The owner said in his deep, solemn voice: "We have plenty of crime here. We had 12 murders or something here last year."

    That's nothing, I said.

    "Yeah, but this is a small city."

    Point taken: if Albany were the size of New York, it would have about 1000 murders a year.

    The discussion shifted to which cops were guiltier than others. I described Sean Carroll to Phil as the cop who maybe yelled out, "Gun!" at the beginning of the altercation, and then fired 16 shots.

    Phil looked up at the ceiling. "Is he the bitch that's always weeping on Court TV?"

    Before I left for Albany I tried to get some inside dope on this case from my law-enforcement contacts, but I'd drawn mostly blanks. I knew that the Bronx D.A. had overcharged when he slapped Murder Two on all four cops. It would be hard to prove Murder Two: you would need to show intent to kill, and/or depraved indifference. No one I hit up wanted to talk about this baby, either on or off the record. Bring it up with people, and they start looking shifty and paranoid?because depending on what they say and what happens, their careers and reputations could be on the line. The only good scuttlebutt I got was that Sean Carroll was referred to as a "Long Island Cowboy" among his peers. He wasn't very well liked?he was a guy who needed major back-up in order to play the tough guy. There's also the sense among people in New York that Carroll should have fallen on his sword, taken the rap so that the other guys could have avoided Murder Two charges.

    The next day I walked down to the Eagle St. courthouse. Busloads of blacks from New York were already on the steps. It would take 10 minutes for them to get through the metal detectors.

    I decided to grab a cup of coffee. Five blocks from the courthouse I sat at the counter next to a black man named Garry. He was a pleasant enough guy in his late 20s. I asked him what he thought about the trial.

    "Man, the police up here are fucked up," he told me. "In Albany we have enough problems with them without worrying about New York. I work two jobs, so I don't even have time to follow what's going on, but you know what? I don't care. It's bad enough up here."

    Back on the sidewalk outside the courthouse five cops stopped me and asked me my business. A lot of the cops up there were like Rudy Giuliani on speed: tight as drums, like they were afraid that New York interlopers would overrun and destroy their town. As soon as they approach you they're treating you like you're a felon. I ran into some New York City court officers who'd been sent up to help out with security, and I don't think I've ever been so happy to see New York City guys and gals. Think what you want about New York law enforcement people, they're a lot more relaxed and easier to deal with then their upstate peers.

    I was so late showing up that I was forced into the overflow room?the so-called scrub room?a chamber one floor below the actual courtroom, bearing two big-screen televisions. It was like watching Court TV in a courthouse. The place was packed with Brooklyn activists, many of whom are acquaintances of mine. I got a few hard glares, a few hellos.

    Ida Vincent, a 25-year-old Bronx mother of four, was on the stand describing how she was awake and coloring in her kid's coloring book when she heard three or four gunshots, then a pause, then another burst of gunfire. The D.A. had her knock out the sounds on a table. Vincent was a great witness, well-mannered and calm. She claimed that the only thing she heard after the gunfire was someone saying, as she put it: "Oh s-h-i-t! Okay, okay. We just want to say this."

    The D.A. asked her if the voice spelt out "s-h-i-t" or said "shit."

    "He said it."

    "But you spelt it because you don't use profanity, correct?"


    During cross-examination the cops' lawyers tried to undo some of her testimony, but Vincent was a rock.

    The gallery in the scrub room downstairs started muttering.

    "Why didn't they yell 'Police!'? They just opened up on the brother!"

    Next, the defense tried to put the neighborhood of Soundview on trial, tried to make it out like it's a rat-infested jungle. Vincent, who lived right next door to Diallo, maintained that her block was quiet, and that there was no significant police action on it during 1998. On a table in front of a jury stood a model of Diallo's block: rows of unattached two-story brick houses that resembled the houses in half of Albany's neighborhoods, even the good ones. Nonetheless, the defense bull-headedly hammered away at Vincent, trying to get her to admit how dangerous Soundview is. I thought they were about an inch away from the White Man's Burden defense, from insisting that the cops had to do what they'd done in the interests of bringing civilization to the dark heart of the Bronx.

    "These guys are tricky," said an old black man in the last row. "Tricky, but not smart enough. Forty-one bullets is all I need to hear."

    And he'd keep hearing it. The prosecutors were bent on getting the numbers "19" and "41" into the record as many times as they could. As they only have ear-witnesses to present, and a coroner, the numbers are crucial.

    As Vincent's testimony wore down, Sean Carroll hit his water cup pretty hard. If you saw Carroll walking down the street, you'd think he was a teacher, or a Wall Street guy. Ed McMellon sat calmly, looking like a pretty tough cop. Kenneth Boss' face was perpetually stunned and Richard Murphy, a 27-year-old Queens man, just sat with his head down like he was doing afterschool detention.

    I wondered if Boss and Murphy would rather have had separate trials. Boss squeezed off five shots and Murphy four?relatively few, that is?and just after they'd heard supposedly one cop yell "Gun!" and watched another fall to the ground.

    Next the D.A. called Det. Kevin Barry to the stand. Barry's a huge man who looked like he'd rather have been anywhere else but there, in that courtroom, testifying as a ballistics expert, sweating. What action, the D.A. asked over and over, does a cop have to perform to discharge a bullet?

    Barry: "Pull the trigger."

    D.A.: "Each time?"

    Barry: "Yes."

    The court broke for the afternoon, and Saikou Diallo, Amadou's father, came into the scrub room wearing a regal white African robe and a skullcap. He shook hands and thanked people for coming.

    Outside, cops patrolled the streets on huge draft horses. The law wasn't fooling around: everybody was going to know in no uncertain terms that there wouldn't be any nonsense.

    In the small park across the street, some people on a small wooden stage sang, "I feel better since I laid my burden down." Black men clapped hands in time, wearing warm clothing and badges reading "People's Justice 2000."

    Al Sharpton walked down into the camera bullpen to give his soundbite. "Hey Rev, did you read that article I did on you being a kung-fu expert?" I asked him.

    That stopped Sharpton cold, which isn't an easy thing to do. He's always in motion.

    "You wrote that?"


    "Yeah, that was all right. You're all right. I liked that. You never know, I might know some things. Next time call for the sports center. I'm going to pray. You're welcome to come."

    "Say one for Diallo for me," I told him.

    The bullpen was half empty when 10 PBA delegates led Terri Gillespie to the microphones. Gillespie's son, Kevin, was a Street Crimes Unit cop who got gunned down in March '96 in the Bronx when he hesitated to draw on a car thief. She always knew she would outlive her son, Gillespie said. The Diallo incident was an accident and a tragedy, she said, not a murder?though she understood the pain the Diallos were going through.

    Gillespie finished and walked away slowly into the gray afternoon. No one had paid much attention. A few cops followed her on a lonely descent down a hill.

    That afternoon, while the trial was in process, a 15-year-old Albany kid stole a schoolbag in another part of town and ran down Washington Ave., chased by a cop on foot patrol. The unlucky boy ran toward the courthouse and thus smack-dab into the phalanx of cops there. At long last, they had something to do. They tossed him in a patrol car and drove him away.

    Later that day I went into the city looking for people to talk with and to get something to eat. On Madison Ave. I walked into an establishment called Family Store II and talked with one of the owners, Steve, a 22-year-old black man.

    "How do I like Albany?" he asked me, rubbing his face. "It's all right. The police are kind of fucked up. There are only like three black areas in Albany, and cops have no respect for you if you live there. You should see them at night in the ghetto. That's why a lot of blacks stay off the street at night. They ain't afraid of crime. They're afraid of the cops."

    I worked my way back to the courthouse neighborhood and entered the Buttery Restaurant.

    "Most people up here think the cops are guilty," a waitress in her late 30s named Wendy told me.

    "Really, even most of the white people?"

    "Well, yeah, that's who mainly comes in here. I mean, 41 shots. Dead is dead, but come on now. I'd say most of us up here feel that way."

    I decided to drive into the heart of what I'd been told was Albany's worst ghetto?right down Clinton Ave. and into Arbor Hill. I'd been all over Albany by now, but Arbor Hill was supposedly hard-core. It wasn't really so bad. There are beautiful rows of garden apartments on one end of the neighborhood?some sort of successful urban renewal going on.

    The next day I got a good seat in Judge Joseph Teresi's courtroom. We all sat together, bleary-eyed journalists bracing ourselves for another brutal day in a hot courtroom on a hard bench. Everybody buzzed with gossip and speculation. Like: The judge is going to throw the case out because the People haven't proven their case. Or: Teresi is being unfair to the defense so the cops will be convicted, and then the case will be appealed. There seemed to be a general sense that Teresi was a loose cannon, a man capable of anything. My bet is that he's taking his marching orders from the higher-ups, and that those orders boil down to this: be quick, and get at least two convictions.

    The Diallos entered the courtroom, Mrs. Kadiatou Diallo stunning in her tribal garb. A relative sat between her and her ex-husband. They've made up for now, apparently, but not that much. The cops' families sat on the left-side benches, with the PBA guys behind them. On the right side was the Diallo family, Al Sharpton's entourage behind them. It was like the seating at an angry and stormy wedding, a wedding that neither family wanted to see go down. The jury?six men and six women, four of whom, including the jury foreperson?looked like a serious bunch. Their heads went back and forth between the lawyers and the witnesses like they were spectating a tennis match. I've seen a lot of juries, but probably never a more alert one.

    During a break, I talked with some local news guys who told me that there's growing resentment in Albany toward Rudy Giuliani for not putting in an appearance at the trial. Some said his absence would hurt his Senate chances. And if local Albany people were peeved at Giuliani for that, so were the 10 or 50 New York City cops who showed up every day to support their peers. Commissioner Safir hadn't shown either, and there was grumbling about that, too.

    I heard two cops in front of me talking as they read the Daily News: "Hey, Big Pun died. You know, I pulled him and Fat Joe over once in the Bronx, and it took like 10 minutes for them to get out of the car."

    That day, Dr. Joseph Cohen, who was the Bronx medical examiner back in February 1999, took the stand as the D.A.'s last witness. He described Diallo as a 5-foot-6-inch, 150-pound well-nourished 22-year-old man. A picture of Diallo's chest was projected on a screen while Cohen testified about the small bullet hole in the middle of Diallo's chest. Cohen claims that it was this bullet wound, which came early during the shooting sequence, that probably killed Diallo, cutting open his aorta, filling his chest with 45 percent of his blood and dropping his blood pressure. The bullet also perforated Diallo's spine, making him a paraplegic. Cohen claims that, after taking this fatal shot, Diallo fell to the ground.

    Then the D.A. got Cohen to say that at least three bullets had hit Diallo while he was down. The big screen now showed a picture of Diallo's right middle toe, and the hole where a bullet went in from the bottom and came out of the top.

    During cross-examination the defense tried to rally, offering Diallo's black sneaker into evidence?an old leather sneaker worn by a little man who, as a vendor, did a lot of walking and standing. Teresi had heard enough, and called a lunch break.

    Outside I stood on the courthouse steps and laughed as the tv crews grew discomfited. City Hall's 60-bell carillon was ringing joyfully, ruining the tv people's interviews. Those bells were the only beautiful thing in the day.

    Across the courtroom from me, Al Sharpton was nodding off.    The day came to an end with the People of the State of New York resting their case. Here's what they had: ear-witnesses, a couple of unhelpful cops and a coroner. No eyewitnesses.

    The next day Judge Teresi, a pudgy little man with the air of a bully about him, angrily warned the defense that they'd better get on with their case.

    With a few rushed phone calls, they did. They brought on a cop, and then a black investigator, neither of whom did much for the men on trial. But, despite the screaming of the New York City dailies, these lawyers are old pros, and they knew what they were doing. All they had to do was sow some reasonable doubt in the jurors' minds and the Murder Two charges would evaporate. Then the case gets bumped down to manslaughter, which could still bury the cops, but who knows?

    Then came the defense's roll of the dice, as they called Scherie Elliott, the only eyewitness to the shooting?the one who had to be subpoenaed after she told Officer McMellon's lawyer, Stephen Worth, "I didn't want to speak to y'all."

    Why hadn't Elliott been called by the D.A.? Her surly tooth-sucking attitude on the stand probably had something to do with that?she represents the Bronx's underbelly, which the D.A. doesn't want the jury to see. She testified that she saw all four cops approach Diallo with their guns drawn. Someone said "Gun!"?it could have been the cops, or it could have been Diallo. Diallo, she claimed, hit the floor after the first few shots.

    Oh really? But back in March 1999, Stephen Worth knew, Elliott told a news reporter that it was a cop who'd yelled "Gun!" She also said that she couldn't believe how long Diallo had been able to keep standing while being shot. Also, Worth had in his back pocket that Elliott was a convicted drug dealer who may have cut a deal with the Bronx D.A.

    Worth cockily tried to get the news video in question into evidence, but Judge Teresi wouldn't allow it. But by trial time Thursday (on which day a squad of protesters stood in front of the courthouse waving signs reading "Free is Never Free," whatever the hell that means) Teresi had granted the defense's motion that Elliot was a hostile witness, thus giving them a wider latitude in their line of questioning.

    On Monday, furthermore, when 12 inches of new snow blanketed the city, the defense would show the jury Elliot's tv interview; they would also enter her rap sheet into the evidence, and any deals the D.A. made with her would be revealed.

    Suddenly the defense didn't look quite so dumb.

    On Monday, also, the big moment occurred: Sean Carroll took the stand. Finally, the cops would have a chance to try to explain those horrifying numbers?19 and 41?and to make the jury share some of the panic of that night in Soundview. Carroll testified that he was in the vestibule with McMellon and Diallo. Boss and Murphy were outside. The vestibule in Diallo's building is a 5-by-7-foot space. I've been in it. It's cramped. If you're in there with two other people, it feels like you're in a phone booth. Carroll testified that he shot because he thought Diallo was holding a gun in his right hand. It was actually his wallet. He testified, too, that McMellon, who was on his left, went flying backwards, leading Carroll to believe that his colleague had been shot. On cross-examination, the D.A. asked Carroll if perceiving that his partner had been shot had made him "angry." But Carroll couldn't be fazed, insisting, rather, that it had made him "fearful." He wept on and off throughout his testimony.

    Judge Teresi continued to rip through the trial at an incredible rate. In a decade of watching trials regularly, I'd never seen anything like this.

    As I left Albany I talked with a black man?a retired New York City cop, in fact, who now lives upstate. I asked him what would happen should this jury find the cops innocent.

    "The Bronx," he said, "will burn."

    "It already has," I reminded him.

    I walked to my car, ready to leave Albany and return to the scene of the crime.