Diallo Trial Strategy
The jury verdict regarding the four police officers tried for shooting Amadou Diallo to death has not ended many concerns expressed about the case. Nor should it. In order to ensure that this ongoing public debate is balanced and informed, I would like to take this opportunity to share my own perspective, which is based on more than 25 years of personal experience in the criminal justice system as a defense attorney, prosecutor and judge. In particular, I would like to address a number of the questions that have been raised concerning the way in which the case proceeded.
Critics have asked why no attempt was made to contest an appellate panel’s decision to move the trial to Albany. Under New York State law, a change of venue order by the Appellate Division cannot be appealed even if, as we believe in this case, the court’s decision was completely wrong. The judges ignored well researched legally sound arguments against the change of venue as well as a finding in the very poll that they cited in support of their decision. That poll, commissioned by the attorneys for the accused officers, reported that 70% of Bronx respondents said they could sit as fair and impartial jurors. Moving a trial before even attempting to empanel an impartial jury is virtually without precedent in this state. Indeed, the granting of a change of venue is so extremely rare that the decision of the appellate panel, in my opinion, has helped to erode the average citizen’s confidence in the criminal justice system.
Questions also have been raised about decisions concerning trial strategy such as cross examination of the defendants and other witnesses; whether "racial motivations" were issues that should have been raised; and whether the jury should have been taken to the scene of the shooting. People have expressed concerns that the defendants and their use of force expert, Dr. James Fyfe, were not cross examined more vigorously. While I was extremely pleased that this trial was televised, unfortunately many people think that real trials are just like fictional trials on TV. Thus, they expect that witnesses will break down on the stand and confess. In fact, this almost never happens in real life, especially when the witnesses are as experienced and well prepared as these.
As all trial lawyers well know, extensive cross examination often gives such witnesses an opportunity to reemphasize the best parts of their testimony and explain away the rest. Moreover, the officers could not be cross examined about their prior statements because they did not give any. Regarding Dr. Fyfe’s testimony, our major accomplishment was in successfully limiting the scope of what he could discuss in the presence of the jury. Through our legal motion and objections, Dr. Fyfe’s testimony was severely restricted. Moreover, he made it clear when he testified that it is good police work for officers to "back off" in some situations. Cross examining the expert would have allowed him to disavow that and other testimony helpful to us, and might have "opened the door" to potentially damaging testimony that we succeeded in precluding. Such a strategic error was made by the defense earlier in the trial. We used our summation most effectively – and without any such risk of response– to exploit points made in the officers’ cross examination and the expert’s testimony.
The decision not to overtly make racial considerations an issue at trial was the result of a lack of any concrete evidence to support such a claim. That would have increased an already heavy burden of proof that, by law, we were required to meet. However, we clearly made the point that the officers’ conduct was unreasonable because it was largely based on preconceived false notions about the totally innocent Mr. Diallo and his neighborhood. We also concluded that a visit by the jury to the scene of the shooting was unnecessary and contained an element of risk. The legal purpose of a visit to the scene would have been to have the jurors see the lighting conditions and the size of the vestibule. We accomplished that successfully through photographic evidence, a scale model of the scene and reference to its elevator- like size during summation. What’s more, based on their request for a measuring tape, the jurors presumably were aware of all relevant measurements during their deliberations. Beyond that, while some believe a visit to the scene by an Albany jury would have evoked sympathy for Mr. Diallo – not a legitimate legal basis for a scene visit – there was certainly a serious risk that it would have had the reverse effect because the upstate residents were unfamiliar with the neighborhood.
Finally, some of the criticism related to this case has been directed at my choice of attorneys on the prosecution team. The six lawyers who worked on this case full time for one year collectively have well in excess of 100 years experience in criminal prosecution. Lead counsel Eric Warner, Senior Executive Assistant District Attorney, has been in the Office for 30 years and successfully prosecuted the 2nd largest mass murder case in the nation’s history. Senior Trial Assistant District Attorney Donald Levin, assigned to the Investigations Division, has been in the Office for 25 years. In May 1997, Levin successfully prosecuted Police Officer Paolo Colecchia in the on-duty shooting death of Nathaniel Levi Gaines. Senior Trial Assistant District Attorney Paul Rosenfeld has nearly 20 years experience in the Office.
While these and other issues regarding trial strategy understandably will continue to be the focus of debate and discussion, I trust that no one will question our effort and commitment. Federal authorities will have our full cooperation as they review whether to charge the four police officers with violating the civil rights of the deceased. However, the larger context that surrounds this case– the way in which police interact and protect people in all of the neighborhoods they patrol - must be vigorously and continuously explored. By doing so, we will honor Amadou Diallo’s life, derive meaning from his death and ensure that this terrible experience is never repeated.
