February 17, 2000

Diallo Defense Rests

Lesser Charges Eyed

By TARA GEORGE
Daily News Staff Writer

ALBANY--As the defense rested its case yesterday in the Amadou Diallo trial, prosecutors asked that the jury be given the option of convicting the four cops of lesser charges than murder. Defense lawyers had no objection to the request, which includes charges of manslaughter and criminally negligent homicide — raising the possibility the four accused cops could be found guilty but still avoid incarceration.

Bronx prosecutors refused to say why they asked Justice Joseph Teresi, who is expected to approve the request, for the "lesser includeds."

When the jury gets the case after Tuesday's closing arguments, they likely will weigh six charges with sentences ranging from life in prison to no jail time at all.

Murder is still the top count. Criminally negligent homicide would be the lowest, carrying a maximum punishment of four years and a minimum of probation.

Defense lawyers said the addition of the less-serious charges was not a lack of confidence in their case, but a sensible legal safeguard.

"We don't obviously concede for a moment that it's anything less than not guilty," said Stephen Worth, who represents Officer Edward McMellon.

Worth's comments came yesterday afternoon as lawyers emerged from the Albany County Courthouse having rested their case after the trial's ninth day of testimony.

The highlights of the defense case came earlier this week with the powerful, sometimes emotional, testimony of the four defendants.

The cops touched upon common themes: They identified themselves as police officers; they were unable to see Diallo clearly because of poor lighting in the vestibule where he was standing; they believed Diallo had a gun.

And all said they reacted with shock and emotion when they realized that Diallo was holding a wallet, not a gun.

The last of 18 defense witnesses was Dr. James Fyfe, a former cop and expert in police tactics and training.

The defense called Fyfe last to end on a crucial theme of its case: that Officers McMellon, Sean Carroll, Kenneth Boss and Richard Murphy behaved as they were trained to when they approached Diallo on Feb. 4, 1999.

Fyfe, who normally testifies against cops on trial, told the jurors that the four were practicing textbook policing that night.

He agreed that peering out of a dim vestibule — as the cops said Diallo was doing when they noticed him — conformed to the Police Department's definition of suspicious behavior, adding that the cops were right to check him out.

In fact, Fyfe added, the cops could have been sanctioned by the department for failing to pull their car over at the sight of someone acting in such a manner.

Fyfe, who consulted on the Rodney King case, also said Carroll and McMellon followed training guidelines by pursuing Diallo into the vestibule after, as the cops say, he ignored their commands to stop and fled into the building.

"If he is, in fact, a bad guy, then things can only get worse," said Fyfe, a professor of criminal justice at Temple University in Philadelphia.

He was not, however, permitted by the judge to give his opinions on the cops' behavior once they started firing, nor about the speed at which their weapons fired.

Prosecutors declined to cross-examine the defense's last witness. They also decided against putting on a rebuttal case, setting the stage for closing arguments to begin Tuesday.

The cops have pleaded not guilty to charges of second-degree murder, depraved indifference murder and reckless endangerment.

If convicted of second-degree murder, the officers face a maximum of 25 years to life in prison. First-degree manslaughter — intent to cause injury resulting in death — carries a maximum sentence of 12 1/2 to 25 years.

For depraved indifference, options would be second-degree manslaughter — recklessly causing death — which carries a maximum sentence of five to 15 years; or criminally negligent homicide — failing to perceive the risk of death — which carries a maximum of 1 1/3 to four years.