4 Officers' Trial Moved to Albany

By AMY WALDMAN

An appellate court yesterday ordered the trial of the four officers charged with murdering Amadou Diallo to be moved to Albany County, ruling that "the public clamor" over the case made a fair trial in the Bronx impossible.

In a written decision, the five-member panel of the Supreme Court Appellate Division ruled that "this case cannot be tried in Bronx County, or anywhere else in the city of New York, without an atmosphere in which jurors would be under enormous pressure to reach the verdict demanded by public opinion." The trial had been set for Jan. 3, but will now almost certainly be postponed.

The Feb. 4 shooting of Mr. Diallo, who was unarmed, in a barrage of 41 bullets outside his apartment in the Soundview section of the Bronx led to mass demonstrations against the police, including huge rallies outside police headquarters in which celebrities and well-known New Yorkers were among more than 1,000 people arrested. To many, the killing was proof that the police overreact harshly with minorities—Mr. Diallo was black, and the officers who shot him are white. The events have been the subject of intense news coverage.

The court decision, which cannot be appealed, noted that moving a trial in a major case is "an extraordinary remedy reserved for the rarest of cases," but added that the shooting of Mr. Diallo "is that rare case."

The appellate court ruled, "We conclude that this case has been deluged by a tidal wave of prejudicial publicity to such an extent that even an attempt to select an unbiased jury would be fruitless." It cited several news accounts, including a cover of The New Yorker that showed a smiling police officer shooting at a cutout target in human shape with the words "41 shots, 10 cents."

The court's ruling was immediately denounced by prosecutors and by Mr. Diallo's family.

"I could not disagree more strongly with the court's decision," the Bronx district attorney, Robert T. Johnson, said in a statement.

"What makes this decision particularly disturbing is that absolutely no effort was invested to even attempt to empanel a fair and impartial Bronx jury."

Mayor Rudolph W. Giuliani reacted to the decision with a vigorous defense of the police force, which he has often said has been unfairly judged. "The rhetoric made it appear as if they were absolutely guilty and there's no question about it," Mr. Giuliani said at a news conference. "Whether that's true or not, you're entitled to a fair trial, and I think the judges said, 'We're going to treat police officers the way we treat all other human beings. They're entitled to a fair trial also.' I think a number of people do not treat police officers as human beings."

The court's decision, the statement concluded, "reflects a lack of trust of the jury selection process in general and of Bronx jurors in particular."

Mr. Diallo's parents also expressed dismay over the decision.

"We waited all this time for justice," Saikou Amad Diallo, the victim's father, said at a news conference at the National Action Network, the Harlem headquarters of the Rev. Al Sharpton, an adviser to the family. "It will be harmful to me and my family to travel to this place where we've never been."

Kadiadou Diallo, the victim's mother, was also upset by the decision. "We don't want our agony to be prolonged. We want justice. This is not fair."

But the president of the Patrolmen's Benevolent Association, Patrick Lynch, hailed the decision, calling it "an opportunity for these four officers to have a trial that is judged on the facts, not the politics or other folks' political agendas."

Police Commissioner Howard Safir said, "The court decision speaks for itself."

The four officers—Sean Carroll, Kenneth Boss, Richard Murphy and Edward McMellon—are each facing two counts of second-degree murder and one count of reckless endangerment. In a motion filed last month, their lawyers argued that the amount of publicity and the demonstrations had irrevocably tainted the jury pool in New York City.

They also cited the "conventional wisdom" that police officers cannot get a fair trial in Bronx County, which is mostly black and Hispanic. Since at least 1991, every officer facing felony charges related to excessive force while on duty in the Bronx has asked for his case to be heard by a judge, rather than a jury.

The decision did not mention the option for a bench trial by a judge.

"The constitutional guarantee of the option of a jury trial is effectively precluded to these defendants," said the motion, which was written by Bennett M. Epstein, a lawyer for Officer Carroll.

The officers' lawyers had suggested they were leaning toward asking for a trial by a judge in the Bronx. In Albany County, however, they are likely to go before a jury.

The prosecution had said the defense had taken news coverage out of context, omitting some that was favorable to the officers. It said the notion that officers could not get a fair trial in the Bronx was "unfounded and unsupported."

But the court agreed that the "incessant drumbeat" of publicity was likely to influence jurors. It cited three examples that showed the tenor of the coverage: The New Yorker cover, a New York Post column that repeated the word "bang" 41 times, and an advertisement by the American Civil Liberties Union that displayed 41 bullet holes along with the Miranda warning, which begins, "You have the right to remain silent." The advertisement goes on to read, "On Feb. 4, 1999, the N.Y.P.D. gave Amadou Diallo the right to remain silent."

The five judges, all of whom were appointed by Gov. George E. Pataki, said they had decided to move the trial to Albany because it is an urban county and is not home to large numbers of New York City law enforcement officers. After surveying census data on several counties with "a reasonable degree of ethnic diversity," the court selected Albany.

Federal census figures from 1998 show that Albany's nearly 300,000 residents are 85.8 percent white, 9.2 percent black, 2.7 percent Asian and 2.3 percent Hispanic.

The Bronx's 1.19 million people are 48.3 percent Hispanic, 29.4 percent black, 18.6 percent white and 3.7 percent Asian.

Defense lawyers were "dumbstruck," one said, by yesterday's decision to move the trial, and also delighted. "It is a big victory, a big victory," said Steven Brounstein, the lawyer for Officer Boss.

"Now, hopefully, we'll get a fair trial."

The officers were uniformly described as pleased by the news that the trial would go to Albany.

Mr. Patten, however, noted that Mr. Carroll was dealing with the news that his father had suffered a stroke yesterday morning in Long Island and had to be hospitalized.

Stephen C. Worth, the lawyer for Officer McMellon, said that his client "was as surprised and pleased as we were that the Appellate Division had responded to our argument."

But James J. Culleton, the lawyer for Officer Murphy, said the officers had been damaged from the publicity in a way that the change of the trial's location could not fix.

"The severity of this indictment stemmed directly from the pretrial publicity," he said.

Mr. Sharpton, who led the demonstrations in which former Mayor David N. Dinkins and the actress Susan Sarandon were among those arrested, called the decision outrageous and unprecedented.

"If you're a police officer in the Bronx, how come you can't be tried in the Bronx, where you have arrested people and had them tried?" Mr. Sharpton asked, adding, "They cannot disenfranchise a whole county."

In its decision, the court specifically singled out the wave of demonstrations that Mr. Sharpton had led, and which he promised would be repeated outside the courthouse once the trial got under way, as one of the factors that had created a prejudicial climate.