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Burden of Proof

Police Officers on Trial for Killing African Immigrant; Sean 'Puffy' Combs Arraigned in New York

Aired February 7, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

ERIC WARNER, PROSECUTOR: A human being should have been able to stand in the vestibule of his own home and not be shot to death, especially when those doing the shooting are police officers.

BENNETT EPSTEIN, DEFENSE ATTORNEY: I am sure that his parents miss him and that they have suffered greatly. I'm sure that to them he was a saint, but ladies and gentleman, the evidence will show that he was a saint who felt compelled for reasons best known to him but that we hope to go into to avoid the police.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Four New York City police officers are on trial for second-degree murder. Did they kill an innocent man and conspire to cover up a crime or simply mistake him for a suspect with a gun?

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

In February, 1999, 22-year-old African immigrant Amadou Diallo was shot and killed at the doorstep of his Bronx home. The four shooters, all New York City police officers, were charged with, among other things, second-degree murder. Prosecutors allege the police made a conscious decision to shoot the victim without warning.

GRETA VAN SUSTEREN, CO-HOST: The defense says the killing of Diallo was a tragic mistake, claiming that the victim took out a black wallet which they claim looked like a gun. Because of pretrial publicity and protests alleging abuse by minorities -- abuse of minorities by New York police, the trial has been moved to Albany.

Joining us today from New York is criminal defense attorney Johnnie Cochran.

COSSACK: And in Albany, Susan Arbetter of WAMC public radio. Here in Washington, Robert Lambert (ph), former federal prosecutor David Schertler and Nadia Kramer (ph). And in the back, Jennifer Page (ph) and Susan Gill (ph). Johnnie, how unusual is it to move a trial from, say, New York City to Albany, and why was it done?

JOHNNIE COCHRAN, CRIMINAL DEFENSE ATTORNEY: Well, I think it's very unusual, and I think -- you know, it was extraordinary the fact they moved it, Roger, without even trying to pick a jury panel. New York City's a very diverse place with a lot of juries to pick from, but this court moved it and there was no appeal from that. I think that's extraordinary. It reminds of the Rodney -- first Rodney King case where they moved from downtown L.A. out to Simi Valley, and that is very unusual.

VAN SUSTEREN: Susan, take us back to February 4th, 1999, the day that Diallo was shot. What happened?

SUSAN ARBETTER, WMAC NORTHEAST PUBLIC RADIO: What happened was four members of the New York Police Department's elite street crime unit was in the Sound View (ph) section of the Bronx, and they were looking for a rape suspect on Wheeler Avenue. They found themselves at 1157 Wheeler -- that's where Amadou Diallo lived -- and Diallo had just spent the evening watching television on his couch and talking to his roommate about bill paying. He came downstairs into the vestibule of his apartment at 1157 Wheeler, and there was some kind of confrontation with the police, we don't know quite what that was yet, but the police thought that Diallo had a gun. One of them actually yelled "gun," and all of them shot 41 bullets into the vestibule, 19 of which hit Diallo.

VAN SUSTEREN: Susan, when you say that someone yelled "gun," is that the testimony of the police officers saying that happened or are their independent witnesses who heard a police offer yell "gun"?

ARBETTER: Independent witnesses say that they heard the officer yell "gun."

COSSACK: Susan, there seems to be a dispute about the lighting that was in -- that was in effect in the vestibule that evening. What's the testimony been with regard to the lighting?

ARBETTER: The lighting is a big deal, Roger, because it -- that's what is the crux of the issue regarding what the officers might have seen. Diallo, as you know, was an innocent man, did not carry a gun, was not the rape suspect. He didn't have a gun; he had a wallet. So, if the lighting was good in the vestibule, why didn't the officers see that it wasn't a gun, that it was a wallet. Diallo's roommate testified on Friday that the lighting was so good that he could read his mail, and other -- another lieutenant at the scene also testified on Friday that the lighting was good and the vestibule light was on when he arrived at the scene.

VAN SUSTEREN: Johnnie, where is the line between a horrible tragedy and second-degree murder? Where's that line with an officer?

COCHRAN: Well, I think that in this case the number of shots. I mean, clearly, as Susan said, this was a totally-innocent man, Mr. Diallo. He was at his -- he was going into his own residence. And in this situation, seems to me the officers acted really precipitously to stop him under these circumstances and then to start firing. He posed no threat to them, and I think that's why the district attorney, rather than go for manslaughter, charged these officers with murder, to shoot so many times for a man who apparently, you know -- I -- a wallet, I don't think, looks like a gun and whatever if they asked him to identify himself, if that turns out to be the facts, but I think that area is well lit, and I think that's what the evidence is going to be.

VAN SUSTEREN: David, you know, when you reach for something in your pocket, whether it's a wallet or a gun, the gesture could be the same. What may be a little bit troubling here is that there's 41 bullets. Does that make a difference?

DAVID SCHERTLER, FORMER FEDERAL PROSECUTOR: You know, it obviously is a fact that has gotten prominence in this case, but in the cases that I had examined as a former prosecutor, also as a defense attorney, no, it doesn't necessarily make a difference. We have some -- looking at it in 20/20 hindsight, we expect the police to behave in almost a robotic way, of measuring the situation as it escalates.

So, you're dealing with a situation that takes place in five seconds; all these shots are fired within five seconds, and you have experts on police conduct, on military -- on soldier's conduct who will tell you that when you perceive a threat to your life you have your adrenaline flowing, you react in a way where you fire as many shots as you think it takes to get rid of that threat, and that happens not just in this shooting but I've seen that happen repeatedly in a lot of other police shootings where they feel that somebody does have a gun. And in this situation, where you have two officers who fell, where the other officers might have perceived that those officers were actually shot, they're trying to get rid of this threat.

COCHRAN: Greta -- Greta...

COSSACK: Johnnie, that's where the defense -- Johnnie, that's where the defense is going to be in this case, was that this all happened within five seconds and that you can't take into consideration the fact that there were 41 shots. How do you respond -- how do you respond to that if you were the prosecutor?

COCHRAN: Well, clearly, I mean, I think this is -- you can't set up your own standard for self-defense. These officers escalated the situation, they stopped an innocent man. They can't use that, it seems to me, to set it up. But more than that, listen, when you fire 41 shots, maybe they're all fired in five, six, seven seconds, but let me tell you something: the testimony will be one of the first shots that hit this man severed his spinal chord and he went down at that point. When they kept firing at that point, that's when it escalated, and I think...

SCHERTLER: That's -- but Johnnie, that's the problem: They don't know that. You're talking about five seconds, and when the first hits the spine they have no idea... COCHRAN: No, no, no. Wait a minute, wait a minute. Wait. When the body -- wait a minute. When he falls -- listen to the ground they know that. But they're firing at the bottom of his feet.

SCHERTLER: Johnnie, they don't. They don't know whether this guy has now hit the ground and he's going to pull out a gun and start firing back at them or whether he's been disabled. They just don't know at that time.

COCHRAN: David, they're still -- David, they're looking at this man as they're firing, and that's why they shot him in the bottom of his feet and into his shin area, because -- and they have an obligation to stop firing at that point.

SCHERTLER: They...

VAN SUSTEREN: Let me ask you this -- Susan, let me ask you, did a neighbor testified of Diallo, and correct me if I'm wrong, that there was a volley of fire, a pause, and then a volley of fire. Is that correct, so it looks like their -- the police stopped for a while?

ARBETTER: That is correct. In fact, two of Diallo's neighbors testified to that, one on Friday and the first witness today, Ida Vincent (ph), both testified to a pause in the firing.

VAN SUSTEREN: David, doesn't that change, if there's a pause in the volley of the fire?

SCHERTLER: The way that I understand the defense is arguing the pause is that there were some initial shots fired and at that point two of the officers actually slipped and falled (sic), which led the others officers to believe that they had been hit by bullets fired by Diallo, that's why the other officers then begin to shoot further, disabling what they perceive as a man shooting at them.

VAN SUSTEREN: Johnnie, do you want to respond?

COCHRAN: Well, I think that you can't -- again, they're creating scenarios that I think lacks credulity. I don't want to prejudge the evidence in this case, but who believes that? They're all standing right there. They keep shooting a man who's down, and they shoot him in the bottom of his feet and his shins. They overreact, and that was the history of this street crimes unit...

VAN SUSTEREN: Johnnie, let me...

COCHRAN: They felt that the night was theirs, and that's inappropriate. An innocent man was killed.

VAN SUSTEREN: Johnnie let me ask you question. Suppose the first shot was -- the first couple of shots were legitimate out of fear. Do the -- can you have legitimate shots first and then a second degree murder count based on the fact that they kept firing?

COCHRAN: Oh, I think it could raise it up. If they had legitimate reasons for maybe self-defense or defensive evidence at one point, certainly if you keep firing at someone or you keep escalating it, you could then be charged with murder, and I think the grand jury listened to all this evidence; they listened to the coroner, they listened to these witnesses and they understood what the officers were going to say in this case. And I think given the totality of the circumstances, this was a case that the grand jury just couldn't walk away from, and I think this jury won't walk away from it either.

VAN SUSTEREN: All right, we're going to take a break. Up next, it's one trial with four defendants. Will there be a unified defense or finger-pointing? Stay with us.

(BEGIN LEGAL BRIEF)

The serial rape suspect the four street crime unit officers were looking for the night they killed Amadou Diallo was arrested April 8, 1999.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to www.cnn.com and click your way to the BURDEN OF PROOF link. 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.

VAN SUSTEREN: Four New York City police officers are on trial in Albany for, among other things, second-degree murder. Prosecutors say the police officers made a conscious decision to kill the victim. Defense lawyers, each representing different defendants, say the case is the result of a tragic mistake.

Johnnie, how important are the medical examiners in this case? Will there be dueling medical examiners on behalf of the prosecution and the defense?

COCHRAN: Oh, I think so. I think it's very, very important because if Mr. Cohen -- if Dr. Cohen comes forward and says that the -- one of the first shots penetrated the spine of Amadou Diallo and he fell to the ground, I think that spells problems for the defense in this case, and I'm sure they'll have their own doctors who will...

VAN SUSTEREN: But can they tell us the first one? I mean, this happened so quickly, these 41 bullets, do you think that they'll be able to tell which one struck Mr. Diallo first?

COCHRAN: Oh, I think they will be able to tell. It has to do with the amount of blood they found in the chest cavity. And, you know, of course, at that time, I represented the family, so, as you may know -- I don't rep. them any more -- but we also had a prominent doctor perform an autopsy and look at this body. So, you know, I think that it's going to be -- the evidence is going to be fairly clear. It was one of the first shots that struck him, pierced his spine and caused him to fall to the ground, because we couldn't figure out why he had bullet holes that were going into his legs and into his shin and to the bottom of his feet. I think this probably explains that.

COSSACK: Johnnie, you mentioned earlier the fact of the jury that was switched from New York City to Albany without picking a jury. Tell -- expand on that a little bit. What did you mean by that?

COCHRAN: Well, I think that, number one -- I think, first of all, it basically -- what does it say about the whole area of the Bronx? They have over a million people there. You know, in most juries -- and look at the cases where you pick a jury and you try to do a voir dire, call off those people who can't be fair. They never gave a chance to do that in this case. The lawyers never got a chance to try to get a fair jury. They moved it without any voir dire, whatever. Now, that was a real problem to do that without giving an opportunity.

Now, ironically enough, the case is now up in Albany and they have four African Americans on the jury, which is the most they've ever had in 50 years of picking juries, so I suppose that media attention does have some effect -- some positive effect.

VAN SUSTEREN: David, it's a tough case, in many ways, for the defense if indeed it's true there are two bullets through the base of the right foot, and there's also one through the calf muscle, which would indicate that he was down when he was shot rather than standing. Do you think that part of the defense will be that there's sort of a contagious nature to shooting bullets? Like, if one did something wrong, one completed murder, that the other ones got nervous -- is that a legitimate defense -- within that short period of time started firing?

SCHERTLER: I think the defense here is the police don't know what's happening with Mr. Diallo. Whether he's going down and he's falling because he's been disabled by bullets or he's going down to try to get cover so that he can fire back at him, they just don't know, and...

VAN SUSTEREN: But two bullets in the base of the right foot.

SCHERTLER: But this -- again, this is -- when you look at these cases day in and day out throughout the country, this is not unusual. As a suspect is falling, police continue to fire, and part of it is that -- what experts will say is the natural reaction that somebody, who perceives their life is in danger, has to that situation.

VAN SUSTEREN: But, you know, it raises the issue with me: I wonder if this were a white man standing -- I mean, I got to tell you this, the fact that this is a black man in a black -- or a dark area, rather, a dark area, you know I wonder if that really is an element to this.

SCHERTLER: You know, the evidence will come out and we'll see what the evidence says, but I don't think you can necessarily conclude that that's what's going on here because this happens to white victims as well as black victims, by black police officers against white, by white police officers against black victims.

VAN SUSTEREN: Well, we sure hear about it happening a lot to African Americans, that's the problem.

COSSACK: Johnnie, tell us about this street crime unit in New York City that these officers were part of. What's their reputation? What were they that they seized the night? What was that all about?

COCHRAN: Well, let me tell you, that's the problem. And David said -- I think said it very well when he said, you know, this always happens. But it always to poor and to African Americans in this country.

This particular unit, the street crimes unit, has somewhat been over an alibi, at least are safe for now. But this is a unit that, over the course of about two years, stopped, what, more than 35,000 individuals and all but about 10,000 of those were let go. They're stopping them because of racial profiling is what it was in an area where they think it's a high-crime area, and that's not acceptable behavior.

And these things, then, happen to innocent people when we allow them to happen. You put these inexperienced officers into these areas, they're afraid, they sometimes engage in stereotypical thinking, and this is a result. If this young man had been a white person in his doorway, I believe this would not have happened.

VAN SUSTEREN: Susan, to what extent is the issue of race being injected into this, trial whether it be a legitimate issue or not a legitimate issue?

ARBETTER: The issue of race was raised during the voir dire process. Stephen Worth, one of the defense attorneys, the counsel for Edward McMellan, actually said, I'm bringing up race in this trial. Everyone knows what we're thinking and you can cut the racial tension in this room with a knife.

VAN SUSTEREN: And that was the extent of the mention?

ARBETTER: That was the first mention. During trial, there hasn't been that much mention of race yet.

VAN SUSTEREN: You know, David, I'll tell you, race seems to be, I mean, almost, as Johnnie says, the stereotyping, the fact that, you know, these are -- you know, an African American man is shot. It's not so unusual, that's the problem.

SCHERTLER: You know, it does happen, and obviously there's been a specter throughout the country of police abuse and excessive force by police in a variety of situations. But you can't condemn these four men because of what's been going on in other places. You've got to look at each case separately, and you've got to look at this case...

VAN SUSTEREN: But they each -- they're wearing bullet-proof shields, they've each got one gun, some got two guns. COSSACK: David, the guy didn't have a gun. He had a wallet.

SCHERTLER: They didn't know that, and the problem is, you can't always...

COSSACK: But the question is, should they have known it? I mean, you have to hold them to some standard.

SCHERTLER: You know what, you want your cops out there on the street protecting the public.

COSSACK: Right.

SCHERTLER: You want them to be taking aggressive approaches. I agree with Johnnie: Nobody's constitutional rights should be violated, but when they perceive that somebody's going to pull out a gun, Roger, you can't wait to see whether that first shot gets fired and hits you, and then respond.

COSSACK: I agree, but a wallet is nowhere close to a pistol.

VAN SUSTEREN: The wallet doesn't bother me so much. What bothers me are the shots to the bottom of the foot. The wallet could be a gun, you know, when he reaches. What bothers me are the shots to the bottom of the foot. He had to be down with those.

SCHERTLER: But in dark, that's the deal where somebody's making motions that are suspicious to them and one officer believes he sees a gun, he's got to say something because he can't wait to find out what it is. And I, you know -- from the defense perspective, you can see why these officers may have reacted the way they did.

The other side of this case, which is some kind of argument that they just got out of their cars, saw the first African American man that they could find and the best field, and then shot him up in cold- blooded murder, that doesn't make sense.

COSSACK: No, that's not the others.

VAN SUSTEREN: Bottom of the foot, bottom of the foot..

COSSACK: That's not the argument. The other argument is that they overreacted when they saw something that they quickly perceived was a weapon.

But we've got to take a break. Up next, we change our focus to the case of Sean "Puffy" Combs. His attorney, Johnnie Cochran, discusses this morning's arraignment when we come back.

(BEGIN Q&A)

Q: How many people attended a New York memorial service for Amadou Diallo?

A: Two thousand. Diallo's funeral and burial took place in Guinea. (END Q&A)

(COMMERCIAL BREAK)

COSSACK: This morning in New York, Sean "Puffy" Combs entered a not-guilty plea to two weapons charges stemming from his arrest after a Manhattan shooting December 27. Combs is represented by our guest, criminal defense attorney Johnnie Cochran.

Well, Johnnie, they say the evidence against your client is that he was at the scene where this happened, that he went in a car that ran 11 stoplights before he stopped for the police, and they found a gun in the front seat of his car.

Now, to a lot of lawyers that would be tough evidence, but to you, Johnnie, how are you going to rebut that evidence?

COCHRAN: Well, let me start with the fact that you can't believe all that you read or hear in the press, Roger, as you well know. And I think the facts will reveal that at no time that particular evening did Mr. Combs have or possess a gun of any kind whatsoever. He and Jennifer Lopez had gone out for the evening, had come to that particular club in a limousine. And when they left, they couldn't find their limousine, as it were.

But at any rate, he never had a weapon. Somebody said something to him, there were shots fired. He had nothing to do with those shots. he was like a victim like everyone else, was pushed out, got into a car, and in that car, there was in fact a gun. But that gun was in the front seat. He didn't know the gun was there. He did not come in that car.

And I think, as the evidence is sorted out, you are going to find out that neither he nor Jennifer had anything to do with the gun or throwing a gun out the car, or whatever, and that if it were not for his celebrity, this case would have sorted out at the station house, and it has been kind of blown out or proportion.

VAN SUSTEREN: You know, you raise the issue of celebrity. He is a celebrity. And in many ways, picking a jury is sometimes harder for a celebrity. What about for you, Johnnie? I mean, do you have to, during your jury selection, are you going to, on behalf of Mr. Combs, are you going to have to make mention of the fact that people may know you? I mean, how do you handle that? and the fact that people associate you with some high-profile cases, most notably O.J. Simpson, what do you do about that?

COCHRAN: Well, I think you have to address that issue. It is kind of like the MCI commercial, I make clear: It's not about me, it's about the client. And I think you try not to let your notoriety or whatever get into representing the client. And it is difficult, both for the client and sometimes also for the lawyer. But also, it works sometimes for your benefit also, because people are willing sometimes to listen to particular facts, especially, you know, I had a case recently where, in Buffalo, where it worked greatly because we had a panel of jurors which lacked diversity. And this judge was remarkable in that, and also in Nashville, Tennessee. So it also works positively for you also.

VAN SUSTEREN: But if someone, for instance, doesn't like a lawyer, and they are not going to stand up and say: You know, I don't like you. You know, it is hard to be candid to a lawyer during jury selection. If they're very unhappy with the O.J. Simpson verdict, and if they somehow blame you, Johnnie, how are you going to find that juror, when you represented Mr. Combs.

COCHRAN: Well, I am going to represent -- I am going to that jury on voir dire myself, and we are going to talk about that. I think, though questionnaires and various things, you find out and you ask the question. Anybody who feels that this client can't get a fair trial for whatever reason. Anybody who doesn't like lawyers, that doesn't like lawyers or any particular case? And you ask jurors to be honest because you have got to believe in them to be candid and honest about this. And so you have got to find out about it. And you know, you have an obligation to do that.

COSSACK: Johnnie, you said that if it was anybody else but a celebrity, maybe this case would have gone away. Is this a rush to judgment, this case?

COCHRAN: Well, I think that the facts, many out are. You heard about racing down 8th Avenue. Let me tell you something, a police car was following this particular Lincoln Navigator from the time it left the club. There was no mention in that report of any gun ever being thrown out of the car or whatever. The occupants got out. They didn't go through 11 lights. So we know those facts are wrong. And that's what gets reported, and it gets reported over and over again.

This is a gun case. And I think you are going to find that the person responsible for the gun will probably take responsibility for that. And then this case will be sorted out at some point. And it has been blown out of proportion.

VAN SUSTEREN: All right, and that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE": first lady Hillary Rodham Clinton officially declares her run for the Senate. But what do the residents of New York have to say about it? Give your opinion at 3:00 p.m. Eastern time, noon Pacific.

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

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