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Burden of Proof

New York Police Officers on Trial for Murder

Aired February 15, 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)

SEAN CARROLL, DEFENDANT: Everything started closing in on the object. Believing -- believing that he had just pulled, was about to fire a gun at my partner, I fired my weapon.

EDWARD MCMELLON, DEFENDANT: I heard Sean yell, he's got a gun, and I screamed, what are you doing, and I fired.

KENNETH BOSS, DEFENDANT: I fired five shots.

UNIDENTIFIED MALE: How many shots did you think you fired?

BOSS: I thought I fired two.

UNIDENTIFIED MALE: After you fired, what did you do?

BOSS: I fired, and then I jumped off to left.

UNIDENTIFIED MALE: Why did you jump off to the left?

BOSS: I was out of the line of fire, I could no longer see in and they could no longer see out. I couldn't get shot if I was to the left.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: New York police officers on trial for murder take the witness stand in their own defense. Will their testimony before an Albany jury shed new light into what they described as a dimly-lit crime scene, where an African immigrant took his last breath?

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

GRETA VAN SUSTEREN, CO-HOST: Hello and welcome to BURDEN OF PROOF. I'm in New York today.

In Albany, a jury panel began hearing testimony this week from New York City police officers. Four officers are being tried for murder in the February 1999 killing of African immigrant Amadou Diallo. COSSACK: With very emotional testimony, defendant Sean Carroll took the witness stand yesterday morning, followed by fellow officer and defendant Edward McMellon today. Today, the other two defendants testified about the events surrounding Diallo's death.

(BEGIN VIDEO CLIP)

BOSS: I remember grabbing him. At that time he was getting up, he was -- he was in the process of getting up. He was -- he was -- can I point?

UNIDENTIFIED MALE: Sure.

BOSS: He was now in this area here. So, after I -- after I stopped firing and took some sort of cover because I couldn't now have been in the line of fire here, I went up to him as he was getting up right here. And I grabbed him and I started feeling his chest, going, where are you hit, where are you hit?

UNIDENTIFIED MALE: What did he tell you?

BOSS: He said, I'm not hit.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Boston is law professor and criminal defense attorney Alan Dershowitz, who's also the author of the book "Just Revenge." And from Albany, Susan Arbetter, news director for WAMC public radio.

COSSACK: In Detroit, we're joined by medical examiner Werner Spitz. And here in Washington, Clay Tine (ph), former federal prosecutor David Douglass and Jenn Conner (ph). In the back, Ann Armitage (ph) and Chuck Rowling (ph).

VAN SUSTEREN: And also joining us from Albany is CNN correspondent Maria Hinojosa.

Maria, first to you. What happened this morning in the courtroom? Maria?

I think we're having some technical problems. Let me go to Susan.

Susan, can...

MARIA HINOJOSA, CNN CORRESPONDENT: Now I can hear you.

VAN SUSTEREN: OK, go ahead, Maria. What happened this morning?

HINOJOSA: I can hear you now, Greta.

VAN SUSTEREN: What happened this morning?

HINOJOSA: This morning, we heard from -- this morning we heard from the last of the two of the four police officers. First, we heard from Kenneth Boss, then later we heard from Richard Murphy. Interestingly enough, these are the officers who for a year and now 11 days have been shrouded in silence. Their testimony has been over and done with within a matter of two day. The testimony today was much less emotional than yesterday's. Yesterday, Sean Carroll broke down at the stand twice. Today, both of these officers were calm, collected even during cross-examination. They were -- they came across as real police officers in their testimony. The prosecution, in their cross, was about as long as the direct, which was about half an hour for both.

COSSACK: Maria, tell me about the cross-examination of these officers. Was the -- were the prosecutors able to score any points?

HINOJOSA: Well, from all of the legal analysts that I've spoken to up until now, people were not very pleased with what the prosecution was able to score today, at least, and yesterday. In fact, at one point when I was listening to the cross, I at one point thought it was the direct questioning that was going on. So, yesterday, during some of the cross, particularly of Edward McMellon, he -- the -- Dan -- Don Levin was going after him so hard that I at one point looked at one of the jurors who seemed a little bit exasperated, kind of like let's move on from here, we already heard what he said and let's get over with this. Today, the cross,then, I think perhaps they toned it down a little bit, but in essence what ended up happening was they seemed to have helped the defense case today.

VAN SUSTEREN: Alan, you know, you hear so much criminal law about state of mind. In the shooting in the vestibule, whose state of mind is important, is it the police officers or is it Mr. Diallo's?

ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: It's only the police officers' state of mind. They're the defendants, they're the ones on trial. If they honestly and reasonably believe that that wallet was a gun, it's a very simple case, they win. They can't be held responsible for a mistake having been made if it was a reasonable mistake. As Oliver Wendell Holmes once said, refined calculation cannot be expected in the presence of an uplifted knife, certainly even more so a gun. And so this case will turn on credibility if the policemen are believed and they make exceptional witnesses -- I watched them on television -- there will be, and there should be, an acquittal.

The problem is that those of us who have a lot of experience in watching police know that policemen always make good witnesses. They're very hard to cross-examine. This time, they appeared to me to be telling the truth, but who knows? I've certainly seen many police officers appear to be telling the truth, but they're trained, they're rehearsed, they do this all the time, there is a pat story that goes along with the shooting of an unarmed civilian. We may be hearing that story, but in my mind they have been sufficiently credible, and they've been confirmed by a neighborhood woman who said the other day she heard one of the cops yell, "gun." If that's believed, this case is over.

COSSACK: Maria, one of the events that seemed to trigger the shooting in this case was the falling down of officer Edward McMellon. Has it ever come out why this officer fell down? Apparently he fell down and the other officers testified they believe that he was shot or that someone had shot at him.

HINOJOSA: I was just up at scene of the crime on Friday, and you have three steps leading up into the vestibule, which is a very, very small space. It was very easy to see how, if they were walking up the steps and concerned about what was happening, that at that moment he could fall back, the steps are very small. That's in essence what they're saying. At that point, Sean Carroll says that he saw -- he saw Edward McMellon fly across him. He thought he was shot, he started opening fire.

But there's one thing I wanted to add to what Mr. Dershowitz was saying regarding that particular witness yesterday. Although she did end up saying that the officers said "gun," the other thing that she said, and she is the only eyewitness though her credibility right now is a problem, she did say that she saw the officers come out of the car with their guns drawn. None of the officers have said that, but that's her testimony.

COSSACK: Susan...

VAN SUSTEREN: Susan, what can we expect next in this trial? I know you've been watching it and I know you're in the overflow room today. What can we expect next?

SUSAN ARBETTER, WAMC NORTHEAST PUBLIC RADIO: Well, it looks like testimony is over for today, but next, Dr. Lin Cooper (ph), who's a professor from Columbia University, she's expected to testify on the impact of visual perception. And this is especially important, Greta, because Officer Sean Carroll said when Amadou Diallo removed what we now know to be a wallet from his pocket, he thought he saw a muzzle flash, and what Dr. Cooper is expected to testify about is the impact of muzzle flash and bright lights on the eye.

VAN SUSTEREN: All right, before I let you go, Maria, tell me, what's the courtroom like? Is it packed? Does it appear that there are a lot of people there who have taken sides or are the people in the audience waiting for the evidence, like the jurors?

HINOJOSA: The courtroom itself is packed. There was no room today at all. The Diallo family sits in the front row, Mrs. Diallo yesterday often hanging her head and shaking her head as she listened to the testimony of her son being shot at. In the overflow courtroom, you have many of the Diallo family supporters, many of Al Sharpton's supporters, although I did hear that today there were many police officers in the overflow courtroom. Behind me, there is a demonstration that is going on. It's been one of several. As the court -- as the trial wraps up, we'll probably be seeing more presence, at least from New York City, and demonstrations like this one behind me.

VAN SUSTEREN: All right, Maria Hinojosa, thank you for joining us today from Albany.

And up next: forensic analysis and how a medical examiner could add insight to this trial. Stay with us.

(BEGIN LEGAL BRIEF)

On this day in 1879, President Rutherford B. Hayes signed a law that allowed female attorneys to practice before the Supreme Court. Belva Ann Bennett Lockwood was the first woman to do so, just two weeks later.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: you can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to CNN.com/burden. 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. You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

STEPHEN C. WORTH, ATTORNEY FOR EDWARD MCMELLON: It is only when there is no other alternative do they use their weapons, and when they use their weapons, they use them to defend themselves. That's what they have those weapons for and that's why we bring that out.

JOHN D. PATTEN, ATTORNEY FOR SEAN CAROL: He could have been hit as he was in a dynamic move, and that the bullet went up his leg. To base your whole case on the claim that they shot him while he was on the ground, I think is a fallacious claim on their part.

(END VIDEO CLIP)

VAN SUSTEREN: Four New York City police officers are on trial for the murder of an African immigrant. In February, 1999, 22-year- old Amadou Diallo was struck and killed by 19 bullets from police handguns.

Dr. Spitz, besides the obvious, that the medical examiner needs to tell the jury that this man died as a result of being shot, is there anything a medical examiner can tell the jury to corroborate a state of mind of the police officers?

DR. WERNER SPITZ, MEDICAL EXAMINER: Well, I'm not sure that a medical examiner would really be able to do that, other than to say that he was the victim here was conscious throughout the entire operation. He did not have a single gunshot wound of the head. He was able to realize he's been shot throughout the entire length of this ordeal. He probably died on the ground, he did not die immediately, certain thoughts went through his mind.

And I have no real reason to believe that he was shot when he was on the ground. I think he has two shots that hit him, one in the third vertebra of the back of the chest, the thoracic vertebra, the third one; and also the 10th one, which would have cut the nerve supply to the legs, and he would have fallen with that, but that's about it, because the entire ordeal here must not have taken more than a few seconds. And he was hit, in my view, while he's upright, but some of the time as he is falling. I do not believe that at any time he was hit when he was on the ground, lying flat on the ground. It is much too short for that.

VAN SUSTEREN: What about the shot to the bottom of the foot, though, is that something that could happen as he was falling?

SPITZ: Well, he is falling, and his legs go up in the air at some time, and so I've seen that before, that is not necessarily an indication that he was shot while he was lying on the ground.

COSSACK; David Douglass, as an attorney, what would you be dealing with? Now, you have heard Dr. Spitz say that, in his opinion, he wasn't shot while on the ground. Now, what do you do in terms of the fact but 41 shots were fired?

DAVID DOUGLASS, FORMER FEDERAL PROSECUTOR: Well, as the doctor was saying, this all happened in a very short time frame. And once one officer fires, or once someone hears a gunshot, then they all fire and they fire probably until their weapons are discharged because they are shooting to defend themselves and shooting to kill. So those 41 shots from four officers only took a few seconds.

COSSACK; But in fact, one of the things that has came out at the trial is that two of the officers only fired between, say, four and six shots, which at the very most would have been 12. And that means that the other two officers fired almost twice as many shots. How does that play?

DOUGLASS: Well, it's an interesting point, but the difficulty here is there is so little objective evidence to test anything. We have heard the officers' statements. I, personally, find the testimony not credible from the police officers, but the case is not about them establishing their innocence, it is about the prosecution establishing guilt beyond a reasonable doubt, and the difference on the number of bullets fired in that short time frame is just not sufficiently significant to give anyone a lot to work with, certainly not the prosecution.

VAN SUSTEREN: Alan, I find it significant that a neighbor heard say "gun." That certainly helps the police officers, but what does a defense attorney do about the fact that there were 41 shots fired, 19 hit Mr. Diallo. What should a defense attorney do with that?

DERSHOWITZ: Well, it is interesting because it is very emotionally devastating testimony. And obviously, the cover of the "New Yorker" and the campaigns in New York have all focused on the bullets, how many were fired.

The reality is, if the first bullet was fired reasonably, that really should be the end of the case. If the policemen had justification for shooting once, you don't really expect them just to withhold their fire. That may have been bad policing to continue to shoot, it may have been overreaction, it may have been a lot of things that could result in conceivably civil liability, maybe disciplinary action.

But my view of the law is that if the first shot, which most certainly was potentially lethal, was fired reasonably, the defense ought to -- and New York has a case, I actually argued it some years ago, involving an attempted murder, where the New York Court of Appeals very dramatically said: Man dies, but once. And if there is a reasonable possibility that the first bullet or the second bullet or any of the bullets while he was standing may have killed him, then it doesn't matter legally whether or not they might have fired 20 or 30 additional shots after he was dead.

The irony, of course, is that the defense is arguing that he remained alive for a long time, and that's why he posed a threat. And the prosecution may be arguing that he died fairly quickly. So they are both arguing against their ultimate positions on whether he was dead early or late, and whether the additional shots matter as a question of law.

COSSACK; Dr. Spitz.

SPITZ: Yes.

COSSACK; Can you say which bullet -- which of the bullets were the ones that had the most effect upon him? In other words, which one was fired first, which one was fired last? Can you tell any of that?

SPITZ: No, I don't think anybody can. What I can tell you is that none of the bullets, including the one that ultimately did kill him, which is the one in the aorta, which are the main blood vessel of the body and would bleed terribly very quickly, but none of the bullet wounds, including that one, would have been immediately incapacitating. So he could have acted for the entire duration, and then when he is on the ground, once he fell to the ground, he is still alive and active.

COSSACK; All right, let's take a break.

Up next, do police officers make good witnesses? and are they more difficult to cross-examine than regular witnesses? Stay with us.

(BEGIN Q&A)

Q: Why is Sacramento County, California going to file charges against a rape suspect who is known only by his genetic code?

A: According to prosecutors, filing charges based on DNA, even without a suspect's name, should preserve the right to prosecute if the suspect is ever identified.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: This week in Albany, New York, police officers charged with killing an African immigrant took the witness stand in their defense. Alan, you have popularized the phrase "testa-lying," in terms of what police do. Now the police have testified in this case, and apparently, they've done a good job. How do you cross-examine them?

DERSHOWITZ: It's very difficult to cross-examine police. Testa- lying, of course, occurs in the context of a premeditated effort by police to try to convict somebody, who they believe to be guilty, by lying, stretching the truth about search and seizure. That's very, very different. Nobody can defend or justify that.

But the police facing a crisis situation, where they may believe their own life is at stake is very, very different. And I, surely, side with police when there are doubts in that kind of a situation. But what we don't know is whether or not the police are testifying truthfully or falsely.

What happened is the few bad apples in Los Angeles and New York who have really popularized the term testa-lying -- it was a police term invented in New York -- have made it harder for many people to believe policemen even when they're telling the truth. And these defendants who may very well be telling the truth may suffer from the Fuhrmans of the world and the others who also look like they were terrific.

Remember, the term testa-lying was popularized when we were asked for a reaction to Fuhrman's testimony the first time around. Everybody said he did a wonderful when he denied having used the "n" word. He withstood cross-examination, withering cross-examination by Bailey. It turned out he was lying through teeth.

So we have a problem of how do you evaluate police testimony. We also know that lawyers are now asking jurors all over the country: When you hear policemen, do you give more or less credit to their credibility? Years ago, you would hear that they would give more credit to their credibility, because they were policemen. Today, increasingly, juries are saying, well, we give less credit to policemen because of what we've heard. That's a real problem in this case.

VAN SUSTEREN: Susan, has this judge controlled the courtroom and kept the emotion away from the jury?

ARBETTER: Absolutely. Judge Joseph Teresi has, kind of, an iron control, iron hand over this courtroom. Woe is the reporter or the spectator whose beeper goes off in that courtroom.

COSSACK: David, we've heard testimony -- there has been testimony in this court that the woman who heard some -- the police officer yell gun, also testified that she saw the police officers get out with their guns drawn. If you were the prosecutor, would you call someone to testify about what the proper police procedure is?

DOUGLASS: I think I might. I would certainly consider it. That witness has separate problems. But it's absolutely right, based on what the officers said, they were just making an inquiry. To get out of the car, at that point, with guns drawn, would be a tremendous problem and inconsistent with their version of events. So I would seriously consider bringing in an expert in police procedure in those situations.

VAN SUSTEREN: Dr. Spitz, medical examiners have wide experience. Would you be able to testify as to how fast this shooting could have occurred? Is that within your experience?

SPITZ: Yes, I think I could. And I can tell you right now, this would take less than five seconds.

VAN SUSTEREN: To fire all 41 shots?

SPITZ: To fire everything, yes, by four people.

VAN SUSTEREN: And why do you say that?

SPITZ: Well, because these are probably semiautomatic weapons, which fire bullets a lot faster than a revolver. And 41 bullets are discharged in a very short period of time by four people. That only means an average of 10 apiece. And if one fired five, say, or -- and another one fired 15, or more than that...

VAN SUSTEREN: It would go awfully fast.

SPITZ: ... that goes off so fast. That would go so fast. Two twin blinks of your eye would do it.

VAN SUSTEREN: All right, and let me, let me tell you something else. This show has gone too fast too, because that's all the time we have for today.

Thanks to our guests and thank you for watching. And if you'd like to weigh in on police and the criminal justice system, tune in to "TALKBACK LIVE" today. That's 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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