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Burden of Proof

The Diallo Case: After the Verdict

Aired February 28, 2000 - 12:41 p.m. ET

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

(BEGIN VIDEO CLIP)

HOWARD SAFIR, NYPD COMMISSIONER: There are no winners in this case. The fact is that this was a terrible tragedy, it was a mistake because of a series of circumstances, but I also believe that this was an extremely fair trial.

UNIDENTIFIED FEMALE: I think it's crazy. I think you set a precedent, anyone can be killed now, and the cops would be justified in their killing.

CROWD: Amadou! Amadou!

UNIDENTIFIED FEMALE: I thank God that I have daughters, not sons. My heart goes out to every mother that has a son of color in this city.

MAYOR RUDY GIULIANI, NEW YORK: We also have a vicious form of anti-police bias, which leads to entertaining every doubt possible against the police and, you know, police officers are human beings also.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The Diallo case after the verdict. Four New York City Police officers are acquitted in the shooting death of African immigrant, Amadou Diallo. Was this a tragic accident in the dangerous streets of New York? or, as critics are saying, a miscarriage of justice?

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

As protesters call for social justice, jurors in the trial of four New York City police officers are defending their not guilty verdicts. The law, according to one juror, made their decision very clear.

GRETA VAN SUSTEREN, CO-HOST: Amadou Diallo, a West African immigrant, was killed in February 1999, when the four defendants fired 41 bullets at him, striking him 19 times. During the trial, the officers said they believed Diallo was pulling out a gun when, in fact, he was pulling out his wallet.

(BEGIN VIDEO CLIP)

KADIATOU DIALLO, AMADOU DIALLO'S MOTHER: No human being deserve to die. Even criminal people deserve to be arrested and be judged before condemned. So, if it is one bullet or 41 bullet, it's the same. It's about human being. It's about life.

(END VIDEO CLIP)

COSSACK: Joining us today from New York is Steve Worth, attorney for officer Edward McMellon. In Chicago, we're joined by Professor Christopher Cooper, a former Washington, D.C. police officer.

VAN SUSTEREN: And here in Washington, Brian Jones (ph), criminal defense attorney Ron Sullivan, and Amy Clarke (ph). And in our back row, Chris Keyser (ph) and Jonathan Melanson (ph).

Steve, let me go first to you. When your client and the other three officers first stopped Amadou Diallo, it was because he fit some description of a rape suspect. What was that description?

STEPHEN WORTH, ATTORNEY FOR OFFICER EDWARD MCMELLON: Well, basically, he fit the description as to one officer who initially made the stop, and it was a male, black, approximately 21, about 5 foot 7. That was the description as far as it went when they first saw him.

VAN SUSTEREN: Was this a hot pursuit description that someone had just been raped and they were out looking for a suspect or was this sort of a serial rapist in the community that they were looking for?

WORTH: Serial rapist. It is one of these things these guys are told to look for when they go out on patrol, they are given a number of bulletins with descriptions and sketches, and be aware and be on the lookout for these people, among others.

COSSACK: Let's talk about the verdict. In light of what the evidence that was presented in this case, I know some people are very unhappy with the verdict, but the verdict makes sense, doesn't it?

RON SULLIVAN, CRIMINAL DEFENSE ATTORNEY: Well, it does. And I think what we have to do is de-couple the actual verdict, jury verdict, from the larger social concerns that arise from the verdict, and that involve the issue of racial profiling. With respect to the jury, the jury had to answer essentially two questions: Whether the officers actually subjectively believed that Mr. Diallo had a gun, and whether their subjective belief was reasonable in light of the circumstances?

COSSACK: And in light of the evidence that the prosecution presented, I think people have to understand that the jury does have to answer a very narrow, limited, legal question and that the issue is, did this prosecution prove beyond a reasonable doubt that these police officers acted illegally as articulated in the charges? And it was tough for the prosecution. SULLIVAN: I think it was very tough, particularly when you had one witness who said that they heard the word gun being yelled, that certainly provided a lot of evidence for the back two officers, a lot of evidence in support of their actions that evening. Slightly different case for the front two officers, but still, it was a difficult case for the prosecution.

Now, the larger social issue that I spoke about is this: The reason that the officers thought a wallet was a gun, the reason that this subjective belief was likely credited by the jury, has to do with this issue of racial profiling. These predominant stereotypes about race that infect the country.

Now, by racial profiling, it can mean two things, one, it can mean an affirmative police policy to target people based on race, that's not exactly what I'm talking about here. By racial profiling, what I mean is the use of race as proxy for criminality.

VAN SUSTEREN: Which I think is a little bit is what presidential candidate Bill Bradley has said that when a white man pulls a wallet out of his pocket, it looks like a white man pulling a wallet out of his pocket; when a black man pulls a wallet out of his pocket, it looks like a gun.

COSSACK: It's perception.

VAN SUSTEREN: But let me go to Dr. Christopher Cooper in Chicago. That description -- and you are a former police officer -- the description of the serial rapist in the community was a male black, 21, 5 foot 7. Is that, for a police officer, sort of carte blanch to stop every black man because that's a pretty general description. There are probably thousands that fit that description, Chris?

CHRISTOPHER COOPER, ASSISTANT PROFESSOR, ST. XAVIER UNIVERSITY: Yes, but I'm not sure that it was a general description. A police officer has to use common sense, and many police officers in many jurisdictions throughout the United States, when they hear a flash lookout for a black male, they stop the first black male that they see. I was stopped this past summer and thrown up against a wall because I was jogging in a white neighborhood, and told that I was a robbery suspect. All that the officers could tell me is that they were looking for a black male. So any black male who jogged by would have been stopped.

VAN SUSTEREN: Do you think -- I mean, does that bring outrage to you? I mean, simply being a black male...

COOPER: Of course.

VAN SUSTEREN: ... shouldn't be reason to stop someone?

COOPER: Of course not. And the problem is, some officers, not all officers, simply take these flash lookouts, and hearing that it's a black male being looked for, will stop every and any black male that they see. Greta, I just wanted to touch on a point made by the last speaker. He talked about racial profiling, and I agree wholeheartedly. I want to add that racial profiling contributes to abuse of use of the deadly force policy; that is, the deadly force policy that we as police officers are supposed to adhere to. Many times officers abuse the use of deadly force policy when dealing with black people.

VAN SUSTEREN: And we're going to talk about deadly force after this break. Stay with us.

(BEGIN Q&A)

Q: Why has O.J. Simpson filed a lawsuit against a California telephone company?

A: For the release of his late wife's telephone records, which he says would help prove his innocence in her death.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

We're talking about the verdict in the Amadou Diallo killing. This verdict in New York, in Albany, New York, resulted in the acquittal of four police officers.

Steve, what is the legal standard for when a police officer can use deadly force?

WORTH: A police officer can use deadly force when he reasonably believes that deadly force is about to be used against him.

VAN SUSTEREN: Is that subjective, meaning what the police officers themselves thought was going to happen or is there some sort of an objective standard what a reasonable person might conclude under the circumstances?

WORTH: Well, in New York we -- under the Bernie Goetz case we have both a subjective and an objective standard, and basically it's an objective standard but through the eyes of the reasonable police officer, given all the background and training that he has.

COSSACK: Steve, in light of the fact that Giuliani has -- takes credit for crime being down in New York with a very tough policy, don't you think it leads to these kind of situations where we hear -- we talk about stereotypical behavior by the police officers, that is the criticism that they would be quicker to fire when they see someone of color than perhaps they would be if they saw, you know, me?

WORTH: Well, I think the answer to that is that these officers had been on the force for six, seven years each, had stopped hundreds of individuals between them, had made hundreds of gun arrests between them and, you know, didn't have a tragic incident like this take place. You know, you have to liken this to a plane crash in some sense in that, you know, despite all the safeguards and all the procedures every now and then a series of human errors can lead to a tragedy. That doesn't flaw the whole policy. We don't stop flying on planes because every once in a great, great while there's a crash.

COOPER: All of -- all of the experience that the officers had on the street does not take away from the fact that these officers had sociological baggage that included stereotypical perceptions of black males. They could be on the street for 25 years. That's not going to erase the racist beliefs that they have had as a part of them since their early days on this planet.

VAN SUSTEREN: You know, Ron, the thing that bothers me in this case is this, is that when the -- when Amadou Diallo reached for something someone yelled gun, so it seems like there would be a reasonable fear at that time, and you can fire very quickly these weapons. But I back it up. If it was stopping him in the first place, this wasn't a hot pursuit. This was a generalized description. It wasn't like someone who had a scar on the right side of his face, something very defined. Wasn't that the initial problem with stopping him?

SULLIVAN: I absolutely agree. It was the pervasive problem in this country, and that is what I would characterize as the unjustified police stops of black men, particularly in this country. Recently, there are some studies out that track the number of black people who are stopped versus the number of people who -- in other races who are stopped.

VAN SUSTEREN: How many -- you're a Harvard-educated lawyer. How many times have you been stopped?

SULLIVAN: Scores, scores of times, and it's really -- it's really sad to say. But I was telling you on the break, I've been stopped with my book bag a block off of Harvard's campus, you know, looking like a disheveled law student and not, you know, like a robbery suspect or anything. But it's true, I'm stopped all the time. But people finally are starting to do some serious, serious work and serious study. The Jamestown project, for example, is doing a serious study of this phenomena of stopping black males based on the most generalized descriptions. And what it is, again, is this racist proxy problem: black men equals criminal. And to the extent that that is...

VAN SUSTEREN: That's right, black man reaching for a wallet is a gun, white man reaches for a wallet is a wallet.

SULLIVAN: Is something else, and that's sort of a problem that police officers have to unlearn.

VAN SUSTEREN: Except in this instance when someone yelled gun, and there was corroboration that the police officer did yell gun, that, in your view, would be a -- I mean...

COSSACK: Well, that gets the jury off the hook.

SULLIVAN: That gets the jury off the hook. That... COSSACK: Right.

VAN SUSTEREN: But does that get the police officers off the hook, though?

SULLIVAN: It doesn't, it doesn't. That's why I said at the beginning, you have to decouple the jury's verdict from this larger problem that is a problem, and no one can deny that it's a problem, and now we see the worst case example of this problem as manifested in the death of Mr. Diallo.

VAN SUSTEREN: Steve, quickly -- let me ask Steve quickly. How fast -- let me -- Steve, how fast did it take to fire those bullets, do you know? Did police -- do you have expert testimony?

WORTH: Between, four and five seconds is all it takes. Greta, I want to say one thing.

VAN SUSTEREN: Can I just get you to hold that for one second, Steve. We'll invite you back, because this is an ongoing story, because unfortunately, and I hate to do this to you, but that's all the time we have for today.

Thanks to our guests and thank you for watching. And you can weigh in on the Diallo case today on "TALKBACK LIVE." Among the guests: our very own Roger Cossack. 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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