Cop Trial’s Move Roils New York

NEW YORK â€”  The story is disturbingly familiar: Four white policemen attack an unarmed black man, and the minority community boils over with rage. Amid a tidal wave of publicity, the officers’ trial is moved out of the urban community where the alleged crime took place to a more bucolic and white area, where there has been less pretrial coverage.

Critics call it “the Simi Valley strategy,� referring to the 1992 Rodney G. King beating trial and its disastrous aftermath in Los Angeles. But this time the story comes out of New York, where four white police officers are about to stand trial on charges of murdering Amadou Diallo, an unarmed Bronx street vendor who died in a hail of 41 police bullets earlier this year.

The much-anticipated case was to begin Jan. 3, but in an unusual move that has triggered fierce debate in New York--and raised a host of national questions about race, crime and police accountability--an appellate panel has moved the trial out of the city, saying it would be impossible to find an impartial jury in New York City.

Arguing that a deluge of news stories and anti-police protests had tainted the jury pool, judges on Dec. 16 sent the case to Albany, 150 miles north, suggesting that Albany County had “reasonable� ethnic diversity. But the numbers show a strong contrast: The Bronx is 30% black, 48% Latino and 18.6% white; Albany County, from which the jury would be selected, includes the state’s capital, but it is a largely suburban area with surrounding farmland and is 9.2% black and 86% white.

“My son lived in the Bronx and he died in the Bronx,� said Diallo’s father, Saikou, at an angry rally on the steps of the Bronx courthouse. “It should be tried in the Bronx, because we have never been to Albany. This is heartbreaking.�

Attorneys for the four officers, who requested the change of venue, have said their clients were tracking a serial rapist in the Bronx on the night of Feb. 4 and that Diallo, a 22-year-old West African man, fit the description of their suspect. He refused a command to halt and appeared to be reaching for a gun--which later turned out to be a set of apartment keys--when he was shot, attorneys said.

The change of venue, a highly unusual decision that cannot be appealed, is widely seen as a major break for the defense. Bronx juries are notoriously hostile to the testimony of white police officers, prosecutors say, and no officer charged with using excessive force has gone before a Bronx jury since 1991; all have instead chosen “bench� trials conducted by judges.

Long a symbol of urban blight and crime, the Bronx has been a difficult place to win criminal convictions in any trial: Its juries have a conviction rate of 55%, the lowest in New York, compared with 78% in Brooklyn and 75% in Manhattan. The borough’s 1.2 million residents, many of them poor, “have absolutely no love for the New York police,� says attorney Ron Kuby, who has represented numerous clients in cases against the New York Police Department.

Each of the officers on trial in the Diallo case was indicted on two counts of second-degree murder and could get 25 years to life if convicted; all had been widely expected to seek a bench trial in the Bronx. With the change of venue, the officers--Sean Carroll, Kenneth Boss, Richard Murphy and Edward McMellon--are likely to choose a jury trial when the case finally gets underway, although they could still choose a bench trial in Albany. A new starting date has not yet been announced.

The shift to Albany sets the stage for a highly emotional case that will once again put the NYPD on trial, underscoring a deepening divide between officers and minority communities. Those tensions are already frayed by the trial this year in a Brooklyn case involving five officers accused of beating and torturing Haitian immigrant Abner Louima. One officer was convicted and awaits a possible life sentence. Three others were acquitted, but another, who pleaded guilty to brutalizing Louima with a broomstick, has been sentenced to 30 years in prison.

The Diallo trial may increase police-community tensions amid charges that judges acted rashly in moving the case to Albany. But an even bigger issue may be the central question of the trial itself: Did New York police use reasonable force against Diallo? Many have called the shooting a tragedy but not a crime, noting that officers have a legal right to protect themselves with guns if they feel they are in danger.

“It’s easy to Monday-morning-quarterback these tense situations which officers face, but they’re making decisions none of us wants to confront,� said Robert J. Castelli, a professor at John Jay College of Criminal Justice in New York. “They have to act in a fraction of a second, and that is a sobering fact when jurors finally confront it. . . . It’s the kind of issue you’ll see front and center in the Diallo trial.�

Such a defense has typically provided strong protection for officers in similar trials across the country, Castelli noted, yet the Diallo trial is taking place at a time when the controversy over “racial profiling�--or the singling out of suspects solely on the basis of race--has reached a zenith, particularly in New York. Though the city has experienced a stunning 50% drop in violent crime since 1992, critics charge that police are excessively violent in the way they treat minorities and routinely violate their civil liberties.

All of these hot-button issues will take center stage in the Diallo case, but it will also highlight the emergence of Burton Roberts, a recently retired Bronx judge and influential player behind the scenes, as a defense attorney for one of the officers. Roberts, who was the real-life inspiration for the judge in Tom Wolfe’s “Bonfire of the Vanities,� has emphatically denied speculation by some that he exerted undue influence over the decision to grant the change of venue. Like other defense attorneys, Roberts says he was surprised by the decision.

“I never believed my motion would be granted,� Roberts told journalist Jack Newfield in a recent New York Post story, adding that he’s had a legal career of “the highest rectitude.�

As debate flares over how the Diallo trial will be affected by the move to Albany, some believe the appellate judges made a wise decision, saying the mood in New York City is heavily biased against the defendants. “Rhetoric in the media made it appear as if they were absolutely guilty--there’s no question about it,� said New York Mayor Rudolph W. Giuliani, calling the 12-page decision a timely blow against vigilante justice.

But others see a disturbing precedent--and offer dark predictions about how the trial will ultimately play out.

Judges “made demographics destiny,� said Newfield, suggesting the court should have tried to find impartial jurors before moving the case. Now, he said, “they have put New York on a path toward Simi Valley and Rodney King.�

Police critics, fearing that an Albany jury might acquit the four officers--just as the Simi Valley jury acquitted the defendants in the King case--have called for the Justice Department to intervene in the case and possibly take it over. But federal officials have indicated they would not consider such sweeping action until after a verdict is reached in the Albany court.

In moving the case out of Bronx County, judges said they wanted to find a New York county that partially reflected the special character of the Bronx.

A Decision to Move to Albany

But they decided against holding the trial in any of the city’s four other boroughs because of overlapping publicity, and they said nearby Westchester County was too suburban and affluent.

They decided the best match was Albany, which has a relatively tiny black community--and a skeptical New York Daily News editorial noted that “if race is one of those issues the court had in mind, then Albany doesn’t qualify.�

While defense lawyers routinely file motions for change of venues in controversial cases, the requests are rarely granted by the courts.

Despite heavy pretrial publicity, trials were held in New York for Bernard H. Goetz, the white subway gunman who shot several black youths 15 years ago, and Colin Ferguson, a black gunman who killed several people on the Long Island Rail Road.

Federal courts also found what they considered impartial jurors in New York City to hear the case against the World Trade Center bombers, as well as the New York police officers who abused Louima.

“It’s so very rare to grant a change of venue in New York,� said a veteran Bronx jurist who asked not to be identified. “But I think in this case, the facts warranted a move. If ever there was a police case crying out for a change to a different geographical setting, it was this one.�

In the weeks following Diallo’s death, daily protests against the NYPD dominated the news. More than 1,200 people were arrested for civil disobedience in front of police headquarters, including former Mayor David N. Dinkins and Democratic Rep. Charles B. Rangel, who represents Harlem in nearby Manhattan. The five-judge panel said shrill media coverage had saturated the public, citing examples such as a New York Post column that contained a paragraph consisting of the word “Bang� written 41 times.

Judges also relied on a highly unusual private poll conducted by the officers’ attorneys, which found that 81% of Bronx residents believed there was no possible justification for the firing of 41 shots at Diallo and that 41% said the police were guilty of shooting Diallo, knowing he was unarmed.

The change of venue “takes this tragic case out of the Old West, lynch mob atmosphere that has surrounded it for almost a year,� said Patrick Lynch, president of the Patrolmen’s Benevolent Assn. Now, he said, “the case at least has the chance of being tried on the facts, as free as possible of sideshow politics and invented racial considerations.�

Sharpton Enters the Fray

Moving the case may cause tactical problems for the Rev. Al Sharpton, who organized most of the large street demonstrations against the Diallo defendants.He will be hard-pressed to transport an equal number of protesters to Albany in the heart of winter. But Sharpton vowed that the change of venue will in no way affect his plans to monitor the trial.�We will follow this case every day, whether it’s up in Albany or Alaska,� he said.

Defense attorneys “are going to the suburbs to get a different race of people, rather than the peers of the county in which the crime itself was committed. . . . It’s another form of judicial apartheid, but nobody should kid themselves. The world will be watching.�