THE REFUSAL of the Justice Department to file federal charges against the
four police officers who slaughtered Amadou Diallo was a disgraceful
abandonment of the idea of equal justice under law.
In folding her prosecutorial cards, U.S. Attorney Mary Jo White claimed
that since the police officers acted without "the specific intent to use
unreasonable force," no federal charges could be brought. In other words,
because the cops did not wake up in the morning intending to murder an innocent
black man, the feds were helpless.
Nonsense. Although federal civil rights laws do criminalize a cop's
intentional use of unreasonable force, this is not the only basis for a
prosecution. There was ample evidence to suggest that the police acted
illegally when they initially approached Diallo with their guns drawn and
ordered him to halt and that they lacked reasonable suspicion to believe that
Diallo was involved in criminal activity. A prosecution that focused on the
unlawful nature of the initial police approach to Diallo could utilize recent
data on racial profiling by the Street Crimes Unit, the practice of stopping
blacks for "suspicious" conduct considered innocuous when engaged in by whites.
Because Diallo died as a result of this illegal stop, upon conviction the cops
could face life in prison. This would be true even if a federal jury accepted
the cops' story that they fired 41 times because they believed Diallo's wallet
might have been a gun.
A federal prosecution would be difficult, and success far from guaranteed.
But the Justice Department has conducted far more dubious civil rights
prosecutions in the past. Lemrick Nelson was tried by the Brooklyn district
attorney for the murder of Yankel Rosenbaum and was acquitted by a multi-racial
jury. Following intense pressure by the Jewish community, the Justice
Department dusted off a rarely-used provision of federal law and charged Nelson
and his co-defendant. Many doubted whether the legal theory under which it was
tried would hold up. But they tried, and succeeded.
Federal intervention is particularly warranted when the local prosecutors
either will not, or cannot, bring the wrongdoers to justice.
In the Diallo case, the tepid prosecution team assembled by the Bronx
district attorney's office seemed as outgunned as Diallo. The district
attorney's office mounted minimal resistance to the cops' motion for a change
of venue, ensuring that the Diallo jury would be composed of people far removed
from the reality of police-and-citizen relations in the Bronx. The prosecutors
failed to cross-examine the cops' expert witness on police procedures and
failed to call their own expert witness. Their clumsy cross-examination of the
officers themselves allowed the cops to repeat, unchallenged, various
By contrast, a federal case against the cops would have been tried in front
of a jury pool drawn, at least in part, from the Bronx and Manhattan. And the
cops would have faced prosecutors with vast resources who take pride in their
almost 100-percent conviction rate and want to maintain it.
There is also strong precedent for federal intervention when a state
criminal trial fails to vindicate important federal interests. It is hard to
imagine a more pressing federal concern than deterring trigger-happy cops and
restoring black and Latino faith in the criminal justice system.
The Justice Department is sparing no expense here in New York to bring the
would do well to remember that the killers in the New York City Police
Department are a far greater threat to African-American and Latino New Yorkers
than Osama bin Laden.