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CITY LIFE / The Feds Copped Out in Diallo Case

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

self-serving statements.

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

perpetrators of the embassy bombings in Tanzania and Kenya to justice. They

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.


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