Still, in some respects, the cases are similar. Like Simpson, the cops who killed Diallo got some lucky breaks. They were lucky in the judge; they were lucky in the jury. And, most crucial of all, they were lucky that the defense version of events was ultimately the only one that mattered.
As with Simpson, there is the widespread sense that the four cops may have gotten away with murder. And for that, many people, including some of the jurors, blame an inept prosecution. Others blame the decision on the change of venue from the Bronx to Albany. The assumption is implicit that a Bronx jury (likely to be made up mostly of blacks and Hispanics) would have come to a different conclusion. As one experienced trial judge told me, “They are probably more likely to convict,” or end up with a hung jury, in the Bronx. On the other hand, he said, “in Staten Island, the cops would have been acquitted before they got to court.”
Yet to view the Diallo trial result as a case of jurors voting their racial biases would be both overly simplistic and wrong. For one thing, the jury (though majority white) was racially mixed. And the research on jurors and race is inconclusive. According to Nancy King, a law professor at Vanderbilt University, that research does indicate, among other things, that black jurors are less likely than whites to believe police testimony–at least when that testimony conflicts with that of a defendant. There is also a mountain of public-opinion data showing that blacks are less accepting of police in general. But even among blacks, class matters. Blacks in poor, crime-ridden urban areas are less trusting of police than more affluent blacks. As Cornell law professor Sheri Lynn Johnson put it, “The people who have the most experience with police find them the most biased.”
But that says little about how race plays out in a particular case–especially a case when the only story heard is that of the cops. Nor does it tell us much about the impact of a judge, especially a judge like Joseph Teresi, who was determined to see to it that the accused got a fair shake.
Bronx District Attorney Robert Johnson believes that Teresi went too far, in particular in his jury instructions. In those instructions, which took hours to read and covered nearly 200 transcript pages, Teresi repeatedly cites multiple grounds that justify the use of deadly force. And he does so not only for the three main counts (two of murder and one of criminally negligent homicide) but also for each of the so-called lesser-included offenses. Over and over and at mind-numbing length, the jurors are told they must evaluate the situation from the cops’ perspective. Again and again they are told that if they believe the cops’ story and, in that light, find their actions reasonable, they must acquit.
If the prosecution had had its way, Teresi would have given the justification charge less often, and applied it to fewer possible scenarios. But the prosecution did not have its way; and the jury clearly took Teresi’s words to heart. Would a Bronx jury have found the police behavior less reasonable? Probably. But in the end, the law and the judge’s instructions left the jury little room for second-guessing the cops. Responsibility for the verdict lies primarily with a system that gives a huge benefit of the doubt to the accused–assuming (and this is a huge assumption) that the accused can afford a competent defense. That shield of reasonable doubt protected four cops who, at the very least, suffered an unforgivable lapse of judgment. If real life were like the movies, Diallo’s killers would get their come-uppance. They would be tossed off the force–as they still may be. And they might even go to jail–which at this point is unlikely, given the odds against a successful federal prosecution.
When I asked Johnson if there was a larger message in the trial, he observed that it highlighted police behavior so improper that people had to take notice. Then he added, in a firm, calm voice, that he would not hesitate to bring similar charges in the future. Sadly, given the way too many cops see people in communities like the Bronx, Johnson may get his chance.
