Freedom watch

Why the Diallo jury was right

by Harvey A. Silverglate

The four police officers who pumped a fusillade of bullets into Amadou Diallo have been acquitted of murder. But the controversy surrounding their prosecution has proved yet again that it is extraordinarily difficult to talk constructively about race or police conduct in this country. When the two issues collide, the racial-politics charlatans and the law-and-order freaks make useful discourse nearly impossible.

In this case, both sides took positions before the facts were known. There was New York mayor Rudolph Giuliani, who initially hid behind the stance that "the cops can do no wrong" with an appeal to withhold judgment. But his credibility had long since been destroyed by his failure thus far to do anything about rampant police misconduct during his administration. Then there was the Reverend Al Sharpton, who had been at the center of the Tawana Brawley case in 1988 and who organized the high-profile picketing of a Jewish-owned store in Harlem in 1995 (days after the picketing, the store was burned down and eight people died). He led street demonstrations that accomplished only one thing: they forced the appellate court to order the trial moved from the sizzling cauldron of New York City to the calmer environs of Albany. The appellate judges were, of course, perfectly correct in moving the trial -- not in order to produce an all-white jury (in fact, there were four black jurors), but because a civilized society cannot try a case in an atmosphere where jurors feel that an acquittal would set off riots or put them in personal danger.

One side claimed that racial profiling was to blame -- that the cops had killed a black man under circumstances in which a white man's life would have been spared. The other side claimed that race had nothing to do with it. The truth is more complex. Yes, racial profiling helped trigger the cops' lethal response, but they never intended to kill an unarmed black man. After all, think of the LA police who attacked Rodney King and the New York cops who sodomized Abner Louima with a broom handle. If the Diallo cops had been as bad as the officers involved in those cases of obviously intentional brutality, they would have planted a gun, or at least some bright metal object, in the victim's hand -- which is virtually standard operating procedure, it seems, in some quarters of big-city police departments. The jury obviously saw, and credited, these officers' sincere shock and remorse.

The racial-politics agitators acted as if the Diallo, King, and Louima cases were all of a piece, but the differences are so clear that one must ascribe the basest, most cynical motives to anyone who claims not to see them. The King and Louima cases were intentional criminal assaults where race obviously played a role. The officers who brutalized those men deserved convictions and harsh sentences. In the Diallo case, although race undoubtedly influenced the cops' perceptions that they were in mortal danger from the "gun" that turned out to be a wallet, the deadly force was negligent overreaction at worst. The not-guilty verdict was not a racist statement. Rather, it showed that a conscientious jury had given the defendants the benefit of the doubt, as jurors are sworn to do.

Now that the acquittals are in, the feds are looking into charging the officers with criminal civil-rights violations, further eroding the constitutional protection against "double jeopardy." (The fiction employed by the Department of Justice, and upheld by a supine Supreme Court, is that the federal government, as a "sovereign" separate from the state governments, may have a second run at a citizen who's been acquitted once.)

I hate police misconduct and brutality as much as anyone, as my columns in these pages over the past 25 years will attest. But the battle against racial profiling, outright racism, and police brutality will not be advanced by the politically ambitious likes of Giuliani and Sharpton. We face the hard but urgent job of creating a society where police do not automatically assume that a black man's wallet is a gun. We can begin by taking real police brutality seriously -- and by recognizing negligent or accidental killings as unintended tragedies, even if they were on some level influenced by the nation's troubled racial legacy.