The Diallo case People v. Boss.

• Position: Panel Discussion

ALBANY LAW SCHOOL--MARCH 7, 2000

The following is a transcript of the question-and-answer session that concluded the Albany Law School's panel discussion of the Amadou Diallo verdict, held on March 7, 2000. Panel participants included Professor John Baker, Professor Vincent Bonventre, Gaspar Castillo, Esq., Dr. Alice Green, Ray Kelly, Esq., and Tom Neidl, Esq., and was moderated by Professor Mary Lynch of Albany Law School.

LYNCH: Hello, everyone. Thanks for coming. Welcome to the Diallo Verdict--Justice, Law and Issues. This is a community discussion sponsored by the Diversity Committee at Albany Law School. The Diversity Committee is composed of students, faculty and staff who are committed 1;o enhancing diversity. Enhancing diversity includes creating a community whose members respect, understand, and empower differences. Before I alphabetically introduce our panel for discussion, I would like to thank Laurie Shanks for her assistance and assembling such a fine panel of speakers. Thank you, Laurie.

THE DIALLO VERDICT

DIVERSITY COMMITTEE: The first person I'd like to introduce is Professor John Baker who is not here yet because I believe he is teaching a class. He clerked in the Southern District of New York, [and] is the former president of the New York Urban Coalition Venture Capital Corporation. He taught at Yale and Indiana University Law Schools before, he joined Albany [Law] in 1991, [where] he was Dean until 1993.

Professor Vincent Bonventre clerked on the Court of Appeals. He has military experience including service with both military intelligence and the JAG Corp. He joined Albany Law in 1990 after he was a prosecutor and defense counsel. He teaches Ethics, Judicial Process and Criminal Law.

Gaspar Castillo, Esq. is a partner in the law firm of Castillo and Siegel. He practices among other things, criminal defense. I just want to say he just successfully tried a capital murder [case] and his client will be alive because Mr. Castillo's fine lawyering skills are very sharp.

Dr. Alice Green is the executive director of the Center of Law and Justice. The Center for Law and Justice is a non-profit organization for minor criminal justice activities, provides legal assistance and criminal justice advocacy and organize[s] efforts to obtain social policy and empower poor people and people of color. Previously she was legislative director for the New York Civil Liberties Union. Dr. Green writes and lectures on racism and criminal justice issues. She has won a plethora of awards including: the New York State Bar Association Public Service Medal and the service award from the Albany Chapter of the NAACP are two of many.

Ray Kelly, Esq. primarily practices civil and criminal trial practice. He is in the Albany County Public Defenders office and leading capital counsel in death penalty cases. [He is] a private attorney in a solo practice and he is also an instructor for Community and Legal Education. He is a member of many associations and committees, including, The National Association of Criminal Defense Lawyers, and he is also a member of the Board of Directors for the New York Association of Criminal Defense Lawyers. His awards include, Mendelson Ray Criminal Defender Award for representation of the indigent and Charles F. Free Memorial Award for the outstanding practitioner.

Tom Neidl, Esq. is a private practitioner. He is the first assistant of the Albany County DA's office, Deputy Bureau Chief, Criminal Prosecutions of New York Department of Law. He is now a private practitioner; focus[ing] on criminal defense. He has tried over 125 felonies and has perfected over fifty appeals in the Appellate Division and in the Second Circuit Court of Appeals. He has lectured at the New York State Police Academy and the New York State School for Prosecutors, to name but two.

Our moderator this evening is Mary Lynch. She is a professor here [at Albany Law School]. Before, she was a prosecutor at the Manhattan D[istrict] A[ttorney]'s office for four years. After that, she represented incarcerated and battered women and postincarnation in clemency matters and she has been teaching here for about ten years.

Thank you very much.

LYNCH: On the Department of Justice building in Washington, D.C. the following words are inscribed: "Justice is founded in the right to bestow by nature on man. Liberty is maintained in the security of justice."

Tonight we're here to talk about the Diallo verdict and to talk about the law and legal issues. With us we have a panel of experts. But I also want to say that we're here to talk about justice and many students come to law school because they care about justice. So this is after hours, this is not a class, no question is stupid, and no question has to be posed brilliantly. This is an opportunity to talk about a question you have no matter how silly it might [seem], or something you care about or feel committed to. [W]e are going to proceed with ... questions that were e-mailed to me prior to our discussion tonight. We invited those of you who feel more reluctant to raise your hand in public to e-mail some questions and I faxed those and presented those [to] some of our panelists and we'll start with some of those and then we [can] go to the floor generally to all of you. If you have a question for a particular panelist, I ask that you say that ahead of time. We're probably not going to have a chance to have every panelist answer every question. Also, we'd like to proceed with sort of rule of civility, as Judge Kaye would like to speak about, which is that we're here to discuss ideas, ideas that we may disagree with, but not to point at any people when we raise whatever our disagreements are. So with that, let us begin with some of the questions that were e-mailed ahead of time and raised by students.

Regarding Diallo, would the police have acted the same way if a white male had raised his wallet after being told to stop? Why didn't the prosecution attempt to introduce statistics on minorities versus non-minority stops/arrests in the community? I recall that such [evidence] was admissible in a local case concerning a police arrest. A suspected drug-dealing bicyclist [was stopped for not having] ... a bell on his bike. Would such evidence have been admissible in Diallo?

We'll start with the person who is counsel for the prosecution in the case, Mr. Neidl.

NEIDL: Hi, everybody, nice to be here. I think the first question--would the police have acted the same way if a white man raised a wallet after being told to stop--is kind of an unfair question. This was not, in my opinion, a profile stop or anything. The police, as far as their testimony was concerned, [stated that] the reason that they approached Mr. Diallo was because he resembled a police sketch of the serial rapists. It's hard to put that in context. I suppose if it was a white guy standing there who resembled a police sketch of a serial rapist, I suppose they could have done the same thing. Stop and approached him. It's kind of an unfair question. The prosecution, I don't believe, could have introduced any evidence as to statistics on minority and non-minority stops in the community. [A] problem for a lot of reasons. For starters it wasn't real relevant in that case, again, because it wasn't a profile stop and I believe that there are certainly profile stops. No question in my mind. I believe someone who is black or Hispanic, I believe that is certainly part of a profile. The police admitted that. In this case because of the police sketch. I saw the police sketch and compared it with picture of Mr. Diallo and it is pretty close. But those statistics would not be relevant at a trial for a lot of reasons. I can't take up a lot of time to discuss that. It would be like an evidence class. One reason would be because it wasn't just a profile stop. They had a specific reason why they stopped and approached him in a very bad manner in which they did approach him.

Somebody mentioned that there was a local case concerning a police arrest, they was a suspected drug-dealing bicyclist without a bell on his bike. That's what we would call a pretext stop.... [W]here [a suspect] fits a certain profile.... Maybe tinted windows or one of the lights in the license plate is not on, or the bicycle doesn't have a bell on it. But that is not relevant again to this case and I believe that evidence probably came in a suppression hearing rather than the trial.... That's what I have to say about the first question....

LYNCH: I'm going to let other panelist answer that question and then if there are any questions from all of you about that first question, we'll open it up to that. And maybe we'll turn to Dr. Green with respect to Mr. Diallo--would the police have acted the same way if a white male raised his wallet after being told to stop? ...

GREEN: I thought it interesting that you said it was an unfair question. I think it's a very fair question to ask. You must understand the role that race plays in our society. It permeates throughout, yet we do not acknowledge it. As I sat through the entire trial in the courtroom, I noticed that no one wanted to mention the word "race," yet most people seemed to feel its presence, but it was never brought up.

We're all aware that New York's Street Crimes Unit, guided by Police Department policy, has stereotypes of Black males and Blacks in general as people thought most likely to be involved in criminal behavior. The prosecutor came the closest to anyone in acknowledging the issue of race when he said, "These police officers, once they turned on to Wheeler Avenue with this mind set, Mr. Diallo was already doomed." They had the racial stereotype of Black males as persons who should always be viewed with suspicion because they are likely to engage in some kind of criminal activity and possess a gun.

The officers also had stereotypes about the community in which they were patrolling. They knew that the...