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New York City mayoral candidate Fernando Ferrer surely thought he could help his campaign by speaking to a police officers’ union on issues of law and order. Instead, he stumbled badly when he told the group that the 1999 shooting of Amadou Diallo was not a crime, and that there had been an attempt to overindict the police officers involved. Faced with a storm of criticism from New York’s minority communities, Ferrer began backtracking almost immediately in an attempt to undo the harm. Damage control aside, however, he actually raised a valid and important point. An overindictment may well have been responsible for the acquittals in the Diallo case. And if you don’t believe me, you can ask Wyatt Earp (more on that later). Amadou Diallo, unarmed and standing on the stoop of his own apartment building, was killed when four members of the elite Street Crimes Unit mistook his wallet for a gun and let loose a barrage of 41 shots. The officers were charged with murder, but acquitted following a lengthy trial, which had been removed to Albany, N.Y., from the Bronx. In response to Ferrer’s comment, Bronx County District Attorney Robert Johnson defended the murder indictment, saying that it was voted as a result of the evidence available at the time, and that it withstood subsequent judicial review. Such convictions are difficult But no matter how much the indictment was morally and legally justified, the fact remains that it is nearly impossible to convict police officers of murder, especially when they were acting in the line of duty. There is nothing new about this observation. For most of American history, judges and juries have been loath to send police officers to prison, their reluctance increasing in proportion to the seriousness of the charge. It is not well known, but Wyatt Earp, along with his brothers, Virgil and Morgan, and Doc Holliday, were prosecuted for murder following the legendary gunfight at the O.K. Corral in Tombstone, Arizona Territory. For the better part of a month, Wyatt and Doc sat in jail while Judge Wells Spicer heard the evidence in a preliminary hearing that would decide their fate. Today we think of the Earp brothers as steadfast lawmen who faced down the notorious Clantons and McLaurys in the mean, dusty streets of Tombstone. But at the time-Oct. 26, 1881-things were not so clear. Witness after witness testified that the Clantons and McLaurys raised their hands in surrender, virtually begging for their lives, when the Earps and Holliday shot them down in cold blood. The defendants, of course, told a different story, claiming that they only began firing in self-defense when Billy Clanton made a false move, reaching for his six-gun rather than putting up his hands. In the end, Spicer was appalled by the shootings. The Earps had forced an unnecessary confrontation and killed three men at the first provocation. This conduct was censurable, said the court, holding that the Earps had acted incautiously and without due circumspection. That was the very definition of manslaughter under Arizona law. Murder v. manslaughter But the charge was murder, not manslaughter, and that required proof of malice or premeditation. As judges and juries would continue to do until this day, Spicer was unwilling to second-guess the split-second reactions of the local cops. He could believe that they had overreacted or acted rashly, but he could not bring himself to call them murderers. So Spicer dismissed the charges and the Earps went free. The line from Wyatt Earp to Amadou Diallo may be a metaphor, but it is a powerful metaphor that has had an impact on perceptions of law enforcement for more than 100 years. To critics, an overzealous police officer may be a cowboy, but to many citizens, an effective cop is today’s counterpart of the frontier marshal, using badge and gun to impose peace on the troubled streets with as much force as necessary. Against that backdrop, in contemporary Albany or fin-de-si�cle Tombstone, it is and has been almost hopelessly unrealistic to prosecute police officers for murder, rather than a lesser degree of homicide. Indeed, the murder charge is so rhetorically overpowering that it tends to blot out even the possibility of conviction on a lesser included offense, as appears to have happened in the Diallo case. As politically difficult as it may have been at the time, an initial manslaughter charge would have been much more likely to result in a conviction. So Fernando Ferrer had it half-right. There was indeed an overindictment in the Diallo case, but it ultimately helped the defendants rather than hurt them. They were far from completely blameless, but, faced with a murder charge, they were innocent enough. After all, they were the police. Steven Lubet, a professor of law at Northwestern University, is the author of Murder in Tombstone: The Forgotten Trial of Wyatt Earp (Yale University Press 2004).

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