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Jewish World Review Jan. 11, 2000 /4 Shevat, 5760

Nat Hentoff

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ACLU: Guilty until presumed innocent? -- ON FEB. 4, 1999, Amadou Diallo, an unarmed immigrant from Africa, was fired on by four police officers, members of New York City's Street Crimes Unit. They shot 41 bullets in eight seconds, and enough hit their mark to kill Diallo, who had never before been accused of a crime. And there was no evidence he had committed a crime that night -- or intended to.

The story was covered by media around the world; especially, of course, in New York, including the borough of the Bronx, where the shooting took place.

The four cops have been indicted for murder, but have not yet been tried before a court. Yet the avalanche of prejudicial pretrial publicity has been constant and pervasive, especially in the Bronx, where the trial was originally scheduled to be held.

Even the American Civil Liberties Union, the very bastion of due process -- which is the constitutional right to a fair trial by an impartial jury -- ran a full-page ad in the New York Times, essentially declaring the police officers guilty before the cops presented their side of what happened that night.

In the ads, the ACLU showed the Miranda warnings -- "You have the right to remain silent," etc. -- with a bullet piercing every word. At the bottom of the page, the reader was told that "the police," having "killed an unarmed, innocent man," had also wounded "the right of every American to due process of law." What about the due-process rights of the cops -- and their presumption of innocence?

Characteristic of the newspaper coverage for months was this headline in the New York Post: "The Diallo Case -- Bring in the Feds: How Could Something So Horrible Happen to Such a Decent Man?"

And the allegedly sophisticated New Yorker magazine ran on its cover a cartoon of a smiling police officer shooting at human cutout figures in a shooting gallery that advertised "41 shots, 10 cents!"

Moreover, the Reverend Al Sharpton, whose congregation appears to be the media, orchestrated mass demonstrations at police headquarters that were enthusiastically publicized by the newspapers, radio and television. The many politicians, members of the clergy and entertainers who were arrested for committing civil disobedience during these demonstrations were mostly there in a legitimate protest against systemic police brutality in other cases.

But Sharpton clearly was organizing those protests in an attempt to influence the grand jury to indict the officers. And in the process, he was poisoning the potential jury pool in all five boroughs of New York City.

Finally, in December, a unanimous panel of the state court's Appellate Division ruled the trial had to be moved out of the Bronx to Albany because, the judges said, "The prospective jurors of Bronx County, and the rest of New York City, have been subjected to an endless repetition of the notion that the two undisputed facts -- namely that 41 shots were fired and that Mr. Diallo was unarmed -- conclusively establish the defendants' guilt and are dispositive of all possible factual and legal issues....

"The few voices reminding the pool of prospective jurors of the sacrosanct right of the accused to the presumption of innocence have been drowned out by this incessant drumbeat of prejudicial publicity."

As soon as the court reached that decision, the majority of New York's columnists, editorial writers and other commentators objected vigorously, and sometimes viciously, to the decision to take the case out of Bronx county -- even though polls taken by the defense attorneys disclosed that a very high percentage of black citizens of the Bronx -- potential jurors -- were already convinced that the cops were guilty. So were many whites who might have served on the jury.

Supreme Court justice William O. Douglas said that "The history of liberty is the history of due process. When there is widespread contempt for the presumption of innocence in any case -- leading to a prejudiced jury -- our system of justice has become perverted." Until now, I thought the American Civil Liberties Union, of all institutions, knew that.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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