Bronx District Attorney Darcel D. Clark this week took a step down an unhappy trail blazed by her predecessor, Robert Johnson, indicting an NYPD sergeant for murder in the shooting death last fall of a mentally ill woman who allegedly was attacking him with a baseball bat.

Never say never in the Bronx, of course, but the likelihood that Clark will obtain a conviction that will survive appeal is so remote as to be virtually non-existent. The most charitable explanation for the indictment is that the DA doesn’t understand the relevant law; more likely she does, and is playing politics.

Sergeant Hugh Barry, an eight-year NYPD veteran, was arraigned in state Supreme Court on murder and other charges in the death last October of Deborah Danner, a paranoid schizophrenic with a long history of disruptive behavior. Police had been called to her Bronx apartment, where Danner initially threatened them with a pair of scissors. Barry reportedly convinced her to put down that potential weapon, but when he tried to lead her from the apartment, she allegedly attacked the officer with a bat. Barry shot her twice, killing her.

Mayor de Blasio and Police Commissioner James O’Neill quickly criticized Barry in public, increasing political pressure to charge the officer. Indeed, with the death-in-police-custody case of Eric Garner still festering and bitter memories of the fatal police shooting of Amadou Diallo lingering from 1999, the political dividends from an indictment in Danner’s death—in a mayoral-election year—may be considerable.

However, neither the law nor precedent appear to be on DA Clark’s side. Quite the opposite, in fact, as Robert Johnson’s spectacularly failed attempt to convict the officers who killed Diallo illustrates. The circumstances of Diallo’s death were shocking. Confronted at a Bronx doorway by four poorly trained anti-crime cops, Diallo pulled a wallet from his pocket; the cops mistook it for a gun and fired 41 shots—hitting the 23-year-old immigrant 19 times. He died at the scene.

Johnson’s position was that the “defendants, acting together, intentionally killed Mr. Diallo. . . . Cops are no different than any other individuals who roll up beside a building and open fire,” he said, announcing murder indictments against the four officers.

The indictments did not stand, of course, and here’s why—as explained at the time by a senior state Supreme Court justice:

Johnson left out an important word: “unlawful.” He doesn’t have to prove that the cops intentionally killed Diallo; the 41 shots prove that on their face. He has to prove that they unlawfully killed him. And the law specifically gives cops the right to use deadly force if they reasonably believe that their own lives are in danger.

That was the law then, and it remains so today. After a change of venue, the officers were acquitted after the trial judge explained the relevant law in almost precisely those terms. This goes a long way toward explaining why state Attorney General Eric Schneiderman—offered an opportunity to empanel a grand jury of his own—walked away from the Danner-Barry case last fall, implying that he did so because Danner was armed and thus the officer had reason to fear for his life.

Schneiderman, not being one to shrink from potentially favorable publicity, is also not one to court embarrassment. This time, at least, he appears to have had the law, justice, sound public policy, and common sense on his side.

Critics, including de Blasio and O’Neill, no doubt will disagree. Barry should have used a Taser; he could have waited for backup, and he would doubtless be in a happier place now if he hadn’t responded in the first place. No doubt he wishes things had turned out differently—as does just about everybody else involved.

But there is rarely a place for shoulda, coulda, woulda in big-city police work, just as there is no guarantee that cops won’t make mistakes in the good-faith performance of their duties. Just as no reasonable case can be made for denying cops the benefit of the doubt when mistakes happen—even (especially) deadly mistakes.

Often such “mistakes” aren’t mistakes at all but unhappy outcomes of chaotic situations. At the same time, criminalizing genuine blunders is itself an affront to justice; cops have rights, too. Among them, at least in New York, is the statutory presumption that officers get to defend themselves when they reasonably believe their lives to be in danger. Abridging that presumption for political purposes—which appears to be the case here—not only hangs out to dry an exemplary cop; it also would be a big step toward the destruction of a world-class police force.

“The loss of Deborah Danner was a tragedy felt deeply by our city,” de Blasio said after Barry’s arraignment. “Now that the grand jury has made its decision, we have full faith in the district attorney to lead a fair and thorough prosecution.”

No doubt it will be thorough. Whether it will be fair remains to be seen.

Photo by Chris Hondros/Getty Images


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