Willful misbehavior or tragic accident?

What level of charges and punishment could the officers face if the DOJ develops a case?

If death results, as in the Diallo case, the sentence can be for any term of years or for life.

If DOJ is unable to develop a case against the officers, could it pursue the New York Police Department with a federal civil enforcement? Could you take the Diallo and Abner Louima cases and establish a pattern of civil rights abuses by the department?

It's unlikely, unless you have a massive pattern. The Justice Department did do that to the Philadelphia police department. Remember [Philadelphia Mayor] Frank Rizzo? The Justice Department filed a complaint against the Philadelphia Police Department for systematic constitutional violations. But that would almost never be based on one or two incidents. That would be based on a substantial pattern or practice. Unless you could show that up the line, at some supervisory level, this type of behavior was being encouraged or approved. But inferring from two incidents in a city of 8 or 9 million people, with tens of thousands of police officers, doesn't rise to the level of a pattern or practice.

There were no eyewitnesses in the Diallo case other than the officers. Will that make it more difficult to prosecute than previous cases, like the trial of the officers involved in the Rodney King beating?

The King case had the video tape, which meant it was very hard for them not to prosecute because it looked pretty clear that something wrongful had happened. You don't have that here -- what you have is a jury that apparently believes their version, that we felt threatened and we fired. If that's what you think happened, it's very hard to infer a constitutional violation, even if they were unreasonable in thinking they were threatened.

Would it be considered double jeopardy for the DOJ to prosecute the officers after they were acquitted at the state level?

No. They were not prosecuted for violating the constitution or civil rights in state court. They were prosecuted on state murder, manslaughter and other homicide charges. But it's still a fair question, and that's one reason the department doesn't do this often. Even though they have the raw power in almost any case that involves police conduct to go in and make a federal civil rights prosecution, it comes close to the line of double jeopardy. As an internal matter, they are reluctant to do it -- since it's basically prosecuting the person for very similar behavior when they've already been acquitted the first time. Unless you have a real reason to think the process in the state courts was flawed, you might not go forward.

On Friday, Mayor Giuliani, who himself is a former federal prosecutor, told reporters, "Let's move this out of politics." He also said it would be inappropriate for the Justice Department to renew the case against the officers. "I know those rules like the back of my hand."

I think it's hard to say that reviewing the case is inappropriate. You don't know how much the Justice Department knows about the case. If there had been a conviction here, there would have been no call at all for a federal prosecution. Anyone would be within normal behavior to review the facts and decide whether to proceed.

The other side is that these are difficult convictions -- you have to prove a specific intent to violate constitutional rights. On a racial basis, this jury was not stacked. I remember reading somewhere that someone said this was the highest percentage of blacks anyone could remember on an Albany jury. Four out of 12 isn't bad, and this was a unanimous decision. If you had four jurors who believed it was racially motivated, you'd at least have a hung jury. If I'm the Justice Department, the fact that a jury that was one-third black saw fit not to convict, meaning they bought the policemen's version of the story, it's hard to infer a specific intent to violate constitutional rights.

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