A Philadelphia judge on Tuesday dismissed all charges against former city Police Officer Mark Dial, ruling that prosecutors had not presented enough evidence to show that his fatal shooting of Eddie Irizarry while on-duty last month was a crime.
Following a preliminary hearing, Municipal Court Judge Wendy L. Pew agreed with Dial’s attorneys that the officer was justified when he shot Irizarry, and that he and his partner were reacting to a situation in which they believed Irizarry presented a potential threat to their safety.
The decision led to an outburst of support from Dial’s relatives and dozens of police officers who had gathered in the courtroom to support him. His defense attorneys, led by Brian McMonagle, said the shooting was “a tragedy and not a crime” and that the charges — which included first-degree murder — “should have never been brought.”
Irizarry’s relatives were outraged. Speaking outside the courthouse afterward, his aunt, Zoraida Garcia, said: “The officers can go out here and kill a person that’s not doing anything and get away with murder, because this is what it was.”
The District Attorney’s Office vowed to file an appeal by the end of the day in an attempt to refile all charges against Dial.
“We do not agree with the judge’s decision,” Assistant District Attorney Karima Yelverton said outside the courthouse.
Dial, 27, a five-year veteran of the force, shot and killed Irizarry, 27, as Irizarry sat in his car during a traffic stop in Kensington on Aug. 14. Police initially said Irizarry had lunged at Dial with a knife, leading the officer to shoot him. But video showed that wasn’t true: Irizarry was sitting in his car, the windows rolled up and a knife in his hand, when Dial opened fire within just seconds of getting out of his police cruiser.
On Aug. 23, former Commissioner Danielle Outlaw said she was suspending Dial with intent to dismiss him from the force for refusing to cooperate with the department’s internal investigation into the shooting.
About two weeks after that, District Attorney Larry Krasner’s office charged Dial with crimes including first- and third-degree murder, voluntary manslaughter, and aggravated assault. After Dial surrendered to police, he was released on bail. Last week, however, a judge ordered that the first-degree murder charge he was facing required that he be held without bail, and sent him to jail ahead of his preliminary hearing.
Prosecutors had alleged that Dial’s partner yelled “knife” before Dial opened fire, and that because he emerged from his police car with his gun drawn, and then fired within five seconds, he should be charged with murder.
But Dial’s attorneys had said the officer thought his partner yelled “gun,” and that Dial shot Irizarry out of self defense.
Dial’s attorneys reiterated that in court Tuesday — and sought to bolster it with testimony from Dial’s partner, Michael Morris.
Morris testified that in the moments before the shooting, he told Dial that Irizarry appeared to be holding a knife as he sat inside his car. Under questioning by prosecutors, who called him to the witness stand, Morris said he didn’t remember the exact words he used, but said he saw Irizarry grab a knife and appear to move it upward, and that he’d tried to tell Dial about it.
“For the most part, my eyes were zoned in on the threat,” Morris said.
On cross-examination, McMonagle played surveillance video from a nearby doorbell cam that captured the shooting. He said the audio accompanying that video made it sound as if Morris or Dial had said “f — gun,” and asked Morris if that’s what he heard on the recording, too.
“Fair to say,” Morris said.
McMonagle told Pew, the judge, that testimony made it clear that Dial’s actions were justified under the law, which allows officers to shoot if they believe their life is in danger. At the end of the hearing, Pew said she agreed that prosecutors had not provided evidence that Dial’s actions amounted to a crime and she dismissed all charges.
McMonagle said afterward: ”Once the court heard everything in this case, there was nothing under the law that you could do but dismiss charges.”
Yelverton, the prosecutor, also played bodycam videos from both Dial and Morris during the hearing, and showed Pew the entire surveillance tape from a nearby doorbell cam. She contended that prosecutors were seeking “even-handed justice” in charging Dial with murder.
Afterward, she said that she was “angry” that the case was thrown out, but quickly added: “It’s not about how I feel. The Commonwealth will appeal this decision.”
Irizarry’s family had been publicly calling for Dial to face charges for weeks before he was arrested. They rallied and marched through the city with leaders from the Puerto Rican community, and the charges, they said, had brought some relief.
On Tuesday, Charito Morales, of Philly Boricuas, one of the organizations that led a rally, said she was “very angry” when she learned of Pew’s decision.
The community has grown tired of police evading accountability, she said in Spanish, and Tuesday’s ruling was a message that police could do anything without fear of consequences:
”Today they went 1,000 steps backward and they shattered the faith we have in the justice system.”