UPDATED: 4 p.m.
PHILADELPHIA (KYW Newsradio) — A Philadelphia judge has dismissed the case against former police officer Mark Dial, who was charged with the murder of Eddie Irizarry. The district attorney has already refiled charges and there’s another hearing scheduled for next month.
Municipal Court Judge Wendy Pew tossed the case entirely during Dial's preliminary hearing on Tuesday, citing lack of evidence. A preliminary hearing is intended to determine whether or not there is enough evidence to support the charges.
During the hearing, the judge and others in the courtroom saw body-worn camera video from Dial and his partner, as well as surveillance video from the neighborhood, which defense attorney Brian McMonagle says is where you can hear Dial's partner yell "That’s a f---ing gun."
Dial’s partner and the investigating detective also testified.
The detective had originally recommended a charge of voluntary manslaughter, but the district attorney ultimately filed murder charges against 27-year-old Dial.
Dial sobbed several times in court, mostly when the body-worn camera video was played.
"Once you got a chance to see the knife, which is what we have been talking about from the beginning, it looks like a .38," McMonagle said. "It’s got the black handle, it’s got the metallic edge to it, and when it’s pointed right at your face, the vantage point he had, there’s no doubt about the fact that he believed it was a gun. And the video shows that, after he fired, he continued to try and take cover. You only take cover when you believe it’s a gun."
Assistant District Attorney Karima Yelverton argued the video shows Dial pulled his service weapon and fired within seconds of arriving at the scene: "I am angry, but it’s not about how I feel. The commonwealth will appeal this decision."
The video shows Dial shooting at Irizarry six times, striking him with five bullets, through the chest, shoulder and back.
Irizarry’s family members expressed outrage and yelled after the judge’s decision. Irizarry’s aunt, Zoraida Garcia, shouted outside the courthouse.
“That’s why the reason the people in the city do what the [expletive] they want,” she screamed into a crowd of reporters. “They don’t respect the [expletive] cops and now after this murder, they not gonna respect no [expletive] cops, because you just proved to Philadelphia that an officer can kill somebody and get the [expletive] away with it in Philadelphia. They murder, they ambush. He was not a threat to none of them.”
“We have said from the very beginning: This is a tragedy and not a crime,” said Brian McMonagle, Dial’s attorney. “The evidence that came in today was indisputable. It showed that the deceased tragically raised what appeared to be a gun.”
Irizarry did not have a gun, but there were two knives found in the car.
“Before there was a discharge in this case, the other officer shouted ‘gun,’ and my client thought what he clearly believed to be a gun before he fired,” McMonagle continued. “Applying laws to facts is what you must do in a courtroom. And in this courtroom today, there was justice. This should have never been charged as a crime and we’re elated that Mark’s coming home to his family.”
Dial, who was a Philadelphia police officer for five years, shot and killed Irizarry on Aug. 14. Irizarry had been driving erratically and went the wrong way down a one-way street in Fairhill, police said. Dial and another officer responded. Body camera footage shows Dial approaching Irizarry’s car and firing several shots into the rolled-up driver’s side window within seconds of arriving. Irizarry was struck several times and taken to the hospital, where he died.
Dial turned himself in earlier this month and was released on $500,000 bail. However, a judge revoked his bail last week, sending him to jail.
Investigators said Irizarry had a knife by his right leg. The police department initially said a knife-wielding Irizarry lunged at the officer, but then officials, including then-Commissioner Danielle Outlaw, backtracked and said that account was inaccurate.
Outlaw also said last month that Dial would be fired after a 30-day suspension due to insubordination.
The Fraternal Order of Police has shown support for Dial. There have also been demonstrations in support of the Irizarry family’s push for justice.
Within about two hours of the preliminary hearing wrapping, the District Attorney’s Office filed to reinstate all criminal charges, including murder. A hearing is now scheduled for Oct. 25 in front of the same Common Pleas Court judge who revoked Dial’s bail.
She will now also decide if there’s enough evidence to hold Dial on murder charges.