Robert Brown|Judge throws out charges against Philadelphia police officer in fatal shooting of Eddie Irizarry

Judge throws out case against Mark Dial, ex-Philadelphia officer, in Eddie Irizarry shooting

The judge in the case against the Philadelphia police officer seen on video shooting Eddie Irizarry last month dismissed all charges, including a murder count, on Tuesday.

Officer Mark Dial was charged with murder and several other counts this month in Irizarry's death after surveillance video and police body camera footage showed him opening fire multiple times as Irizarry sat in his car on a Kensington street. Dial was fired earlier this month "for insubordination." The police commissioner said Dial refused to obey orders from a superior officer and failed to cooperate with the department's investigation.

Judge Wendy L. Pew cited a "lack of evidence" for throwing out the case after a preliminary hearing.

RELATED: Body camera footage shows Philadelphia officer fatally shoots Eddie Irizarry; officer charged with murder

A court docket shows the case was closed as of Tuesday morning.

In a statement, the Philadelphia District Attorney's office said it disagrees with and will appeal Tuesday's ruling by the end of the day.

"In keeping with our oath to seek justice, we will move to have all criminal charges, including murder, reinstated against this defendant," the statement said.  

Graphic videos showed Dial and his partner pull up in a police vehicle next to Irizarry, who had parked on the 100 block of East Willard Street in Kensington on Aug. 14. Dial is seen exiting the police cruiser before shouting at Irizarry to "show your hands" and adding "I will F-ing shoot you."

He then fired multiple shots at Irizarry as he sat in the driver's seat.

Attorneys for Irizarry's family previously said they intended to file a wrongful death lawsuit against the city and Dial.

The release of the body camera footage came after attorneys Shaka Johnson and Kevin O'Brien played surveillance video at an Aug. 23 news conference that contradicted the initial police account that Irizarry was outside of his car and "lunged" at officers. 

Police changed their account of the shooting a day after reviewing body camera footage.

The parties were brought before a judge in a Philadelphia courtroom for a preliminary hearing on Tuesday.

Dial's partner, Officer Michael Morris, testified Tuesday that the pair had been following Irizarry, who was allegedly driving erratically, turned the wrong way down a one-way street and stopped. 

Morris claimed Irizarry had a knife in his hand and started to raise it as the officers approached.

"I screamed that he had a knife," said Morris, adding the knife had a black metal handle that could have been mistaken for a gun.

Later, on cross-examination with the defense, Morris seemed to waver as to whether he said gun and then knife. 

The defense, meanwhile, has blasted Krasner's decision to charge Dial with murder.  

Defense had argued that from Dial's vantage point, the knife had the appearance of a gun, and that the fact Dial was backing away as he was firing showed he was retreating, arguing it was not malice.

Sitting at the defense table, Dial dabbed his eyes with a tissue as prosecutors played video of the fatal shooting from Morris' body-worn camera. District Attorney Larry Krasner has called bodycam videos from Morris and Dial "crucial evidence in the case," saying they "speak for themselves."

Irizarry's family has said that Dial deserves a long prison sentence.

"When police officers ordered him to show his hands, he instead produced a weapon and pointed it at an armed police officer," lawyer Brian McMonagle told reporters this month. "In no world (are) those facts murder."

Dial, a five-year member of the force, was suspended with the intent to dismiss after officials said he refused to cooperate with investigators. He was facing a number of charges, including murder, voluntary manslaughter, aggravated assault, recklessly endangering another person, and official oppression.

In:
• Philadelphia Police
• Eddie Irizarry
• Philadelphia

CBS News Philadelphia Staff

The CBS News Philadelphia Staff is a group of experienced journalists who bring you the content on CBSPhiladelphia.com.

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