PHILADELPHIA (CBS) -- Charges have been refiled against Mark Dial, the former Philadelphia police officer seen on video shooting Eddie Irizarry last month, just hours after a judge threw out the case Tuesday.
The Philadelphia District Attorney's Office filed a motion Tuesday afternoon to reinstate the charges, including murder, voluntary manslaughter and aggravated assault. His next court appearance is scheduled for Oct. 25 at 9 a.m. with Judge Lillian Ransom.
Many were left stunned by the judge's decision to drop all charges, making for a very emotional day throughout the preliminary hearing. Tears, joy and shock could be felt in that courtroom. Still, prosecutors and the Irizarry family are adamant that the fight is not over.
The charges in Irizarry's death were initially filed after surveillance video and police body camera footage showed Dial opening fire multiple times as Irizarry sat in his car on a Kensington street.
Tuesday morning, Judge Wendy L. Pew cited a "lack of evidence" for throwing out the case after a preliminary hearing.
Dial's defense attorney, Brian McMonagle said the decision brings justice for his client.
"We have said from the beginning -- this is a tragedy, not a crime," McMonagle said. "This should've never been charged as a crime. And we're elated Mark's coming home to his family."
However, emotions were high outside the Philadelphia Center for Criminal Justice Tuesday morning.
"Everyone in Philadelphia seen a murder. They seen my nephew get f***ing murdered. Ambushed. Ambushed in his f***ing car. And they threw out all the f***ing charges," said Irizarry's aunt, Zoraida Garcia.
Attorneys also showed both officers' body camera videos, as well as surveillance video from near the scene.
The 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.
The parties were brought before a judge in a Philadelphia courtroom for a preliminary hearing on Tuesday and the footage was played again.
Family members cried as the body camera footage reached the moment where Irizarry's lifeless body was pulled from the car. Dial also cried at least twice.
"He wept in that courtroom today. He takes no joy in the fact that this young man lost his life," McMonagle said.
Tuesday's hearing was the first time we heard from Dial's partner, Officer Michael Morris.
Morris, who was driving the day of the shooting, was adamant in his testimony to prosecutors that he "vocalized" Irizarry was holding a knife and raising it. However, when the defense took over the questioning, the officer questioned what he actually said.
He also testified that Irizarry had been speeding, swerving, and driving the wrong way down a one-way street before stopping. Morris said the pair never activated their sirens and their intent was to initiate a traffic stop.
Morris said he saw Irizarry had a knife and was holding it against his right leg, pointing towards his knee. He then saw him gradually bring it upwards. Initially, Morris said that he was "vocalizing" that Irizarry had a knife.
"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 argued that from Dial's vantage point, the knife could have looked like a gun. They also argued that Dial was retreating as he was shooting, showing there was no premeditation.
Ultimately, Judge Pew sided with the defense and dismissed all charges.
"You just proved to Philadelphia that an officer can kill somebody, and get the f**k away with it in Philadelphia," Garcia said.
Despite the ruling, Irizarry's family members and prosecutors were steadfast that this is not the end of their fight for justice. Attorneys for the family previously said they intended to file a wrongful death lawsuit against the city and Dial.
"We do not agree with the judge's decision today to dismiss all the charges. We will file an appeal of this decision before the end of the day today," said Karima Yelverton, with the district attorney's office.
"My family here is standing up and we're going to continue to fight. Because this is not going to stay like that. Because this was a murder," Garcia added.
The release of the body camera footage came after attorneys Shaka Johnson and Kevin O'Brienat an Aug. 23 news conference that contradicted the initial police account that Irizarry was outside of his car and "lunged" at officers.
a day after reviewing body camera footage.
The defense, meanwhile, has blasted District Attorney Larry Krasner's decision to charge Dial with murder.
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," McMonagle told reporters earlier this month. "In no world (are) those facts murder."
The district attorney's office has since refiled those charges against Dial with the Court of Common Pleas, which includes the most serious murder charge of first-degree murder. Defense attorneys said their focus now is getting Dial back home to his family, but didn't rule out any sort of civil action.
Dial, a five-year member of the force,after officials said he refused to cooperate with investigators.
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