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Mort de Amadou Diallo à New York City

Christopher Drew
The Charges Prosecution Opts to Bring Top Counts for Shooting

April 1, 1999

In preparing the indictment of four police officers in the shooting death of Amadou Diallo, prosecutors in the Bronx faced a choice of going solely for the highest possible murder charges or including a series of lesser charges that they could fall back on later if necessary.

And when the indictment was unsealed Wednesday, it became clear that the Bronx District Attorney, Robert T. Johnson, and the grand jury working with him had decided to present their case in the simplest and harshest terms, charging each of the officers with two counts of second-degree murder.

Second-degree murder is defined as the intentional killing of a person or a killing resulting from depraved indifference to life and is punishable by 25 years to life in prison.

Legal experts said the Bronx prosecutor could feel comfortable omitting the lesser charges, like manslaughter or criminally negligent homicide, because in most such cases, judges will permit their consideration anyway, if the evidence presented at trial does not support the more severe charges.

And by framing the case starkly, the prosecutors gain the benefit of setting a tough and aggressive tone from the outset.

« When a prosecutor charges only murder, it's a clear public statement that the prosecutor wants and expects no compromises, » said Ron Kuby, a longtime New York lawyer who has represented people in brutality cases against police officers.

In other types of cases, like burglary or larceny, prosecutors are more likely to include lesser charges in an indictment, so that if a judge or jury does not find enough evidence to convict on the most serious charge, there is an array of other choices available.

But prosecutors must balance a risk in including the lesser charges: It could signal to a judge or jury that the prosecutors themselves have doubts about the evidence.

« You don't want to send a message to the judge or jury that the top count is not strong, that you've included lesser counts because you feel the top count is weak in some way, » said a veteran New York City prosecutor who is not involved in the Diallo case and who spoke on the condition of anonymity.

Gerard E. Lynch, a former Federal prosecutor who is now a law professor at Columbia University, said that although lesser charges are occasionally included in homicide cases, « It's not necessary to clutter up an indictment to include fallback charges. »

In the Diallo case, the four officers – Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy – were each charged with one count of second-degree murder « with intent to cause the death of a person » and one count of second-degree murder for « evincing a depraved indifference to human life. »

Johnson, the Bronx District Attorney, explained yesterday that the first of these murder charges requires proof that some or all of the officers, at the time of the shooting, intended to kill Diallo, an unarmed West African immigrant who died Feb. 4 in a hail of bullets. It does not require premeditation, he said.

The other charge allows for a murder conviction if prosecutors simply prove that the officers « recklessly » caused his death, whether they intended to or not.

Each of the officers also was charged with a separate count, of recklessly endangering bystanders, when Diallo was shot.

New York State law permits police officers to use deadly force, but only under certain conditions. If an officer « reasonably believes » that his life or other people's lives are in danger, he is justified in using his gun, the law says.

Lawyers representing some of the police officers said yesterday that the officers mistakenly thought Diallo was reaching for a weapon before they shot him. Clearly, the lawyers will try to persuade a trial jury – or a judge, if the officers ask for a bench trial – that the officers simply made a mistake in the line of duty and should be acquitted.

But if the evidence is more ambiguous at the conclusion of the trial, prosecutors can ask the judge to consider lesser charges than second-degree murder. Under New York State law, for instance, a defendant can be found guilty of the next most serious charge, first-degree manslaughter, if a jury decides he intended to cause the victim serious injury, but instead killed him.