INDICTMENT

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX

PEOPLE OF THE STATE OF NEW YORK
AGAINST

BOSS, KENNETH DEFENDANT: IBNA

CARROLL, SEAN DEFENDANT: IBNA

MCMELLON, EDWARD DEFENDANT: IBNA

MURPHY, RICHARD DEFENDANT: IBNA

INDICTMENT #:

GRAND JURY #: 40894/99

COUNTS
MURDER IN THE SECOND DEGREE ( 2 COUNTS )
RECKLESS ENDANGERMENT IN THE FIRST DEGREE

FIRST COUNT

THE GRAND JURY OF BRONX COUNTY, BY THIS INDICTMENT, ACCUSES THE DEFENDANTS OF THE CRIME OF MURDER IN THE SECOND DEGREE COMMITTED AS FOLLOWS:

THE DEFENDANTS, ACTING IN CONCERT WITH EACH OTHER. ON OR ABOUT FEBRUARY 4, 1999, IN BRONX COUNTY, WITH INTENT TO CAUSE THE DEATH OF A PERSON, DID CAUSE THE DEATH CF AHMED DIALLO BY SHOOTING HIM WITH PISTOLS.

SECOND COUNT

THE GRAND JURY OF BRONX COUNTY, BY THIS INDICTMENT, ACCUSES THE DEFENDANTS OF THE CRIME OF MURDER IN THE SECOND DEGREE COMMITTED AS FOLLOWS:

THE DEFENDANTS, ACTING IN CONCERT WITH EACH OTHER, ON OR ABOUT FEBRUARY 4, 1999, IN BRONX COUNTY, UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFERENCE TO HUMAN LIFE, DID RECKLESSLY ENGAGE IN CONDUCT WHICH CREATED A GRAVE RISK OF DEATH TO ANOTHER PERSON, AND THEREBY CAUSED THE DEATH OF AHMED DIALLO, BY SHOOTING HIM WITH PISTOLS.

THIRD COUNT

THE GRAND JURY OF BRONX COUNTY, BY THIS INDICTMENT, ACCUSES THE DEFENDANTS OF THE CRIME OF RECKLESS ENDANGERMENT IN THE FIRST DEGREE COMMITTED AS FOLLOWS:

THE DEFENDANTS, ACTING IN CONCERT WITH EACH OTHER, ON OR ABOUT FEBRUARY 4, 1999, IN BRONX COUNTY, UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFERENCE TO HUMAN LIFE, DID RECKLESSLY ENGAGE IN CONDUCT WHICH CREATED A GRAVE RISK OF DEATH TO ANOTHER PERSON, BY SHOOTING WITH PISTOLS IN A BUILDING

GRAND JURY REPORT
COUNTY : BRONX

INDICTMENT CHARGES:

MURDER IN THE SECOND DEGREE
P.L. 125.25(1)

MURDER IN THE SECOND DEGREE
P.L. 125.25(2)

RECKLESS ENDANGERMENT IN THE FIRST DEGREE
P.L. 120.25

SCHEDULED ARRAIGNMENT DATE:
ARRAIGNMENT PART:
OTHER ASSOCIATED INDICTMENTS:

DATE COMPLETED: MARCH 25, 1999
ADA: JOHN CARROLL
BUREAU: INVESTIGATIONS BUREAU

STATEMENT OF DISTRICT ATTORNEY ROBERT T. JOHNSON

regarding the Indictment of

Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy

for the killing of

Amadou Diallo

March 31, 1999

The dispassionate and comprehensive investigation into the death of Amadou Diallo would not have been possible without the invaluable assistance of a number of law enforcement agencies and individuals.

To begin, I want to thank the Internal Affairs Bureau of the NYPD under the supervision of Deputy Inspector Kevin Gilmartin, and the Department's forensic analysis laboratory. I also wish to acknowledge the support of the United States Attorney's Office for the Southern District of New York, which worked closely with us -- as they have in the past -- to coordinate investigative efforts.

I also wish to express my deep appreciation for the extraordinary resources provided and efforts extended by the Federal Bureau of Investigation, Special Agents Ann Began and Robert Shea worked with us since the inception of the investigation, and the Special Projects Unit afforded us their expertise in ballistics and crime scene analysis. I also deeply appreciate the exceptional work by my own staff., particularly my Chief of Homicide, Edward Talty, who supervised the investigation, Senior Trial Assistant Paul Rosenfeld, Assistant District Attorney John Carroll and Detective Investigator Juan Crosas-Medina.

In the early morning hours of February 4, 19 of 41 bullets fired at Amadou Diailo ripped into his body as he stood blameless, unarmed and defenseless in the vestibule of his building. Today, after a seven week investigation, I am announcing that a Bronx Grand Jury has charged defendants Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy in a three count indictment with the intentional and reckless murder of Mr. Diallo by pistol shots, and the reckless endangerment of those inside the building into which they fired. To ensure the fairness of any trial, and to comply with my legal and ethical obligations, I have been constrained in what I have said for the last seven weeks and what I will say here. Some comment is necessary though, to promote public understanding about certain aspects of this case.

Upon notification of the shooting, my staff responded immedately to the scene to conduct an invesatigation. From that moment, and subsequently with the particular assistance of the FBI, they worked tirelessly to gather the evidence necessary to determine the facts and circumstances of Mr. Diallo’s horiffic death. Numerous witnesses were interviewed and extraordinary efforts were made to reconstruct the scene of that terrible event. However, some have asked why, as part of that investigation, my office diud not question the four defendants, who are New York City police officers, about what happened to Mr. Diallo. Implicit in the question is the view that the officers, as public servants, should have to explain their actions.

Of course, police officers have the same constitutional right to remain silent as anyone else, and the same privilege to retain an attorney. Thus, while my staff actually sought to speak with the officers on the morning of the shooting and thereafter about what occurred, we had no right to compel them to say anything at all. Similarly, while each had the opportunity to testify before the Grand Jury and to present an exculpatory version of the facts, the law is clear that no one can be compelled to testify without giving him complete immunity from prosecution. However, having chosen not to waive immunity and present their versions, these police officers cannot reasonably claim, as some have suggested, that their conduct should automatically be excused merely because they are police officers. They simply cannot have it both ways.

Regarding the charges, the Grand Jury indicted the defendants for two counts of murder in the second degree, the highest degree of murder legally applicable under the circumstances. The first count charges that the defendants, acting together, intentionally killed Mr. Diallo. This simply means that their conscious purpose at the moment they fired was to cause his death. Under New York law it is not necessary for the prosecution to prove before the Grand Jury, or at trial, that the defendants had any particular motive for the killing, or that they planned or "premeditated" it in any way. The second count basically charges that, regardless of intent, the defendants recklessly caused Mr. Diallo's death under circumstances demonstrating a depraved indifference to human life. In a similar vein, the Grand Jury indicted the defendants for one count of reckless endangerment in the first degree. This count charges basically that the defendants also demonstrated a depraved indifference to the life of any person inside the building into which they were shooting, and that the shooting recklessly created a grave risk of any such person's death.

If convicted of murder, the defendants face imprisonment for a maximum term of life. If convicted of reckless endangerment, they face imprisonment for a maximurn term of seven years.

I recognize, as others do, that the death of Amadou Diallo has a context larger than the facts of this case. Feelings of fear and frustration abound. Troubling questions have been raised, particularly in communities of color but certainly not limited to them, regarding police/ community relations, civil liberties and the issue of respect. Questions have also been raised about public safety. All of us cherish the reduction in crime, and none of us wants it to go back up. These questions must be addressed. Certainly we need law and order; but we should not have to sacrifice the freedoms they are designed to protect.

Let us be clear, however, that the indictment filed in this ease involves charges against four individuals for killing one unarmed person and jeopardizing others. As District Attorney, that is the case I will prosecute, as fairly, forcefully and effectively as I can, respectful of my obligations to do justice.

One final note regarding the trial team for this case. The team now consists of Assistant District Attorney John Carroll and Senior Trial Assistant Paul Rosenfeld, who did such fine work on the investigation of this case. Additionally, I am adding Seniro Trial Assistant Don Levin who successfully prosecuted Olice Officer Pablo Colecchia for killing a civilian, and Senior Executive Assistant Eric Warner, the team leader, who successfully prosecuted the Happy Land case, reported at the time to be the largest mass murderer in this country’s history.