September 30, 1999

Charges to Stand in Diallo Case

By Leonard Levitt STAFF WRITER

A State Supreme Court judge in the Bronx yesterday refused to dismiss murder charges against four Street Crime Unit officers accused of killing West African immigrant Amadou Diallo.

At a pretrial hearing, Acting State Supreme Court Justice Patricia Williams rejected defense motions for dismissal which had faulted the Bronx District Attorney's office for not including a "justification" defense in its presentation to the grand jury.

In her written decision, Williams concluded that the legal instructions that prosecutors provided to the grand jury were "adequate to advise that body of the applicable law and there was no evidentiary basis to support a charge of justification." "The evidence was sufficient to support the charges," Williams said in a 24-page decision, adding that the evidence presented to the grand jury was "competent and legally admissible."

Lawyers for the four cops had argued that the officers feared for their safety and were justified in shooting the unarmed Diallo early in the morning of Feb. 4, even though they were mistaken in their belief that he was carrying a gun. The officers fired 41 shots at Diallo, hitting him 19 times as he stood in the vestibule of his Soundview apartment building. The officers were charged with second degree murder and other charges.

As Williams held her hearing, the shouts of hundreds of officers could be heard as they demonstrated outside the courthouse. Both of Diallo's parents were present in court, as was the Rev. Al Sharpton.

The sole witness who testified yesterday was Lt. Victor Pucci, a street crime supervisor who responded to the shooting. Pucci testified that Sean Carroll - the officer who, according to defense lawyers and news reports, mistakenly shouted that Diallo had a gun - told him he "fell down a stoop or steps at the location," apparently during the shooting.

Previously, defense attorneys identified Officer Edward McMellon as the officer who fell during the shooting, injuring his tailbone. The attorneys have speculated that his falling might have led the others officers to believe he had been shot, prompting their firing at Diallo. Kenneth Boss and Richard Murphy are the the other officers involved.

The defense was not surprised at Williams' decision on the dismissal motion."We didn't take a hit at all," said attorney Stephen Worth, who is representing McMellon. "This is a motion you make in every case."