Chief-Leader
Friday, February 13, 2015 5:00 pm


Razzle Dazzle

Unlike in Garner Case, Facts Won’t Be Secret

By Richard Steier

A friend of mine who worked for one of the city’s tabloids a long time ago once described the vast difference in the information he’d get from two columnists on those nights when they couldn’t get back into the office before deadline (in those ancient times before laptops) and so called in their notes to the paper’s rewrite desk.

One columnist offered precise details: not just the neighborhood he was calling from but the location; quotes from people who had both first and last names, as well as phone numbers where they could be reached in case someone on the desk had any questions about what they had said.

The other one would simply announce, “Hey, I’m in East New York” and reel off quotes from people for whom he had first names or street names only. And none of his sources ever seemed to have phone numbers, which was sometimes true for people in the city’s poorer neighborhoods at that time in the early 1980s, but the columnist seemed to find more than his share of them.

Earned-Credibility vs. Faith

Where one columnist cemented his credibility with details and the ability to check them, the other asked his editors and his readers to make a leap of faith. The contrast was stark enough to raise my friend’s eyebrows, and he was not surprised when the latter columnist was subsequently discovered to have made up a conversation with a soldier he “met” on an overseas assignment. The thing he found strangest was that his bosses didn’t express any suspicions about the columnist’s veracity before that.

That all came back to me last week as a result of a similar contrast between the information unveiled by the Brooklyn District Attorney’s Office in the wake of a grand jury’s indictment of Police Officer Peter Liang for manslaughter, criminally-negligent homicide and other charges in the shooting death of Akai Gurley, and the utter lack of real details provided by the Staten Island DA’s Office last December in the wake of another grand jury’s decision not to indict Officer Daniel Pantaleo in connection with the death of Eric Garner.

The discrepancy was that much more egregious considering that Mr. Liang’s trial will offer both sides the opportunity to put their cases before the public; the Staten Island grand jury’s inaction prevented an airing of the facts in full, leaving people to wonder how the shocking video of Mr. Pantaleo using a chokehold to bring Mr. Garner to the ground and then mashing his face into the pavement even as the man kept saying “I can’t breathe” didn’t produce criminal charges.

Brooklyn District Attorney Ken Thompson, during a press conference following Officer Liang’s arraignment in Brooklyn Supreme Court a bit further up Jay St., quietly lit into what he believed the cop had done criminally wrong, even as he rebuffed a question about whether the indictment had been motivated at all by the lack of charges in the Garner case.

“I think it’s unfair to say the grand jury did anything because of Eric Garner,” he told the 75 or so media people packed into one of his offices. “This case has nothing to do with Ferguson or Eric Garner or any other case.”

He seemed to be reaching a bit with the manslaughter charge, which in this case is predicated on the argument that Officer Liang, not that long removed from his training at the Police Academy, “ignored” the instruction he had received about keeping his index finger off the trigger of his gun while patrolling with no imminent threat to his life or anyone else’s, causing him to fire for reasons that could range from being slightly off balance to having panicked at a sound in the stairwell of the Louis Pink Houses in East New York when he opened the door to it.

Action Trumps Intent

“We don’t believe that Officer Liang intended to kill Mr. Gurley,” the DA said, “but he had his finger on the trigger and he fired the gun.”

A short time earlier, the cop’s attorney, Steve Worth, had told reporters outside the second-floor ceremonial courtroom where the arraignment was conducted before Brooklyn Supreme Court Justice Daniel Chun that he opted not to have Mr. Liang testify before the grand jury—in contrast with Mr. Worth’s decision regarding Officer Pantaleo—because he was convinced that Mr. Thompson all along had “intended” to secure an indictment.

He made it sound as if the DA had a political agenda, although the contrast could be read another way: that in Staten Island he believed that DA Dan Donovan would not pursue an indictment that vigorously because of the political realities in that borough, the whitest and most pro-police one in the city. Such suspicions were further nurtured when, less than a month after the grand jury produced no indictment, U.S. Rep. Michael Grimm resigned and Mr. Donovan quickly emerged as the prime candidate—and to this juncture the only candidate in either major party—to succeed him.

An Appropriate Move

Arnie Kriss, a former prosecutor in Brooklyn back in the 1970s who subsequently served as the NYPD’s Deputy Commissioner for Trials and has also worked as a defense attorney, said in a phone interview the morning after Mr. Worth’s comment that, contrary to the defense attorney’s implication that there was something inappropriate about going to a grand jury dead set on gaining an indictment, he had never taken that step unless he had “reasonable cause” to believe one should and could be secured.

“It would be up to the grand jury to make a decision,” Mr. Kriss said, disputing Sol Wachtler’s famous statement that a prosecutor could manipulate the process to produce charges against a ham sandwich.

More likely, he said, Mr. Worth made “a calculated decision” not to have Mr. Liang testify for a couple of reasons.

“You say to yourself, ‘What is the probability that if I put my defendant before the grand jury, there’s a chance there would be a finding of no true bill,’” meaning no charges would be brought. “Steve made a decision that there is going to be an indictment no matter what. Steve’s a fine lawyer. It was a gamble to put this guy in [the grand-jury chambers] to lock him in to a statement” that could be used against Officer Liang at trial.

Tough Case to Prove?

The fact that an indictment was inevitable, Mr. Kriss continued, didn’t mean it would be easy getting a conviction.

“I think it’s an overcharge,” he said, referring to several of the counts against Officer Liang. “I think manslaughter [Second Degree] is an overreach. I think crim-neg [criminally-negligent homicide] is the right charge. I don’t see assault,” the third felony count in the indictment.

He noted that reckless endangerment was a misdemeanor. Mr. Worth had protested two other misdemeanor charges of official misconduct as an attempt to prejudice a jury against Officer Liang, with one of them concerning his alleged failure to administer medical assistance to Mr. Gurley upon discovering him lying in the stairwell by the fifth floor, three floors down from where the officer had fired what proved to be a fatal shot. Mr. Kriss said, however, that it was the prosecution’s best hope of getting a conviction if a judge or jury didn’t find Mr. Liang guilty of criminal negligence resulting in death.

“I think this is gonna be a very tough case to prove beyond a reasonable doubt,” he said.

Mr. Worth, asked Feb. 12 whether he would seek a change of venue, said, “Not at this point.” If he opts to have the case proceed in Brooklyn, it would seem likely he would want to do so before a judge rather than a jury because of the emotional nature of the circumstances that led to Mr. Gurley’s death, though he called that possibility “way too soon to tell.”

‘I’m Going to Be Fired’

During the hearing before Justice Chun, Marc Fliedner, Chief of the Brooklyn DA’s Civil Rights Bureau, offered a preview of his case in talking about Officer Liang’s statement to his partner right after firing the fatal shot: “I’m going to be fired.”

According to prosecutors, a four-minute argument ensued between the cop and his equally inexperienced partner, Shaun Landau, because Mr. Liang balked at calling his supervisor to report what had happened. And when the two cops finally descended the staircase to find Mr. Gurley prone and bleeding badly from his wound, rather than administer medical assistance as he was trained to do, Officer Liang, according to Mr. Fliedner, “just stood there.” It was left to Mr. Gurley’s girlfriend, Melissa Butler, to make the initial effort at cardiopulmonary resuscitation before other officers responding to the report of a shooting stepped in to assist. Mr. Thompson later said that at least 10 minutes elapsed between the moment of the shooting and the point at which Ms. Butler began the CPR attempt.

He declined to respond to questions about the lack of charges against Mr. Landau, but another source said that the cop had cooperated with the investigation and testified before the grand jury under a grant of immunity.

At his press conference, the DA called Mr. Gurley, “an innocent, unarmed man... he had done absolutely nothing wrong. He described him as “the father of a 2-year-old daughter,” “a son,” “a big brother,” “a companion.”

‘No Winners Here’

“There are no winners here,” the DA said. “An innocent man’s life has been taken and a young police officer... now stands accused.”

Asked whether the NYPD bore any responsibility for the death, Mr. Thompson demurred, saying, “At the end of the day, it is Mr. Liang who pulled the trigger.”

Mr. Kriss said that would not absolve the NYPD of civil liability in the case. Police Commissioner Bill Bratton had previously stated his intention to end the practice under his predecessor, Ray Kelly, of assigning as partners in rough neighborhoods two inexperienced officers, vowing to return to the old system of teaming new cops with seasoned officers, but the fact that logistical issues delayed implementation of that change won’t matter much in a civil suit, Mr. Kriss said. He also predicted that the Housing Authority would pay a price for failure to maintain the Pink Houses properly, leading to both the delay in elevator service that prompted Mr. Gurley and Ms. Butler to take the stairs, and the darkness in the stairwell that may have been a factor in Officer Liang having his gun drawn and his finger on the trigger.

Members of Mr. Gurley’s family called out “Murderer!” as Officer Liang left the courtroom, and his aunt, Hertencia Peterson said angrily, “Murdered my nephew and out on bail.”

Actually, he didn’t have to post bail; Mr. Fliedner suggested to the judge that Officer Liang be released on his own recognizance until the next court date May 14. Ms. Peterson’s characterization of what he had done was overly harsh, if understandably so.

PBA: Consider Danger

In a statement issued the day before the arraignment, after it became known that the grand jury had indicted the officer, Patrolmen’s Benevolent Association President Pat Lynch said of Mr. Liang, “The fact that he was assigned to patrol one of the most dangerous housing projects in New York City must be considered among the circumstances of this tragic accident.”

True enough. But cops take the job knowing its perils, and are aware of the possibility that they could wind up patrolling just such a place and must rely on their training and their partners to help them control fears that might naturally arise.

At the heart of the prosecution’s case is that Mr. Liang’s failure to heed his training accounted for the tragedy, from his failure to hold his weapon properly to his panicked reaction after firing it, when he allegedly balked at calling the incident in for a lengthy period and, upon finally encountering the dying man, failed to do anything to assist him.

By that account, he proved that he simply wasn’t up to the job, and this seemed particularly difficult to dispute. The less-settled question was whether the DA could convince a judge or jury that his actions were criminal.

But unlike in the Garner case, that question, and the facts surrounding it, will be marshaled by both sides and get a full airing in a proceeding open to the public. The system will have offered the promise of some clarity about the death of a man at the hands of a police officer in a way that the Garner proceeding in Staten Island failed to do.