March 28, 2016, 5:26 PM

Razzle Dazzle

DA Overcharged Liang, Then Overcompensated

By Richard Steier

COP GUILTY, BUT IT’S DA FEELING THE PANGS OF CONSCIENCE: Brooklyn District Attorney Kenneth Thompson’s decision to recommend no jail time for former Police Officer Peter Liang for his manslaughter conviction for fatally shooting Akai Gurley provoked strong reactions from all sides. While JoAnne Page (center), who as head of the Fortune Society helps former inmates re-integrate into society, viewed it as justice for an officer who already lost his job and will face continuing emotional and career problems as a result of his action, John Jay College Professor of Law and Police Studies Gene O’Donnell said, ‘I don’t see how you can make the claim that a life has been lost [but] let’s just move on.’

Police Officer Peter Liang had just been indicted on charges that included manslaughter for the fatal shooting of Akai Gurley nearly 14 months ago, as an Assistant District Attorney laid out a case of a young officer inadvertently firing his weapon and then going into full panic mode, first refusing to call in the incident to his Sergeant and then not attempting to give the stricken man CPR treatment as he lay dying in a fifth-floor stairwell of a troubled Brooklyn housing project.

As we walked from the courtroom where Officer Liang would be convicted exactly a year later to District Attorney Ken Thompson’s office for a press conference on the case, a veteran police reporter shook his head and said, “Some guys just aren’t meant to be cops.” He spoke with emotional weariness rather than anger, his words conveying that the rookie officer had the bad luck to find himself in a tough situation and responded in the worst possible way, producing the worst possible result.

Mr. Thompson brushed off as “totally baseless” the claim by Officer Liang’s counsel at the time, veteran Patrolmen’s Benevolent Association attorney Steve Worth, that he had tacked on a couple of misdemeanor charges aimed at turning the public against his client because he was bent on getting an indictment that would “prejudice him” against receiving a fair trial.

Unintentional But Still Culpable

He said the top count of manslaughter had been sought and obtained from the grand jury because the cop “ignored” his training in the Police Academy about keeping his finger off the trigger of his service weapon until he determined it necessary to shoot. “We don’t believe that Officer Liang intended to kill Mr. Gurley,” the DA told reporters, “but he had his finger on the trigger and he fired the gun.”

Arnie Kriss, a former prosecutor who also served as the NYPD’s Deputy Commissioner for Trials, said the following morning that he believed the manslaughter charge was “an overreach,” and that the more-appropriate count was the lowest one on which the DA’s Office obtained an indictment: criminally-negligent homicide.

There have been suspicions that prosecutors have sometimes lost cases against cops because they “overcharged” by asking for a conviction on a top count that a jury might be reluctant to accept, the best-known one being the acquittal by a jury in Albany of the four officers who fired 41 bullets in killing the unarmed Amadou Diallo on a Bronx stoop in 1999.

This time, however, despite some rocky moments when testimony by Officer Liang’s partner, Shaun Landau, didn’t hold up under cross-examination the way prosecutors had hoped, Mr. Thompson won his gamble, with jurors convicting on both manslaughter and official misconduct. It wasn’t expected that Officer Liang would get anywhere near the maximum 15-year sentence the top count carries. Gene O’Donnell, an ex-cop and ex-prosecutor who is now a Professor at John Jay College, said last year that he believed Mr. Liang wouldn’t draw jail time even if convicted.

That was not a widely shared opinion, though. Logically speaking, if Mr. Thompson was more interested in winning a felony conviction than in sending Officer Liang away for it, couldn’t he have made it easier on himself and his prosecutors by pursuing what would have seemed a layup of a criminally-negligent-homicide case?

At the time of the indictment, the DA insisted that neither he nor the grand jury intended to produce a make-up for the decision in Staten Island two months earlier not to indict Police Officer Daniel Pantaleo for his role in the death of Eric Garner. “This case has nothing to do with Ferguson or Eric Garner or any other case,” he said.

Didn’t Persuade Family

Yet in taking jail off the table—at least until Brooklyn Supreme Court Justice Danny K. Chun has final say April 14—the DA provoked reactions from Mr. Gurley’s survivors not unlike those heard from Mr. Garner’s family when the Staten Island grand jury decided not to even give a trial jury a chance to decide the question of Mr. Pantaleo’s innocence or guilt.

Three family members—Mr. Gurley’s mother, step-father and an aunt who had been particularly vocal going back to Officer Liang’s arraignment—released a statement saying, “This sentencing recommendation sends the message that police officers who kill people should not face serious consequences. It is this ongoing pattern of a severe lack of accountability for officers that unjustly kill and brutalize New Yorkers that allows the violence to continue.”

City Councilman Jumaane Williams was more restrained but no less pointed, saying that while he could have understood seeking a reduced sentence under the circumstances, “it is hard to accept…no prison time at all. The recommendation could have a chilling effect on accountability. It can provide the basis that any officer, even if convicted of man­slaughter, should not serve prison time as long as they did not ‘intend’ to kill an unarmed human being. Black life must be shown to have more value.”

A source in the DA’s Office declined to offer an explanation but said the decision was not motivated by second thoughts about the severity of the manslaughter charge.

Pressure From Asians

But there had also been a countervailing statement from Assemblyman Ron Kim of Queens, one of the city’s top Asian-American elected officials, that began, “The Asian-American community has sent a loud and clear message that we will not be subjected to double standards and that we will not be scapegoated for the failings of our justice system…The family of Akai Gurley deserves justice. We must be united in our pursuit to hold the NYPD accountable for placing two rookie officers on vertical patrol and for failing to train them in CPR, and hold [the Housing Authority] accountable for the deplorably dangerous conditions that residents and police officers are subjected to.”

That opening sentence was a reminder that in late February there had been more than 30 rallies held, from Brooklyn to Los Angeles, by Asian-American groups protesting Mr. Liang’s conviction as a case of “selective justice,” with a Chinese officer being convicted while white officers whose actions figured into the death of unarmed black men weren’t, or weren’t even indicted. And the head of the Chinese Action Network had vowed to work to defeat Mr. Thompson when he sought a second term next year, saying his organization didn’t care whether the challenger to the DA was Democratic or Republican, based on its belief that the DA’s work in convicting Officer Li­ang had been a “political movement.”

It was, of course, possible that politics played no role in the DA’s handling of the case at either end or points in between. Mr. Kriss said March 25 that he believed this to be the case, noting that whatever comfort members of the Asian community derived from his decision, it had provoked anger from the DA’s voting base. “Ken Thompson thought with his head and his heart and he made a tough decision,” said Mr. Kriss, who considers the DA a friend. “He made the decision on the merits, whether you agree with him or not.”

An Inexact Precedent

He noted there was the precedent of Police Officer Bryan Conroy being given probation rather than jail time for the fatal shooting of Ousmane Zongo in 2003. In that case, however, the cop was convicted only of criminally-negligent homicide; the jurors were deadlocked on a manslaughter charge.

Mr. Kriss also said there were the external factors to consider, from the stairwell being dark to the pairing of Officers Liang and Landau, that represented agency failures that contributed to the tra­g­edy. “You’ve got a Housing Authority where there were no lights, and a Police Department that put two rookie officers together. Police Officers have to be better trained to do this job when they do these dangerous patrols, putting their lives on the line every day.”

JoAnne Page, the president and chief executive officer of the Fortune Society, which helps ex-offenders re-integrate into society, said in a March 24 phone interview, “I think it’s the right decision. The District Attorney’s job is not only about punishment; it’s about justice.”

She contended it was consistent with other actions ta­ken by the DA in his first 27 months in office, from giving people with outstanding warrants for nonviolent crimes the opportunity to pay off their fines at times that wouldn’t cost them a day’s pay, to refusing to prosecute certain misdemeanors, to his office’s stepped-up effort to overturn wrongful convictions for murders that occurred during the tenures of his two predecessors going back three decades that have come to light only in the past few years.

Cop’s Mistake Not Only One

“Was it a mistake and a misjudgment on the part of the police officer? Yes,” she said of Mr. Liang’s wild, inexplicable shot the led to a bullet ricocheting off a wall and into Mr. Gurley’s heart. But the case against him also had the effect of “holding him responsible for things that were not his fault.”

And it is not, Ms. Page said, as if Mr. Liang has gotten anything resembling a free pass. He lost his job after a trial in which his attorneys basically acknowledged that he had panicked as part of their strategy to try to gain an acquittal. (Mr. Kriss was less sympathetic on this issue, saying, “To me the fact that he was fired as a Police Officer is not relevant as punishment. He was gonna be fired whether he was convicted or not.”)

“He’s going to pay for this for the rest of his life,” Ms. Page continued. “He’s going to have difficulty finding employment. I think the question is how much punishment is enough.”

Asked about the contention by some advocates, as well as Mr. Gurley’s family, that if a black civilian had inadvertently killed a cop, or even another civilian, it’s unlikely he would have been shown similar mercy before sentencing by the man who oversaw his successful prosecution, Ms. Page said, “They may well be right. I think what we have seen is that there are different standards and different punishment for black-on-black crime, black-on-white crime.”

‘Shouldn’t Pay for Garner’

“That doesn’t mean you do something excessive to this young man because there are other wrongs in this system. He should not be made to pay for Eric Garner.”

But Mr. O’Donnell, the John Jay Professor of Law and Police Studies, said there was an anomaly in Mr. Liang’s forcing the DA to take the time, expense and stress inherent in going to trial, succeed in convicting him, and then wind­ing up with the kind of deal the cop would have figured to be fortunate to get if he’d agreed to plead guilty shortly after he was charged.

“Usually if you accept responsibility pretty early on, and show real remorse, you get the best break,” he said in a phone interview. Instead, he noted, Mr. Liang had insisted on his innocence but while testifying in his own defense offered what in even the best light could be considered a hazy version of events. He insisted his finger had not been on the trigger of the gun when he stepped into the stairwell and had no idea how it had fired.

And, Mr. Kriss said, Officer Liang might have helped himself with the jury far more if he had apologized from the witness stand, rather than waiting until a day after Mr. Thompson’s decision was announced to do it in a meeting at the DA’s office with Mr. Gurley’s companion, Kimberly Ballinger. He scoffed at the idea that doing so would have undermined his defense, saying, “Everybody knew the facts and circumstances.”

It was actually the kind of defense that was far less likely to help a cop, Professor O’Donnell said, than one in which an officer could pre­sent it as a case of “him or me” because of some tangible threat the victim posed, or the officer thought he posed. “When you’re saying, ‘I shot the guy, he did nothing wrong,’ you’re halfway to convicting yourself,” Professor O’Donnell said.

‘Not a Civil-Rights Case’

If there was a mistake the DA made, he said, it was that “he helped put this case in the category of civil-rights cases”—the primary trial prosecutor was Marc Fliedner, Chief of the DA’s Civil Rights Bureau—‘‘when that’s not really what it was about. I don’t see this as a racial case.”

The fact that other cops had escaped prosecution in cases with similar outcomes—including a 2004 one in which another Housing cop, Richard Neri, shot an unarmed black teenager whose sudden appearance startled him, but he wasn’t indicted after testifying tearfully before a Brooklyn grand jury—didn’t mean this case could be filed under the heading of “Stuff Happens,” Mr. O’Donnell said.

Certainly there’s a segment of the black community that will do its best to keep that from happening when Officer Liang is sentenced, with Assemblyman Charles Barron doing his best Donald Trump imitation last week by vowing that there would be riots if Mr. Liang escaped with no jail time.

And except for the irresponsible threat, Mr. O’Donnell thought the anger expressed was valid. “I don’t see how you can make the claim that ‘a life has been lost [but] let’s just move on,’” he said. “The Chinese community is off base on this in trying to push back” by claiming Mr. Liang was singled out. “Where they’re not off base is on whether there’s the same level of solidarity for Chinese cops as there is for other cops.”

But, he continued, “It’s an extremely lucky break for him to not get prison. This is an interesting test of Thompson, since he’s not a throw-the-book-at-the-guy DA.

“The irony,” Mr. O’Donnell mused, “is that this is a benefit for the cop of having a progressive DA.”