By Charisma L. Troiano, Esq.
Brooklyn Daily Eagle
Late Friday afternoon, Brooklyn District Attorney Kenneth Thompson announced that his office will present the case of an NYPD officer who shot an unarmed man in a Brooklyn stairwell to a grand jury. However, Thompson released little detail as to when the presentation will occur and did not identify the possible charges to be levied against the officer involved.
“I expect to present evidence regarding the Nov. 20, 2014, shooting of Akai Gurley to a grand jury because it is important to get to the bottom of what happened,” Thompson said.
Thompson also gave no indication as to when the grand jury will be selected and impaneled or whether there is a deadline for a decision.
“There is no timetable for the grand jury to be impaneled or for its determination to be reached,” Brooklyn’s top prosecutor said. “I pledge to conduct a full and fair investigation and to give the grand jury all of the information necessary to do its job. That information is still being gathered.”
Thompson’s announcement came just two days after a Staten Island grand jury declined to indict NYPD officer Daniel Pantaleo in the chokehold death of unarmed, black man Eric Garner. Garner was a father of six. The chokehold and the incidents immediately afterward were captured by cell phone video footage. And last month, a grand jury in Ferguson, Missouri, refused to find facts sufficient for a charge against officer Darren Wilson, a white officer, for the shooting death of unarmed black teen Michael Brown.
“The decision by the district attorney to take this case to a grand jury is a meaningful step in the right direction,” said U.S. Rep. Hakeem Jeffries (D-Brooklyn), whose representative district includes the East New York housing projects where Gurley was killed.
Gurley was shot by probationary officer Peter Liang while conducting a vertical patrol of the stairwells of the Louis H. Pink housing projects in Brooklyn. Facts made public are that Liang and partner Shaun Landau went to the eighth floor landing and started to walk their way down. According to the police, Liang, holding a gun in his left hand and a flashlight in his right hand (Liang is left-handed), attempted to turn a doorknob when his gun went off, possibly ricocheting, hitting Gurley who was walking down the darkened stairway below.
“Everything points to accidental discharge,” Police Commissioner William Bratton said.
But some in the Brooklyn community question that immediate characterization of the facts.
“This was not an accident,” Assemblymember-elect Charles Barron said at a November press conference, intimating that the incident may have been an intentional discharge with Gurley being an accidental victim.
Absent proof that Liang’s gun discharged through involuntary means, prosecutors will likely ask the grand jury to consider whether or not Liang was acting in accordance with police protocol when handling his gun when it fired. In other words, was Liang following NYPD policy when he had his gun drawn during the vertical patrol?
It is probable the grand jury will begin its inquiry at “what police are trained and authorized to do in these kinds of situations,” said professor Delores Jones-Brown of John Jay Criminal College.
As Jones-Brown explains, if Liang’s actions were against NYPD protocol, charges levied would be based on how far Liang diverted from the care he was obligated to exercise. The professor told the Times that, if Liang’s action goes against training and police guidelines, the next step would be to determine how much of the officer’s behavior had diverged from “the kind of care he should’ve been exercising.”
Federal statistics note that grand juries fail to indict police officers the majority of the time — a factor that may affect the Gurley case. Research indicates that of the 644 cases of police-involved incidents reviewed in a National Institute of Justice-funded study, officers rarely faced indictments or criminal charges.
“Historically, I would be foolish to have faith in that,” Montgomery said of his limited expectation that the Gurley grand jury will reach an indictment.
Lessons from Ferguson and New York City
As prosecutors from Brooklyn’s Civil Rights Bureau prepare their case, recent events make clear how the actions of a district attorney can impact the public’s trust in the criminal justice system and its sense of justice. “Like millions of New Yorkers, I am saddened by the grand jury’s decision not to indict in the Eric Garner case,” said New York City Public Advocate Letitia James. “Video footage of the incident clearly shows the banned chokehold that resulted in Mr. Garner’s death, and the fact that there will be no public trial is shocking and unconscionable."
The general consensus by those who have viewed the Garner footage is that Pantaleo placed Garner in a chokehold — a prohibited takedown measure except in cases of imminent threat — ultimately causing his death, thus warranting a criminal indictment, facts sufficient to support a criminal charge. It is up to a jury to make an actual determination of guilt or innocence.
Brooklyn pols have expressed confidence that any case presented by Thompson’s office will be fair and based on facts.
“I do believe that D.A. Thompson will let the facts and the evidence and the law guide his office into doing the right thing,” U.S. Congressman Hakeem Jeffries said in a press conference days after the Gurley shooting.
But Staten Island D.A. Richard Brown disclosed little information about what evidence was presented to the grand jury to lead to a conclusion that there was “no reasonable cause” to indict Pantaleo for the chokehold death of Garner in spite of video footage.
State A.G., B'klyn D.A. Disagree on Special Prosecutors
One criticism of the criminal justice system post-Ferguson and Staten Island grand juries is the cloak of secrecy surrounding the grand jury process.
“Equally important, especially in the wake of what has taken place after the deaths of Michael Brown and Eric Garner, is reform to our grand jury system,” Brooklyn’s Borough President Eric Adams said in a New York Times op-ed earlier this month. “Open, preliminary hearings in court can and should determine if a case should be stepped up to a trial.”
“We must eliminate the inherent conflict of interest when a district attorney seeks to indict members of the police department,” James announced, calling for a “special prosecutor” to be assigned in “all cases of police misconduct.” “[T]he handling of police shootings should be wholly separated from local grand juries,” Adams recommended.
Thompson made note of his decision not to appoint a special prosecutor in the Gurley case.
“As to those who have called for a special prosecutor to handle this case, I respectfully disagree,” said the district attorney.
“[I] was elected by the people of Brooklyn to do this job without fear or favor and that is exactly what I intend to do,” Thompson said.
On Monday, Thompson doubled-down on his commitment to follow the facts after calls were made by New York Attorney General Eric Schneiderman for the power to appoint special prosecutors on cases involving police misconduct.
"This crisis of confidence is long in the making and has deep roots. But it is not a problem without a solution," Schneiderman wrote in a letter to Gov. Andrew Cuomo, which was released this week.
The A.G. cites the "close working relationship between the county district attorney and the police officers he or she works with" as the "common thread" in this identified crisis.
“The question is whether there is public confidence that justice has been served, especially in cases where homicide or other serious charges against the accused officer are not pursued or are dismissed prior to a trial by jury,” Schneiderman continued.
"As the duly elected district attorney of Brooklyn, I am adamantly opposed to the request by the New York state attorney general for authority to investigate and potentially prosecute alleged acts of police brutality. No one is more committed to ensuring equal justice under the law than I am," Thompson shot back.
"[L]ocal prosecutors who are elected to enforce the laws in those communities should not be robbed of their ability to faithfully and fairly do so in cases where police officers shoot, kill or injure someone unjustly," the D.A. added. "The people of Brooklyn have voted for their district attorney to keep them safe from all crimes. ... The attorney general’s proposal would override their choice — and that should not happen.”