The Case on Liang — A Politicized Tragedy?

On February 11, 2016, Peter Liang, the former NYPD police officer, was convicted for manslaughter in the second degree with a potential sentence of up to 15 years. While Liang was convicted on all 5 counts, in essence, the NYC prosecution made its case centered on the following two key charges: (a) Liang recklessly and carelessly fired in Mr. Gurley’s direction while patrolling a public housing building and caused the death of Gurley, and (b) Liang was reckless in not providing immediate and timely medical help to Mr. Gurley right after the accident. And after the verdict, Liang was quickly and summarily dismissed by NYPD. But if we are to take a more objective look at the facts in this case, regardless of past racial or legal injustice, one cannot help to ask: Is Liang really guilty as charged? And has justice really been served? Or is justice being used as a cover for something else here?

Here is a quick summary of the background of the case. In November 2014, Liang and his partner, both rookie NYPD police officers, were sent to patrol a public housing building, a known dangerous place for residents who live there, the building managers, and for police officers who are sent to patrol there. As a poorly trained rookie in a darkened stairwell where the lights have been in disrepair for many months, Liang was highly nervous and accidentally misfired his gun when startled by a loud noise. Liang and his partner were on the 8th floor at the time, but incredulously, the wayward bullet hit the wall and then ricocheted downward and pierced Mr. Gurley’s heart who was just entering into the darkened stairwell on the 7th floor. Now the mathematical probability of this fluke accident happening is probably close to an infinitesimal zero, and the best shot in the Navy Seal probably could not make that shot even if trying very hard. Nonetheless, it happened, and Gurley, an innocent passerby, died from the wayward bullet. It is a terrible and heartbreaking tragedy for Gurley and his family. And while Liang is certainly at fault here (and so is NYPD for poor and shoddy training and for callously sending two poorly trained rookies into a dangerous place). It was also plain and obvious that Liang had never intended to fire at Gurley. Liang didn’t even know that Gurley was at the lower level of the stairwell when his gun went off.

It should also be pointed out that in recognition of police officers often being in the line of fire, and may make unintended mistakes in a dangerous situation, our legal system has mostly not pursued criminal prosecution for similar to or worse offenses than Liang’s. So why would Liang be charged for manslaughter in the second degree this time, which is a very serious charge? So let’s cross-examine the two key charges by the prosecution, and ask some probing questions, and then you, dear readers, can be the jury to decide that while Liang had made some serious mistakes in this unexpected tragedy, whether there is really a criminal intent and a criminal case here, and whether Liang is guilty as charged.

Question 1. While it is easy for the prosecutor to say that Liang did not follow the police regulations properly and Liang should not have his finger on the trigger (but apparently NYPD did not provide proper training on that aspect of the regulation), is it unreasonable to expect when an officer is on high alert, he or she may have the discretion to be ready to fire at an imminent or unexpected threat in a dangerous environment? And the prosecutor conveniently neglected to tell the jury that two police officers were killed in the same area recently. And not being Superman, Batman, or Ironman etc., how many officers would not have their fingers on the triggers in similar situations? Actually an independent study showed that around 20% of the police officers habitually have their fingers on the trigger when they have their guns drawn and without even realizing it. And also since the prosecutor now knows the proper police regulations and protocols by heart, let’s put a police uniform on him (instead of his crispy sharp and nicely styled suit and tie), and send him to patrol those dangerous places. Would he put his finger on the trigger and be ready to shoot? You bet he would, and he may do much worse than Liang. So let’s not play the “holier than thou” game here, OK?

The prosecutor also claimed that it takes many pounds of pressure to pull the trigger (and therefore implying that Liang could not have accidently misfired). While this may be true in a normal situation (say you and I are sitting at a very safe courtroom as observers), the prosecutor apparently does not have one ounce of knowledge of a common physiological phenomenon, actually an acute stress response, in medical terms, called “fight, flight, or freeze” when one is in serious danger or facing an imminent disaster. Basically, there is an adrenaline rush that causes the heart to race faster and pump more blood in one’s body, and this adrenaline rush often gives one an unusual strength and reaction to fight or flee (i.e., flight) for one’s own survival (but some people may panic and freeze up instead, and more on that later). So the prosecutor asking each juror to try to pull the trigger in the courtroom is merely a clever trick and a game show, nothing more. There is simply no comparison between someone calmly doing this in a safe and undisturbed courtroom versus having to react instantly in a darkened and potentially dangerous stairwell. (And should the prosecutor really want to make a real and fair trigger-pulling test for the jurors, he should put them individually into a darkened and dangerous stairwell, and then the juror can have a real sense what Liang was experiencing at the time of the tragedy. But of course, wouldn’t we then be knowingly, purposely, recklessly, and negligently endangering the jurors?)

Question 2. The prosecution accused Liang of being reckless in not providing immediate medical help to Gurley right after the incident. But is that really true? There are two facts here. First of all, Liang and his partner did not know Gurley was shot by the ricocheted bullet until quite a while later. And when they finally did, Gurley’s girlfriend was already applying medical help under the instruction of a 911 operator. And furthermore, the real help showed up only a few minutes after Liang and his partner found that Gurley was shot. Secondly, and again, in that well-known acute stress response of “fight, flight, or freeze”, by the time Liang realized his unfortunate misfire had shot Gurley, Liang was in a state of “freeze” and total distraught now. In another word, he was now “like a deer caught in the headlights” (and drivers in areas where there is deer hopping around would know that danger very well when driving at night). So it is quite obvious Liang just froze up and was in a shock now, and can no longer function properly and rationally as a normal human being, let alone functioning as a police officer in that situation (this was confirmed by a superior officer who arrived at the scene later; and a side note: Liang also later wished that cruel ricocheted bullet had hit himself instead of Gurley). Furthermore, the prosecution neglected to tell us an inconvenient truth that because that wayward bullet pierced through Gurley’s heart, unless there were a cardiac surgery clinical suite right at the first floor of that public housing building, no medical help at the scene and at the time could have saved Gurley’s life, unfortunately.

Conclusion 1. I am not going to delve into some complicated legal wrangling here. But for this tragedy to be prosecuted as a criminal case, the accused needs to be proven to be knowingly, purposely, recklessly, or negligently causing someone’s death (i.e., mens rae or the criminal intent in the act). So while even the prosecution had to accept that “knowingly and purposely” could not apply here, the prosecutor knowingly, purposely, recklessly, and negligently pushed the charge that Liang was being reckless in this tragedy and carelessly fired in Gurley’s direction (as if for fun or sport?). But while Liang had made several serious mistakes here, he never, ever tried to fire the gun in Gurley’s direction. How could he when he didn’t even know Gurley was entering into the stairwell below him? So given all the known facts and extenuating circumstances, what the prosecutor said in his final concluding statement was very incendiary and the prosecutor, a defender of justice, was actually making a patently false accusation knowingly, purposely, and recklessly in his trying so hard to make his criminal case. So who is being RECKLESS here?? And is this the reckless kind of justice we want in this country? And how about we just skip all the inconvenient legal steps and go straight back to public lynching and kangaroo court?
Conclusion 2. So while Liang made many mistakes in this tragedy and is certainly no hero at all in this case (but NYPD is also at fault for many problems that lead to, directly and indirectly, to this tragedy), if the prosecution had some common sense or had not been so ignorant of the well-known phenomenon of “fight, flight, or freeze” (or are they being selectively ignorant?), they would not have recklessly pushed this case as a criminal case. In fact, the reckless and happy-go-lucky “manslaughtering” by the prosecution of a hapless and helpless Liang in the courtroom for a noncriminal tragedy was perhaps playing out as something else other than for justice? But for what? And that leads to my third and last big question(s) here.

Questions 3. The poor police training and some nonsensical patrolling protocol aside, why had NYPD and the police union kept so silent on Liang’s case in contrast to traditionally a very vigorous and public defense of one of their own? Were they simply embarrassed by the poor training and poor internal control? And had NYPD and the court ever asked for and performed a psychological evaluation on Liang right after the incident and/or during the trial (I have to say I’m very surprised that the defense did not call for psychological evaluation or call for medical experts as witness either)? It seems that the strong legal help that would be normally provided by the police union for one of their own was no help at all to Liang in this case (and Liang’s family eventually had to find new legal help for Liang, and the new lawyers may not have had sufficient time to prepare for the case). So did the upper echelon of NYPD and the police union make some kind of conscientious calculation to sacrifice Liang here and callously throw a hapless and helpless Liang under the bus? And why, in contrast to the past practice, was the prosecution so intent in bulldozing this tragedy forward as a criminal case? And also why would the judge allow the prosecutor’s false concluding argument to stand and allow it to misdirect the jury? Was it inexperience or something else? And given the recent and ongoing tension between police force and the community of color, is there some racial politics going on here as well? And did the sworn and supposedly impartial defenders of justice and the say-anything-to-get-elected politicians decide to put Liang out as a scapegoat for all the past wrongs? If so, is this real justice or just a showcase justice? Is this a political game as a result of a much bigger societal problem? The questions here are very troubling and disconcerting. And I profess I do not know the answers to these questions.

The final concluding statement. Dear readers, the problem we have at hand may be far bigger than the Case on Liang. What we have is a system failure here — the disrepair and neglect of the public housing building, the poorly trained rookie police officers and very questionable patrolling practices, an overreaching and reckless prosecution, the underlying racial tension, and the possible and convenient scapegoating of Liang for racial politics. Yes, we have had a terrible tragedy here. BUT some players may have expediently and conveniently politicized this terrible tragedy, and they may have played justice for politics and politics for justice. But by doing so, we may be creating a political and legal cancer with a far reaching implication and threat for our country as it will spread, eat away, and eventually kill Rule of Law, one of the key foundations of our country. So let’s stop playing politics, at least on this case, and at least in our legal system. Let’s stand up, and let’s stand together, whether we are black, white, Latino, or Asian, for real justice and for a better America for every American.

Thank you dear readers, and here I shall rest my case and let you be the jury.

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