Robert Brown, an ex-NYPD Captain who is one of the attorneys for Police Officer Peter Liang, performed the equivalent of a station-house grilling on his client’s former partner, Shaun Landau, pointing out inconsistencies between his witness-stand testimony and what he had previously told police investigators and prosecutors, as well as the grand jury that indicted Mr. Liang on charges of manslaughter, criminally-negligent homicide and official misconduct in the accidental shooting of Akai Gurley. He also elicited testimony that showed neither cop had been required to learn first-aid and CPR because they were ‘fed the answers’ to test questions in the Police Academy.
The trial of Police Officer Peter Liang for the accidental death of Akai Gurley in a Brooklyn housing project 15 months ago had as one of its key subplots his partner, Shaun Landau, testifying for the prosecution.
It is a work relationship unlike most others, since the partners depend upon each other for protection not only from criminals but from their own errant impulses under stress. Trust in the partner can be the difference between a cop feeling compelled to use his weapon precipitously or waiting an extra beat to better assess the situation because of the confidence that if the situation is as bad as his initial impression tells him, he’s got someone close by to help him get through it.
When one of the pair does something improper, the question for the second one is a double-edged sword: is his duty to see that no adverse consequences rain down on the partner, or is it to the public that pays his or her salary and depends on the kind of honesty that often has nothing to do with money?
Conflicting Loyalties’ Collateral Damage
Officer Landau, judging by his testimony under artfully tough cross-examination Feb. 2 and 4 by one of Officer Liang’s attorneys, Robert Brown, got himself caught between those conflicting loyalties, and the prosecution case by the Brooklyn District Attorney’s office may have taken the worst of the crash.
Mr. Brown is a former NYPD Captain, and his familiarity with police procedure had been on display earlier in the day as he cross-examined Det. Joseph Agosto, a department firearms instructor based at its outdoor range in Rodman’s Neck up in The Bronx, last Tuesday.
Assistant District Attorney Marc Fliedner took the Detective through the protocol for handling a gun on the street and the training that officers like Mr. Liang get in the Police Academy before beginning patrol duty: five days of basic firearms training and eight days dealing with tactics. Mr. Fliedner elicited from Mr. Agosto the fact that the kind of Glock that Officer Liang used as his service weapon had a safety trigger “to make sure that the gun if dropped would not go off,” and that if the gun were held properly, with the trigger finger on the side of the gun, it could not be inadvertently fired. Before putting a finger on the trigger, Detective Agosto said, cops “have to identify the threat and identify the target.”
That is also the basis for cops resorting to deadly force, Detective Agosto testified: “when a police officer has reason to believe that deadly physical force is being used against him, her or somebody else.” But Mr. Brown sought to establish that this protocol covered intentional shots, not accidental ones.
The training manual states, the Detective testified, “Before entering a room, attempt to open a door fully.”
Officer Liang is on trial under suspicion he improperly had his finger on the trigger as he tried to open the door to the eighth-floor stairwell of the Louis Pink Houses in East New York with the same hand in which he held the gun. When he was startled by a sound, his finger reflexively squeezed the trigger as he tried to compose himself, and the bullet he fired struck the wall of the stairwell one landing below and ricocheted into the chest of Akai Gurley, who was heading down the stairs with his girlfriend.
Mr. Brown elicited from Detective Agosto that there were roughly 20 accidental discharges a year in the NYPD, based on the number actually reported by officers, and that there were cases of “startled-response reaction” in which the gun hand “clenches up…with the gun you’re not gonna drop it; you’re probably gonna hold it tighter.”
The lawyer tried to establish that there was nothing in the NYPD Patrol Guide that specifically set criteria for when a cop can put his finger on the trigger; during the first week of the trial one of the officers summoned to the scene after Mr. Gurley was shot testified that his inclination upon arriving at the building was not to have his gun out when he entered the lobby so as to avoid creating a sense of alarm among residents.
Mr. Brown attempted to use the cross-examination to buttress an argument that he and co-counsel Rae Downes Koshetz have made that the Brooklyn DA’s Office has treated the case more severely than is warranted because of the public outcry in the wake of the Nov. 20, 2014 shooting, just four months after the death of Eric Garner, in which a contributing factor was a Staten Island cop’s apparent use of an NYPD-banned chokehold.
“In your experience,” the attorney asked Detective Agosto, “are you aware of any police officer being charged with manslaughter for an accidental discharge?”
Mr. Fliedner objected, and Brooklyn Supreme Court Justice Danny Chun sustained it, barring the Detective from making Mr. Brown’s point for him.
A Defining Face-Off?
That set the stage for his confrontation with Officer Landau, who was the next and last witness of the day. It didn’t have the emotional impact of the testimony that began the day from Melissa Butler, Mr. Gurley’s girlfriend who had desperately tried to use chest compressions to revive him amid her tears and what she described as a pool of his urine and blood on the floor of the stairwell. But while less dramatic, it may have at least as significant an impact on the outcome of the case when jurors ultimately reach their conclusions.
Officer Landau entered the Police Academy, in a class that included Officer Liang, in July 2013, graduating five months later. He was assigned to Public Service Area 2 of the NYPD’s Housing Bureau, covering Brooklyn’s roughest area, Brownsville and East New York. The two of them had already worked together with some frequency by the time they officially became partners in March 2014.
They were working an overtime tour that began at 5:30 p.m. on Nov. 20, 2014, he testified. There had been a shooting inside the Pink Houses a week earlier, and their Sergeant informed them during roll call that they would be doing vertical patrols in the long-troubled development, checking stairwells and the roof of one of the buildings in the complex. At about 9 that evening, the Sergeant picked them up for a meal run, and then they returned and took the building’s elevator to the eighth floor, from which they could reach the roof and then work their way downward.
It was fairly common to find illicit activity in the vicinity of the roof, much less so to encounter people on the stairwells, Officer Landau testified. There was a window on the door leading to the eighth-floor stairwell, and through it he could see it was “pitch black” in the stairwell. He didn’t know whether the bulb had burned out or had simply been unscrewed.
A Shot, Then Footsteps
Officer Liang took out his flashlight and his service weapon and “pushed off with his right shoulder” to go through the door. “I just hear a shot,” Officer Landau testified under questioning by Mr. Fliedner.
Abruptly, Officer Liang returned to the hallway. “I heard footsteps,” Officer Landau told the jury. “It sounded like running.”
So he said to his partner, he recounted ‘What the f---- happened’—excuse my French—and he said ‘it went off by accident.’
“I was in shock,” Officer Landau continued. “Because the gun just fired out of nowhere.”
He testified Officer Liang, who at that point had no idea that the bullet had struck anyone, “just said, ‘I’m fired.’ I said, ‘No you’re not—it was just an accidental discharge.’”
That didn’t mollify Officer Liang, and so Officer Landau testified that he then urged him to call their Sergeant and let him know what happened. His partner responded, he said, by urging him to make the call, but Officer Landau refused, explaining, “He was the one who had the discharge—I felt he should call.”
One of the changes Police Commissioner Bill Bratton said he sought to institute when he returned to the NYPD 11 months earlier was to end the practice that had developed under Operation Impact of pairing young officers in high-crime neighborhoods rather than putting inexperienced cops with veteran officers. One reason had been that the younger officers, feeling pressure to meet goals for arrests and summonses and often lacking the street smarts to differentiate between the bad guys in a neighborhood and those merely dressing the part to avoid becoming targets themselves, had blown up the department’s stop-and-frisk numbers until the high percentage of bad stops spurred a public outcry that heavily influenced the 2013 mayoral race.
But what Mr. Bratton subsequently called a lack of experienced officers who could be paired with the rookies had led to Officers Landau and Liang working together in precisely the kind of high-stress assignment where a cooler, older head could be invaluable. Now their inexperience was showing itself in embarrassing ways, as they argued over who should make the call while three floors below them the tragedy set in motion by Officer Liang’s loss of balance, nervous reaction or some combination of the two was playing out.
Officer Liang took his cell-phone from him and punched the Sergeant’s phone number into his own phone; Officer Landau took back his phone and nothing happened for what he testified was approximately four minutes.
“I had to decompress—just the initial shock of everything,” he testified. They still didn’t know, by his account, that someone had been on the receiving end of the errant bullet squeezed off by Officer Liang, yet were too consumed by their anxiety to check immediately whether any damage had actually been done.
When they finally walked into the stairwell, Officer Landau shined his flashlight against the wall to see if there was a bullet-hole to be found. He said he heard some noise coming from several floors below that he thought might be “crying, something like that.”
A Man on His Back
The seventh-floor stairwell was also “pitch-black,” he testified, but they made their way down toward the fifth floor, where “we saw someone laying down…on his back…His eyes were open…there was a woman there. She was crying.”
At that point a young woman sitting on a front-row bench reserved for Mr. Gurley’s family and friends hurriedly left the courtroom. All he did, Officer Landau said, was to instruct his partner “that he had to put it over the radio that someone was shot.”
He said Officer Liang had exclaimed, “Oh my God, someone’s shot!” Neither of them did anything to assist Ms. Butler, who was frantically trying to perform chest compressions to revive Mr. Gurley. Mr. Landau said that he went into a hallway so that other officers responding to the scene would see him right away, and that eventually Officer Liang followed him, but they didn’t speak. A supervisor arrived and took his partner’s gun, he testified, and then “Officer Liang just fell to the floor and started crying…EMS came and they took us to the hospital,” where they were treated for trauma.
His narrative served the prosecution’s purpose of showing that Officer Liang after the accidental discharge had been too overcome by the possible impact on his career to follow any of his training for dealing with what confronted them, and so neglected his duty to try to render aid to the man who was dying due to his carelessness.
NYPD Future Up in Air
Mr. Fliedner tried to inoculate Officer Landau against the cross-examination that would come from Mr. Liang’s side, telling the jury that he had been placed on modified assignment, minus his shield and his gun, right after the shooting and remained there. Hanging over him are NYPD administrative charges and a lawsuit brought by Mr. Gurley’s family in which he is a defendant, along with Officer Liang, the NYPD and the city.
As a result of his agreement with the Brooklyn District Attorney’s Office to cooperate in its investigation and testify at trial, Officer Landau said, “I cannot be criminally prosecuted” but got no promises regarding his job status or the civil suit. “I was just told that anything I said would not be used against me” in a criminal prosecution.
Getting that information out there didn’t help much once Mr. Brown began his cross-examination. He only needed 15 minutes before the case adjourned until two days later to dirty up Officer Landau enough to damage his value as a witness and stir the waters of reasonable doubt regarding two of the charges against Officer Liang.
The attorney asked Officer Landau about statements he made to police investigators the morning after the shooting, one of two internal interviews he submitted to in a six-day period. Back then, he had stated, “Officer Liang put over the radio that there was an accidental discharge. MOS (member of the service) involved, male shot. We need a bus,” referring to an ambulance.
Not in His Testimony
Mr. Brown said, “You never mentioned any of this in your direct testimony, did you?”
During an NYPD administrative interrogation on Nov. 26, 2014, he continued, Officer Landau stated, “Liang put it over the radio… he tried to put it over a few times.”
“You realize,” Mr. Brown asked Mr. Landau with some heat in his voice, “your partner’s being charged with a crime for failing to call it in…official misconduct? But he did in fact call for an ambulance. He did in fact notify that there was a male shot.”
Mr. Brown asked the cop whether he understood the parameters of his immunity agreement with the DA’s Office.
“It couldn’t be used against me,” Officer Landau said of the evidence he offered.
“But it could be used against your partner,” the lawyer retorted.
The cop denied that he was testifying against his partner. Former U.S. Sen. Al D’Amato took the same position during the trial three months ago of former State Sen. Majority Leader Dean Skelos, an old friend and political ally, and sounded no more convincing.
What’s the Difference?
Mr. Brown noted that Officer Liang was being charged with not calling in the incident and not attempting to perform CPR. “You did the exact same thing,” he told Officer Landau. “But you’re not being charged criminally. And you don’t have any idea why that is?”
The answer, aside from the immunity deal, was obvious: Officer Landau hadn’t fired the shot that left an innocent man bleeding to death in a project stairwell. When Mr. Brown told Justice Chun he was about to move into a new area of his cross-examination, the judge cited the lateness of the day and adjourned the proceedings. But even with a break in the trial the following day at the request of several jurors, this gave Officer Landau just a temporary reprieve.
When the case resumed last Thursday morning, Mr. Brown established that on the night of the killing, it was roughly 11:14 when Officer Liang sought to enter the stairwell and things began to go wrong. He then asked Officer Landau, “Are you aware that Officer Liang’s voice was captured on the 911 tape at approximately 11:17?”
“No,” the cop replied.
A Much-Shorter Lapse?
Since that three-minute period was partly consumed by the two cops making their way down the darkened stairwell, this raised serious questions about Officer Landau’s claim that he and Officer Liang had quarreled for four minutes before they even entered the stairwell to see what damage the misfire might have caused.
Reminding Officer Landau of his question—”What the f----- happened” and noting that the cop had testified that the shot had left his ears ringing, Mr. Brown asked whether it was possible Officer Liang had actually said “I fired”—a logical response—rather than “I’m fired,” which hinted that his primary concern was his job status rather than whether he had hurt someone.
The attorney pointed out that in his initial departmental interview, Officer Landau “couldn’t recall exactly what [Officer Liang] said. Now, a year and change later, you recall exactly what he said.”
Officer Landau responded that at the time of that G.O. 15 interview, “I was exhausted, I was pulled out of the hospital, I was still stressed out.”
“So you’re saying your memory got better over time,” Mr. Brown said with a touch of mockery. He then moved to an interview the cop had with Mr. Fliedner and co-counsel Joe Alexis on Dec. 10, 2014, in which he said the dispute about who would call in the incident took between 30 and 40 seconds. And two months later, he added, “You told a grand jury a different story, didn’t you?”
Officer Landau admitted that he hadn’t mentioned the “you call/no, you call” quarrel in his first NYPD interview, and acknowledged that by snatching his own cell-phone from his partner’s hand, he had prevented Officer Liang from calling their Sergeant while they were still in the hallway. He also acknowledged that he had told Mr. Fliedner and Mr. Alexis during their interview 20 days after the shooting that he heard Mr. Liang call in the incident from the stairwell.
Having implicitly raised questions in that exchange about why prosecutors had opted to charge Officer Liang with official misconduct, Mr. Brown moved to an area that suggested some culpability rested with the NYPD for reasons that went beyond pairing two such inexperienced cops in such a dangerous assignment. He got Officer Landau to state that he remembered “very little” about his first-aid and CPR training, even though at the time of the incident he was only 11 months removed from the Police Academy.
Asked whether he had read the books officers are given in the academy about those two subjects “cover to cover,” Officer Landau replied, “No.”
“You were trained in the Police Academy not to do something that would make matters worse?” Mr. Brown asked, implying that this was why he might have hesitated to take over the chest-compression work from Ms. Butler.
“Yes,” the cop replied.
Sneak Preview of Tests
And then the lawyer’s past life as an NYPD Captain really kicked in: he asked Officer Landau whether he had been told during his academy classes what questions would be on the CPR and first-aid exams that all candidates had to pass in order to graduate. “You were fed the questions and you were fed the answers, correct?” he asked Officer Landau.
In a bit less than 75 minutes over two days, he had managed to blow large holes in Officer Landau’s credibility while doing similar damage to the institution for which he worked. The potential impact this had on the case seemed to leave Mr. Fliedner flustered as well: the prosecutor’s tone was angry as he confronted the man who was supposed to be the most-powerful witness against Officer Liang because of their close professional relationship.
Over the course of the seven minutes in which he tried to recoup some of what had been lost, Mr. Fliedner several times had Justice Chun uphold defense objections based on questions he was asking being either leading or improper for a re-direct examination. More than once, Mr. Brown protested, “Objection, he’s cross-examining his own witness” and the judge concurred.
Mr. Fliedner reacted with incredulity when Officer Landau told him he didn’t know what to do in administering aid to the stricken Mr. Gurley, as if he hadn’t heard him say as much during the earlier cross-examination by Mr. Brown.
‘Not Going Into Darkness’
Given a second shot at cross-examination, Mr. Liang’s attorney was brief. Speaking to Officer Landau about where he was standing in relation to his partner just before the fateful, bungled attempt to open the stairwell door, he said to the cop, “You aren’t the one going into the darkness, are you? You’re the one standing in the light.”
“Correct,” Officer Landau replied.
The case was expected, as this newspaper went to press Feb. 8, to go to the jury the following day. Despite the points Mr. Brown had scored at the expense of the cop and the prosecutors, Officer Liang still had hanging over him that accidentally fired bullet, and the maddening bad luck for him and, especially, Mr. Gurley, that the ricochet off the cinderblock wall had such devastating consequences. It still seemed more likely than not that he would be convicted of criminally-negligent homicide.
But the point Mr. Brown seemed to have made with his methodical dissection of the inconsistencies in Officer Landau’s statements was that not only wasn’t Officer Liang a feckless villain, but in their reaction to the pressures created by his clumsiness, the partners weren’t all that different in their lack of readiness to protect and serve.
Full Article By RICHARD STEIER can be found here: http://thechiefleader.com/