By John Dorschner
How does a cop get convicted for killing a Black man? It certainly doesn’t happen very much, and so when it did in New York City, Independent Lens produced a public television documentary about it. It’s entitled Down a Dark Stairwell, and I believe it missed the main issue entirely.
It’s a crucial issue — one that’s also at the core of the two current police cases in Minnesota: Officer Derek Chauvin, accused of killing George Floyd, and Officer Kim Potter, charged with shooting Daunte Wright with what she thought was her Taser.
The facts about the New York case: On Nov. 20, 2014, Officer Peter Liang of the NYPD entered a darkened stairwell in a public housing complex in Brooklyn. Liang pulled the trigger on his drawn weapon and killed Akai Gurley, 28, an innocent bystander who happened to be in the stairwell with his girlfriend.
The documentary, which broadcast this month, focuses on a cultural war between two groups: The city’s Black community was outraged over a series of cases in which no charges were brought against cops who used deadly force. Meanwhile, the city’s Asian-American community protested that Liang was singled out as a “scapegoat” by the white establishment, which picked someone of Chinese descent to take the blame while protecting white cops who had some similar killings.
Indeed, Liang became the first New York police officer in 15 years to be convicted of killing someone. Was that prejudice against those of Asian heritage?
I’ve spent several years studying police killings, most of it focused on the 1980 trial of five white Miami officers accused of killing Black motorcyclist Arthur McDuffie. I published my findings in a book, Verdict on Trial.
I learned that cops often had a defense that works. Liang didn’t use it. He was 27, a rookie. He told investigators he pulled the trigger by accident.
But police officers are trained to use weapons correctly. The trigger of the police-issued 9 mm Glock required extra strength to pull to make sure it didn’t go off accidentally. Officers are also expected to use judgement about shooting into a darkened space that they can’t see.
Here’s the thing: Liang got into trouble because he told the truth. If he were a veteran cop, if he had been advised by a lawyer, if he had talked with his union before making a statement, he would have known that he should have said he feared for his life.
He thought he saw the glint of a gun in the darkness. He saw dimly that Gurley was pulling a dark object out of his pocket. Some cock-and-bull story like that, and it was highly unlikely that he would have been convicted. He might not even have been charged.
In America, it’s almost a Get of Jail Free card when a cop says, “I feared for my life.” Juries rarely convict in those cases when a on-duty cop makes a split-second decision trying to protect himself — or someone else.
In the 1980 McDuffie case, Alex Marrero took the stand and said he was fighting for his life and he felt the Black motorcyclist reaching for his gun. That’s why he hit McDuffie as hard as he could several times with his nightstick.
Never mind that the autopsy showed that McDuffie’s head must have been resting against the pavement and his hands showed no indication of a battle. Marrero feared for his life. The acquittal of those cops led to riots that resulted in 18 dead and $100 million in property damage.
Now, in Minneapolis, the problem for Officer Chauvin is the video shows Floyd prone on the ground. There’s no way that Chauvin can claim he feared for his life. That’s probably why he didn’t testify: He doesn’t a story to explain his actions.
In the Brooklyn Park shooting, Officer Potter immediately acknowledged she made a mistake. Wright was fleeing. There was no reason to fire. Again: No way to explain this away as fearing for her life.
The Chauvin and Potter cases are different, of course. Chauvin spent more than eight minutes with his knee pressed against Floyd’s neck, ignoring the plea of onlookers (including a paramedic) for him to stop.
Potter made a bad split-second decision, as did Liang. Liang was found guilty but sentenced to probation. That could be the best Potter could hope for — unlike Chauvin, whose actions seem so callous that they should require a lengthy jail sentence.
I can’t imagine a Chauvin acquittal. The best he could hope for would be a hung jury, with one or two hold-outs. My guess is conviction on manslaughter, hung jury on the other charges, but that’s just a guess: I’m not on the jury that has sat through every minute of prosecution and defense presentations.
If there’s a conviction, I bet there will be a lengthy appeal focusing on the judge refusing to move the case out of Minneapolis and not even sequestering the jury when demonstrators were on the streets protesting Wright’s death.
Still, there can be no argument that the judge made one smart move: Giving the jury a three-day weekend and scheduling opening arguments on Monday morning.
He could have had those arguments on Friday afternoon or Saturday morning. That’s what happened in the McDuffie case, with the stunning not guilty verdicts coming on Saturday afternoon, leading to a bloody weekend of rioting.
Ever since McDuffie, judges throughout the country have known not to deliver highly emotional verdicts on Saturdays. Police killing Black men certainly hasn’t abated since that 1980 case, but at least the judicial system has gotten wiser about the timing of possible riots.