Legal Aid Lawyers Stage Walkout After Yet Another ICE Court Arrest

Chaos erupted at Brooklyn Criminal Court Tuesday morning after agents with U.S. Immigration and Customs Enforcement snatched a defendant in the hallway, prompting a walkout by public defenders and accusations from court officers that Legal Aid attorneys had physically attacked them.

Genaro Rojas Hernandez, thirty, was in court to face charges of violating a restraining order. Just after 11 a.m., after a judge asked him and his court-appointed attorney to step into the hallway with a Spanish interpreter, Hernandez was arrested by ICE agents, according to his lawyer, Rebecca Kavanagh. After the arrest, attorneys with the Legal Aid Society stormed out of the courthouse on Schermerhorn Street and held a noisy picket line outside the building, calling on immigration officials to stay out of the courthouse.

The arrest makes Hernandez the fortieth individual taken into custody by immigration enforcement agents inside a New York City courthouse, according to official statistics maintained by the state Office of Court Administration, which operates the courts. That estimate is conservative: The Immigrant Defense Project, an immigrant rights and legal assistance group, keeps its own tally that includes arrests made just outside courthouses. This count puts the number at seventy, with Hernandez the first arrest since two weeks ago when the Voice covered allegations that court officers were unfairly aiding ICE agents.

Immigration arrests in courthouses have skyrocketed since the inauguration of President Donald Trump in January. ICE’s internal policies tightly regulate agent behavior in certain locations designated as “sensitive,” such as schools and hospitals, but the agency has so far refused to place courthouses into this category. OCA guidelines permit immigration enforcement agents to conduct operations in courthouses’ public areas so long as they identify themselves upon entry and stay out of courtrooms.

During Tuesday morning’s hearing, the judge alerted Kavanagh to the fact that ICE agents were waiting to arrest her client. She was given permission to speak with Hernandez with a Spanish interpreter in the hallway, she said.

Kavanagh had spotted a man she suspected was with ICE sitting in the hallway, but said he denied being an agent twice when asked. But as she walked out of the eighth-floor courtroom to explain the situation to Hernandez, the man followed them, she said. As Kavanagh and her client walked up the hallway to speak in private, another agent burst out of a set of double doors, and the two ICE officials grabbed Hernandez.

As the agents hustled Hernandez into a restricted area, a court officer sergeant and at least two other court officers assisted in the arrest, and held Kavanagh back as she attempted to take photos of the arrest and to urge Hernandez not to speak to the arresting officers, according to Kavanagh and several witnesses to the incident.

“ICE agents pounced on my client, and because I was still attempting to speak to my client, I got carried with them to the doors,” Kavanagh said. “My client was pushed through the doors, and the sergeant of the court part pushed me back.”

This is where the accounts of the attorneys present and court personnel diverge. According to Lucian Chalfen, a spokesman for the OCA, Legal Aid attorneys “tried to yank the defendant away.” He said the incident “was predicated on four Legal Aid attorneys purposely interfering in an arrest situation, and only for the professionalism and restraint of the court officers involved, there were no injuries and the attorneys were not arrested for obstructing governmental administration.”

Dennis Quirk, the president of the New York State Court Officers Association, expanded on that account: “The judge tells the Legal Aid lawyer, ‘ICE is outside the courtroom to take your client.’ Legal Aid walks the client to the door of the courtroom and tells the client to run.” Quirk alleged that Hernandez began to run and was intercepted by the ICE agents, and a struggle began. “Legal Aid starts to pushing the ICE agents, our people have to intervene and assist ICE, Legal Aid starts pushing our people,” said Quirk, who alleged attorneys “pushed court officers, they struck court officers, they hit court officers. They did the same thing to the ICE agents.”

Kavanagh scoffed at the accusation that she tried to interfere with the arrest. “I am an officer of the court,” she said. “The idea that I was attempting to interfere is crazy. We would never interfere with an arrest.”

Another Legal Aid attorney, Jane Sampeur, was standing a few yards away when the scuffle broke out, and said she saw no interference by Kavanagh.

“The whole thing was quite frightening,” Sampeur said. “You are your client’s last line of defense, and so the most you can do is stand there and say, ‘I have a right to speak with my client,’ and that’s what I saw her do. She just kept insisting on speaking with her client, but there were a number of very strong agents, and no matter how many times Ms. Kavanagh went to the gym, I assure you there’s nothing she would have been able to do to interfere with that arrest.”

“No one said, ‘Run,’ ” Sampeur added. “The idea isn’t to help someone evade the law, the idea is to be able to protect and ensure their rights. And quite frankly, our clients’ due-process rights are being violated.”

After finally catching up with Hernandez a few minutes later, Kavanagh was able to speak with him briefly in the presence of another Legal Aid lawyer and the two ICE agents, but all she could do was warn him not to speak to the agents any further, as she didn’t have a chance to have a confidential conversation. By that time, said Kavanagh, Hernandez had already made several statements to the arresting ICE officers, who had not identified themselves to him.

A spokesperson for ICE, Rachael Yong Yow, confirmed that agents had arrested Hernandez inside the courthouse but said she was not aware of a physical altercation taking place during the apprehension.

The arrest also drew the ire of acting Brooklyn District Attorney Eric Gonzalez, who has spoken out against courthouse detentions in the past.

“Today’s ICE arrest during a hearing on a serious domestic violence case denied due process for both victim and defendant,” Gonzalez wrote in a statement. “Such actions deter victims from reporting abuse and threaten public safety. I join our public defenders in calling on ICE to reconsider their misguided policy and stop conducting enforcement raids in courthouses.”

Hernandez, a married father with two children under the ages of ten, was in court Tuesday to face charges stemming from an incident on November 6, in which he was accused of going to a Mexican restaurant in Midwood and getting into a fight with an employee there in violation of an earlier restraining order preventing Hernandez from contacting that person, according to court documents.

Prosecutors said Hernandez punched a woman, whom prosecutors identified only as his “ex,” several times before following her into the restaurant and knocking a television to the ground, police said. He was arrested that day and bailed out two days later, records show.

A native of Mexico who has been in the country for about fifteen years and has worked as a laborer at the same job for the past seven years, Hernandez was back in court despite risking arrest by immigration officials. His arrest could have a chilling effect on other immigrants — defendants and victims alike — showing their faces in court, according to Scott Hechinger, a senior staff attorney with Brooklyn Defender Services.

“Coming to criminal court is already a scary experience, and for immigrant clients especially,” Hechinger said. “But now more than ever there’s a concrete difference in how our clients are feeling when they come to court, whether undocumented or documented. There’s that fear in their eyes that really makes the court experience and representation even tougher.”

In the wake of the arrest and the ensuing walkout, the scene inside the courthouse was chaotic, as clients stood around in confusion and defense attorneys with other organizations scrambled to figure out what was going on. Ultimately, the courts adjourned for lunch about an hour earlier than normal.

The competing versions of what went down in the courthouse hallway is the latest and most acute example of increasingly hostile relations between defense attorneys and court personnel. Quirk, the court officer union president, has called Legal Aid’s activities irresponsible, and warned legal trouble for any attorney accused of interference in future ICE arrests.

“I gave direct orders to my people, the next time Legal Aid puts their hands on them, arrest them,” he said. “They’re getting a warning today. They’ll get no more. They do it again, we will lock them up.”


Court Officers Are Aiding in Immigration Arrests, Say Lawyers

Ishmael Garcia-Velasquez wore a suit and tie to Brooklyn Criminal Court on Tuesday morning. The 35-year-old father has made routine appearances over the past seven months on petit larceny and misdemeanor assault charges, according to his lawyer. But this time, after yet another adjournment, plainclothes agents from Immigration and Customs Enforcement handcuffed Garcia-Velasquez outside of the courtroom. Several court officers helped usher him into a private elevator reserved for inmates and out of the courthouse, one witness said.

There was no apparent reason for Garcia-Velasquez, a noncitizen originally from Mexico, to have been targeted, his Legal Aid Society attorney, Rebecca Kavanagh, tells the Voice. “He had no record and no previous removal order,” she explains. “He just has nothing like that and it’s just really upsetting.”

Prosecutors charge that Garcia-Velasquez punched his ex-wife’s boyfriend and took the man’s wallet, though Garcia-Velasquez maintains his innocence. He has twice rejected a plea that would land him five days of community service. “It’s a matter of principle,” Kavanagh says. “He was determined not to plead to anything.”

As of Tuesday, Garcia-Velasquez was the 38th person to be escorted from a New York City courthouse in ICE custody since February, according to the state Office of Court Administration. The Immigrant Defense Project, a legal services and advocacy organization that has been monitoring the phenomenon, says that including arrests made outside of city court buildings, Garcia-Velasquez’s was the 67th city courthouse arrest so far this year.

By mid-morning Wednesday, that count had been brought up to 69, as ICE arrested two more noncitizens at Brooklyn Criminal Court, OCA confirmed: Jasmine Rowe and Jaime Buestan were both taken into custody in the hallway outside of a courtroom after their misdemeanor assault cases were adjourned until January. Rowe, like Garcia-Velasquez, is a parent with no criminal record, according to her lawyer. She also maintains her innocence, and has refused to plea.

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Since President Donald Trump widened the immigration enforcement dragnet early this year, Mayor Bill de Blasio and Governor Andrew Cuomo have taken pains to assure noncitizens that city and state employees, including police officers, will not assist ICE in deporting local residents. But courthouses, which ICE can enter freely, fall outside of city and state jurisdiction. They are the purview of OCA.

“We do not facilitate or impede ICE when they effect an arrest,” OCA spokesperson Lucian Chalfen tells the Voice. ICE agents must announce themselves when they enter a courthouse and can’t make arrests inside courtrooms. Beyond that, says Chalfen, “We ensure that their activity does not cause disruption or compromise public safety in the courthouse.”

“In maintaining order they are assisting the [deportation] process,” Kavanagh counters. “It’s one thing that ICE is able to make these arrests in court. It’s quite another that they are being accommodated the way they are” by court officers.

In Garcia-Velasquez’s case, says Legal Aid senior attorney Melissa Kanas, the arrest could not have been facilitated so smoothly without court officers’ help. Kanas, who was present in the court at the time, managed to take one picture of the arrest for her colleague Kavanagh to tweet out as a warning to other noncitizens, then attempted to follow Garcia-Velasquez through a set of double doors to the inmate elevator. Though the doors also lead to the clerk’s office, which is open to the public, she says a court officer stopped her.

Court Officers Association president Dennis Quirk insists that his officers did not stray from protocol during Garcia-Velasquez’s arrest on Tuesday. “First of all, we didn’t step in,” he says. “We were in the hallway because we knew what was going to go down, and we’re in the hallway to prevent any further altercation.”

Kanas was denied access to the elevator, says Quick, because the inmate elevator is private.

“Legal Aid knows damn well that if ICE is there and knows who they’re taking, they’re going to take them,” he adds. “So what is the purpose of creating this commotion in the hallway? All they do is alarm everybody else that’s there. They create a public nuisance.”

Federal immigration enforcement in courthouses has spiked under Trump. The IDP counted 110 arrests and attempted arrests at courthouses statewide this year, a nearly 900 percent increase over the 11 courthouse arrests and attempted arrests counted in all of 2016.

As word spreads of ICE arrests in courthouses, more and more immigrants are choosing to just stay home, dropping cases against predatory employees and abusive spouses for fear of being deported.

Carmen Maria Rey, the deputy director of the Immigration Intervention Project at Sanctuary for Families, describes the plight of one client, a 37-year-old Central American woman who didn’t seek to regain custody of her daughter from an abusive partner out of fear that she’d be arrested at court. He “has told her all the time that if she goes into proceedings, he’ll call immigration on her. He’ll know exactly where she’ll be,” says Rey. “Does she try to negotiate with the father to see her daughter again, or does she get deported and never see her daughter again?”

In New York City, where about 400,000 residents are undocumented, the share of the population affected is not trivial. And with the federal government’s decision to wind down portions of the Temporary Protected Status program, and no legislative replacement yet for the recently canceled Deferred Action for Childhood Arrivals (DACA) program, the ranks of the fearful could very well swell in the coming months.

Lee Wang, a staff attorney with IDP, says that in court buildings, ICE agents benefit from what she describes as a dangerous “fraternity among law enforcement.”

Since February, her group has kept a running list of instances where court officers allegedly assist ICE in making an arrest. So far, OCA agents had allegedly assisted at least twelve times, based on witness and attorney interviews. (OCA declined to comment on specific incidents.)

In one sworn affidavit to IDP, attorney Katherine Bajuk of New York County Defender Services described an arrest that took place on April 5, when one of her clients was in court on a second-degree robbery charge. The client, a sexual assault survivor, was exiting the courtroom with two lawyers when, she says, ICE agents and one court officer intervened. The two lawyers “were stopped at the door by ICE and one court officer assisting them,” Bajuk wrote, “and excluded from the area between the two sets of doors where the arrest took place and not allowed to witness her arrest even though we requested access.”

Quirk, the union head, says OCA officers will help ICE under certain circumstances. “If a fight breaks out and they are having a difficulty, we would assist any law enforcement person,” he says. “But other than that we are not involved. If we are attempting to arrest, and ICE is there, they’d help us. That’s what law enforcement does.”

“I understand that as an impulse,” says Wang. “But then there’s also the question of who are [court officers] there to serve and protect? They are there to ensure the orderly operation and safety in courts. The idea that rogue ICE agents are picking people up is undermining the safety of the courts. That seems like a conflict.”

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Asked to comment on the risks noncitizens face in court, mayoral spokesperson Seth Stein said, “Over-broad federal immigration enforcement in courts is a threat to public safety that discourages victims, witnesses, and defendants from coming forward.” He also stressed that courts are under OCA’s jurisdiction.

Any change in court officer directives would come from the state’s chief judge, Janet DiFiore. “We maintain a continuing dialogue, and have met with federal officials on a local and national level to convey our concerns and request that they treat courthouses as sensitive locations,” says OCA’s Chalfen. (ICE already considers schools and places of worship “sensitive,” and discourages agents from making arrests inside of them.) Chalfen adds that OCA leadership has “held several lengthy meetings with the defense bar and advocates, and are always available to further discuss the issue.”

If legal advocates want to prevent ICE arrests in courts, Quirk says, they should file suit to prevent it. Legal Aid “may be 100 percent right in that politically, and legally, ICE shouldn’t be doing what they’re doing,” he surmises. “But we have a president of the United States who has directed them to do their duty.”

One policy change floated by advocates would be to require agents entering courthouses to have a judicial warrant in hand, instead of camping in corridors waiting for possible targets. Judicial warrants have to be reviewed and signed by a judge, while immigration warrants can easily be issued at will by ICE’s own staff.

Once an immigrant is in ICE custody, regardless of his innocence in criminal court, attorneys have little recourse. Until Tuesday, Garcia-Velasquez had worked at a diner and picked up his six-year-old daughter from school each day. As of Wednesday night, more than 24 hours after his arrest, Kavanagh had not been able to make contact with him. In ICE’s hands, she concedes, “sometimes people literally disappear.”

Kavanagh compares Garcia-Velasquez’s arrest and the two that followed to September 14, when ICE agents arrested four men outside of Brooklyn Criminal Court in one go. That day, she says, a large group of reporters descended. She sees these individual courthouse arrests, in murky consort with court officers, as “much more surreptitious.”

“It just becomes the norm,” she adds. “And that’s a real problem.”


Albany Finally Passes Raise The Age Legislation, But “The Fight Is Far From Over”

This past weekend, the New York State legislature enacted partial “Raise the Age” reform that will raise the age of adult criminal responsibility for nonviolent offenses to 18 and substantially change the way all 16- and 17-year-olds are treated by the state’s criminal justice system.

The reforms also specifically require New York City to move all 16- and 17-year-olds off of Rikers Island by October 1, 2018. That, however, is not likely to happen on time, setting up a potential clash between Governor Andrew Cuomo and Mayor Bill de Blasio.

Still, the reform is a significant victory for social justice advocates.

Akeem Browder, the brother of Kalief Browder, who committed suicide in 2015 after being wrongfully held on Rikers Island for more than three years on a false charge that was ultimately dismissed, told the Voice: “It’s a win. But there’s a compromise that comes with that. The fight is far from over.”

Akeem Browder, whose brother Khalief Browder killed himself after three years on Rikers awaiting trial, at an event announcing the legislation this morning.
Akeem Browder, whose brother Khalief Browder killed himself after three years on Rikers awaiting trial, at an event announcing the legislation this morning.

Alicia Barraza, a prominent Raise the Age proponent whose son killed himself after a hellish four-year odyssey through New York’s criminal justice system that began when he was 17, told the Voice: “I’m glad to see New York State has finally passed some semblance of this legislation.”

Governor Cuomo, who pinned Raise the Age reform to his state budget proposal, told reporters: “This is a legacy accomplishment. They have talked about raising the age for 12 or 13 years. It has never gotten done. This budget does it.”

Governor Cuomo is expected to sign the legislation into law this week.

Under the reform, all 16- or 17-year-olds who commit misdemeanors, and the vast majority of juvenile offenders who commit nonviolent felonies, will be diverted to Family Court, where the focus is on rehabilitation rather than punishment, and where records are sealed.

For juvenile offenders whose crimes involve a lethal weapon, a sex crime, or significant physical injury, their cases will be handled by a newly created Youth Court.

This new court will be part of New York State’s criminal court system, “presided over by a Family Court judge, where offenders would have access to additional intervention services and programming,” according to a statement issued by State Assembly Speaker Carl Heastie, who negotiated the agreement on behalf of the Democrat-controlled assembly.

According to the statement, all violent juvenile offenders “will be treated as adults for sentencing purposes, though the court will be directed to consider the defendant’s age when imposing a sentence of incarceration.”

The debate over Raise the Age reform was the main cause of the biggest rift in years between New York State Senate Democrats and Republicans and delayed passage of the state budget, which by law had been due April 1.

The agreement confers a patina of credibility upon the Independent Democratic Conference, a group of breakaway democrats led by Senator Jeffrey Klein that collaborates with Senate Republicans, and that Governor Cuomo credited with helping get the reform passed.

The Ella McQueen Reception Center for Boys and Girls in Brooklyn
The Ella McQueen Reception Center for Boys and Girls in Brooklyn

In February, when challenged by the Daily News to justify the IDC’s existence, which critics say empowers Republicans, Klein declared there was pragmatic value in it: “This is a pivotal time in New York and as pragmatic progressives, the Independent Democratic Conference is creating a majority coalition with Republicans because you must engage in order to make things happen.”

Now, for the second year in a row, the IDC has helped milk a progressive result from an otherwise Republican-controlled Senate — last year it was paid family leave and an incremental increase in the mandatory minimum wage to $15, though critics say those reforms are watered-down versions of what Democrats would have passed.

The changes required by the reform impose substantial financial, logistical, and legal responsibilities upon the counties, because the reforms necessitate the creation of an entirely new criminal justice system infrastructure, as well as the expansion of existing infrastructure.

Courtrooms will have to be constructed or appropriated for the new Youth Court. Youth Court judgeships will have to be created, and judges will have to be trained in Family Court procedure.

At the same time, because the reforms will divert the majority of 16- and 17- year-old offenders into Family Court, the Family Court caseload is expected to increase substantially, necessitating not only new Family Court judgeships but more juvenile public defenders, more juvenile prosecutors, and more probation officers.

Without additional funding and staffing, it is doubtful New York’s Family Court system can effectively absorb the increased caseload. According to a report from ProPublica, the system — at least in New York City — “seems perennially in a state of crisis. It’s been the subject of some reform effort or other for decades. And though there has been some progress recently . . . those who work in it every day say the workload in family court still overwhelms its resources.”

Previously, Governor Cuomo had budgeted $135 million to Raise the Age reform, but it is not known at press time what that final figure will be.

Aside from changes in the way juvenile offenders are processed by the courts, the new law prohibits housing juvenile offenders in facilities with adult criminals.

Therefore, new youth detention space will have to be constructed or leased to accommodate 16- and 17-year-olds too dangerous to be released. The burden of building these facilities, expanding existing facilities or leasing space in other facilities, and transporting detainees to and from a facility to court, also falls to the counties.

For example, Cheryl DiNolfo, the Monroe County executive, told a local television news station that the reforms would cost her county $21 million, which includes doubling the size of the county’s juvenile detention center. Chautauqua County executive Vince Horrigan, meanwhile, told Jamestown’s Post-Journal that 16- and 17-year-olds who require detention could no longer be housed in the county jail and would have to be transferred to a juvenile facility, “and Horrigan said they don’t know where that would be.”

However difficult the task of figuring out where to detain 16- and 17-year-olds may be for upstate counties, it pales in comparison to the challenge now facing New York City, which must, according to the new law, move these juveniles off of Rikers Island by October 1, 2018.

The city is not likely to meet that deadline.

The Voice asked Mayor de Blasio’s press office where the city planned to hold 16- and 17-year-old juvenile offenders when the law takes effect. Spokesperson Natalie Grybauskas responded, “Recognizing that kids have different needs than adults, we already house adolescents separately, and remain committed to moving them off Rikers Island.”

The de Blasio administration has an existing $300 million plan to expand its juvenile detention centers in the Bronx and Brooklyn to accommodate 16- and 17-year-olds, but that plan is expected to take “several years” to execute, according to New York City commissioner Joseph Ponte, who said so at a hearing of the City Council Committee on Fire and Criminal Justice Services last November.

“Because of the building policies of the city of New York, it will take several years,” Ponte conceded, to complete construction of the new, expanded juvenile detention facilities. “I’m not sure if we have an estimate on time.”

But yesterday in an interview, Governor Cuomo set a firm date: “Make it happen, and make it happen by the end of next year.”


The Scalequel: Trump’s Supreme Court Pick Will Make Originalism Great Again

Federal appeals-court Judge Neal Gorsuch, President Donald Trump’s nominee for the Supreme Court, is not as zealous as some of the other judges Trump considered for the seat, but has a solidly right-wing record on issues such as birth control and government regulations. (In short: he is not as fanatical as William Pryor.)

Gorsuch is probably best known for his 2013 opinion in the Sibelius v. Hobby Lobby case. In a decision upheld by the Supreme Court in 2014, he argued that it would violate chain-store owners’ religious freedom if they had to give their employees health insurance that paid for birth control.

The Affordable Care Act’s mandate that employers provide such insurance, Gorsuch wrote, compelled Hobby Lobby’s owners “to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg,” while their “religion teaches them that the use of such drugs or devices is gravely wrong.”

The chief judge in the case responded that there are “factual disputes regarding the actual potential of the challenged drugs to destroy a fertilized human egg.”

While Gorsuch has not ruled directly on any cases involving abortion, the Hobby Lobby case was not the only one where he opposed funding birth control. Last October, he unsuccessfully insisted that the 10th Circuit should reconsider its ruling that Utah had to continue funding Planned Parenthood pending the outcome of its lawsuit against Governor Gary Herbert for cutting it off.

Gorsuch, 49, has been a judge on the 10th Circuit Court of Appeals in Denver since 2006. He says his idol is the late right-wing Justice Antonin Scalia.

That does not bode well for his stance on labor-law issues. Scalia’s death last March prevented a decision that would have prohibited public-employee unions from collecting “fair-share fees” from nonmembers they are legally required to represent. Similar cases are already proceeding through the lower federal courts.

The Service Employees International Union, the Communications Workers of America, and National Nurses United all urged Senate Democrats to filibuster the nomination. The nurses’ union said Gorsuch had gone against workers in 11 of the 15 employment-law decisions he was involved in.

“Judge Gorsuch has a record of aligning with corporate interests,” the CWA said in a statement. “In cases involving worker protection agencies like the National Labor Relations Board or the Occupational Safety and Health Review Commission, whose enforcement mechanisms are already too weak to be effective, Judge Gorsuch criticized the ‘remarkable powers’ of such agencies.”

Last August, when the 10th Circuit upheld a Department of Labor ruling that a truck driver had been unjustly fired in 2009 for abandoning his trailer after its brakes froze, Gorsuch dissented. The trucker had unhooked the stuck trailer and driven off after waiting for more than three hours by the side of a highway in subzero temperatures in a cab with a broken heater. But federal law, Gorsuch wrote, “only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns”—and “the trucker in this case wasn’t fired for refusing to operate his vehicle.”

No law he knew of gives employees the right to operate their vehicles in ways their employers forbid, he said. “Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law,” he added sarcastically, echoing Scalia, who is known for his biting legal opinions. “But it isn’t there yet. And it isn’t our job to write one.”

Gorsuch, however, may have a stronger concern for privacy and defendants’ rights than would be expected from a judge picked by an authoritarian. He has ruled searches illegal in three cases, one involving guns and methamphetamine and the other two possession of child pornography.

On the other hand, he twice ruled against people alleging excessive force by police. In 2013, he dismissed wrongful-death and excessive-force lawsuits against a Colorado police officer who’d shot a 22-year-old man in the back of the head with a Taser as he was trying to run away from a marijuana field, killing him. Gorsuch wrote that Supreme Court precedent precluded claims for damages against individual officers except for “the plainly incompetent or those who knowingly violate the law.”

The other two judges concurred, but said there was reasonable evidence that the officer had used excessive force and violated the victim’s constitutional rights. One noted that the Taser training manual specifically warned, “DO NOT AIM AT HEAD/THROAT UNLESS SITUATION DICTATES A HIGHER LEVEL OF INJURY RISK IS JUSTIFIED.”

Like Scalia, Gorsuch claims to be an “originalist,” someone who will interpret the Constitution based on the way it was written and not distort it to justify their use of litigation for social engineering. This is a right-wing marketing slogan dating back to the late 1960s, when President Richard Nixon was trying to turn the Supreme Court away from decisions such as Miranda v. Arizona in 1966, which held that the Fifth Amendment’s guarantee against forced self-incrimination required police to tell arrested suspects, “you have the right to remain silent.” Nixon called judges who made decisions he liked “strict constructionists,” hewing to the Constitution, while those who didn’t were “judicial activists.”

In the 2003 Lawrence v. Texas decision, Scalia’s homophobia trumped what the majority saw as clear constitutional principles. By a 6-3 margin, the Court ruled that sodomy laws violated the Fourth Amendment’s protections against unreasonable search and seizure, because the only way to enforce them was to send police into people’s bedrooms. Scalia’s dissent argued that there was no “fundamental right” to engage in “homosexual sodomy”—and during oral arguments, he said that it would be constitutional for states to outlaw masturbation.

The Dred Scott decision of 1857 could be considered “originalism” carried to its logical extreme. Chief Justice Roger B. Taney, ruling that slaves were property with no human rights, wrote that the framers of the Constitution would never have countenanced freeing Scott — because they believed black people were “so far inferior, that they had no rights which the white man was bound to respect.”


NYC’s Toughest Judge Cites ‘Reefer Madness,’ Rosaries While Sentencing 20-Year-Old for Murder

The toughest judge in Manhattan Criminal Court lived up to his reputation on Friday afternoon.

Just days after the Daily News ran a story about Judge Edward Jude McLaughlin’s “soft side,” McLaughlin sentenced twenty-year-old Taylonn Murphy Jr. to fifty years to life in prison for the 2011 murder of Walter “Recc” Sumter.

McLaughlin had been excoriated by Police Commissioner Bill Bratton and Mayor Bill de Blasio after showing leniency to a felon in a rehab program who wound up killing NYPD Officer Randolph Holder. The Daily News report focused on a case in which he allowed a gun trafficker to remain out of jail until after his birthday.

Speaking to Murphy from the bench on Friday, McLaughlin gave a long, rambling tirade; McLaughlin invoked the phrase reefer madness before expounding on marijuana use and addiction, and criticized what Murphy wore during his trial.

“Why’d you wear your two rosaries visibly?” the judge asked, before suggesting that the members of the jury may have seen them as “sacrilegious violations of their observances.”

“You don’t seem to think too well,” McLaughlin added.

The judge continued, “In one day, there were thirteen people here for your trial. I don’t understand the thought process. I hope they visit you in prison but I don’t think that’s going to happen.”

That’s the real McLaughlin.

A Voice investigation published in the fall reviewed hundreds of cases that came before him and showed how McLaughlin earned his nickname, “the hanging judge.”

“It’s his last hurrah,” Murphy’s father, Taylonn Sr., said of McLaughlin, who by law must retire at age seventy this year. “The judge knows my son didn’t get a fair trial, but he’s still imposing a harsh sentence — even though, deep down, he knows.”

Taylonn Murphy Sr. speaks to his son's supporters and the press outside Manhattan Criminal Court on Friday.
Taylonn Murphy Sr. speaks to his son’s supporters and the press outside Manhattan Criminal Court on Friday.

Prosecutors presented no physical evidence, such as DNA traces or the murder weapon, at Murphy’s trial, but social media played a key role in their case.

Murphy’s sister, high school basketball star Tayshana Murphy, was shot to death in the Grant Houses in 2011.

Sumter had mocked Tayshana’s death in an online video. Taylonn, then sixteen, posted “Dead on sight beef” in reply. Two weeks later, Sumter was slain.

Murphy was one of the 103 young men arrested in the 2014 raid of Harlem’s Manhattanville and Grant housing projects. Young residents of the two complexes had been feuding for years, and the raid was billed as the “largest gang bust in New York City.” While most of those arrested in the raid took plea deals, Murphy maintained his innocence and took his chances with a jury.

Two months ago Murphy was convicted of conspiracy, assault, and second-degree murder.

At Murphy’s sentencing, Walter Sumter, Walter Sumter Jr.’s father, read his victim impact statement in a voice choked with tears: “We are compelled to forgive you. We pray for you and your family. Our family is not the only one suffering from the violence.”

Taylonn Murphy Jr. then spoke, offering his condolences to Sumter’s family, but maintaining his innocence.

“I may not know what it is like to lose a son, but I know what it is like to lose a sibling. I am innocent. To my family and friends — I appreciate the love and support. The fight is not over. I’m innocent.”

While Murphy’s case is one of the last related to the 2014 raid to be resolved, no one interviewed connected with the Manhattanville and Grant houses believes this is an end to anything.

“What’s been resolved?” says Murphy Sr. “Nothing. We still have lack of opportunities, a lack of direction, and a continuation of the school-to-prison pipeline.”

Outside the courthouse, Murphy Sr. told his son’s supporters, “Don’t lose hope.”

“One thing that I want you guys to take from what the judge said, he said a lot of you guys won’t be there for him in a matter of a couple of years. It’s up to us to prove him wrong.”


Taylonn Murphy Trial Reveals Overreaching Prosecution Tactics

Last week, another black youth was found guilty of murder. Another kid from the housing projects.

This time it was Taylonn Murphy Jr. He was one of the last remaining open cases from the largest gang bust in New York City history. Whether or not Murphy actually committed murder — there was no physical evidence, no DNA, no surveillance video of the shooting, no weapon — the trial was a clear demonstration of the way prosecutors push the limits in order to get a conviction.

In the case of Murphy, the facts are these: He was arrested in the 2014 raid of Harlem’s Manhattanville and Grant housing projects and was subsequently charged with the 2011 murder of Walter “Recc” Sumter.

The backstory was this: Murphy’s sister Tayshana was shot dead in the hallway of their building in the Grant Houses in 2011. Taylonn was sixteen at the time. Sumter later posted a video mocking Tayshana’s death two weeks before his murder. Murphy took to Facebook to post a menacing reply: “Dead on sight beef.”

The bigger story is this: Murphy took a chance with a jury and lost. And he probably will serve many more years in prison for having tried to fight his case instead of taking a plea.

That’s not to say he isn’t guilty; we don’t know, and the jury, for now at least, has spoken. But of the 103 young men and youth arrested and indicted in June 2014 for activity tied to three gangs — Money Avenue, Make It Happen Boys, and 3Staccs — an astonishing 95 have pled guilty, many taking five- to fifteen-year plea deals. Almost none of them, only a handful, chose to go to trial like Murphy.

Those are amazing statistics. Some 93 percent of those rounded up that day took a plea rather than face trial, despite how thin the evidence against many of them appeared to be.

But as I wrote about at length a few weeks ago, the system is engineered to extract plea bargains from defendants. How do prosecutors do it?

For starters, set bail unrealistically high. Then, as the arrestee’s family hunts for the money to get him out, he sweats it out in Rikers or the Tombs or some other hellhole. The leverage begins.

Next, the DA overcharges him, which immediately establishes a much higher potential sentence and terrifies the accused with the possibility of spending decades in prison. And even as overcharging increases leverage on the accused to take a plea, it makes the likely outcome of that plea worse, given that the negotiation is starting from a more extreme position.

Then, throw in a conspiracy charge, which lowers the bar for the prosecution: All DAs have to show under these tough-to-beat statues is that there was an agreement to engage in criminal activity and “overt acts” in furtherance of that agreement. The accused doesn’t even need to be at the scene to be convicted, let alone get caught in the act.

Now, whether the suspect has managed to post bail or is still languishing in jail, and assuming like the vast majority of defendants in the gang case he cannot afford a private attorney, he meets his court-appointed lawyer — a so-called “18 B” lawyer who’s too overworked to take every case to the mat. About 1,000 such lawyers exist in the city, and odds of going to trial with an 18-B lawyer are slim: of the 236,479 cases handled by the 18-B panel in 2015, only 360 (less than one percent) went to trial.

Finally, let the accused know that his case will heard by Judge Edward Jude McLaughlin, sometimes referred to as “the hanging judge” of Manhattan criminal court. Last November, another young man in the case who was sentenced by McLaughlin got sixty and a half years. This is how he rolls, and everyone knows it.

In the face of all of the above, 93 percent of the 103 defendants in this case caved.

But for those few who chose to go to trial, that was only the beginning. Once the trial kicks off, if you’re a DA lacking hard evidence such as DNA or a weapon, you will do whatever it takes to sully and demonize the defendant. (In Taylonn’s case, this even included transforming his murdered sister from the innocent victim she’d been three years earlier into a gangbanger herself, presumably to align her with her brother’s 3Staccs crew.)

“The prosecutor will never personalize the defendant,” says Ikiesha Al-Shabazz Whittaker, a former Manhattan prosecutor. “They’ll dirty up his character any way they can. There are a lot of psychological games to get jurors to think and feel a certain way. They use those mind games whether there’s evidence or not.”

Those games include things like repeatedly exhorting the jury to use “common sense” to see that Murphy was guilty, implying that jurors would be stupid to come to any other conclusion. At trial, the DA even quietly swapped out the street name listed in Murphy’s indictment, “Bam Bam,” for one they later found in a Facebook post, “Mack Truck Bam,” an apparent attempt to make him sound more threatening. Whittaker says those tricks are commonplace.

Then there are those conspiracy statutes. Not only useful for pushing a defendant to a plea, they also make it easier to secure a conviction at trial. “Once a conspiracy is proven, the prosecutor enjoys several important procedural advantages. The most important being significant relaxation of the bar against hearsay evidence,” says Ian Weinstein, law professor at Fordham University. “The least involved person in the conspiracy is as guilty of conspiracy as the most involved person.”

As for the lack of physical evidence, Manhattan District Attorney Andrew Warshawer repeatedly encouraged the jury “to see through coded language” in Facebook posts to arrive at a guilty verdict.

And just in case anyone on the jury started to feel sorry for this poor black 20-year-old who’d grown up in the projects and was now facing life in prison, Warshawer, in his closing arguments, reminded them that “to say that it is an inevitable byproduct of growing up in public housing is untrue.”

And he’s right; it’s not inevitable. But there may be some relationship. As Robert Garot, a professor of sociology and youth gang expert at John Jay College of Criminal Justice, points out, there are external forces at play in poorer neighborhoods, and the absence of social programs and the existence of criminal activity is a phenomenological reality young people face on a daily basis in high-poverty areas.

“Every young person is trying to find a way — where they fit in and what they should do with themselves,” Garot says. “And it’s a time when their brains haven’t fully developed, so of course, the decisions aren’t going to be what me — as a 49-year-old — would call rational.”

Taylonn Murphy Jr. was found guilty of all of the top counts in the indictment, including conspiracy, assault, and second-degree murder in the killing of Sumter. The verdict seemed to be based almost entirely on the testimony of three fellow gang members who, when faced with the kinds of leverage enumerated above, agreed to testify against Murphy in exchange for reduced sentences. Two of those witnesses were members of a rival gang, and only those two said they saw the murder take place.


Facebook Posts Loom Large in Trial for Slain Basketball Star’s Brother

Taylonn Murphy sat in Room 1530 of the Manhattan Criminal Court on Monday, watching opening arguments in the case against his son, Taylonn Murphy Jr., who stands accused of murder and conspiracy charges as part of the largest gang bust in New York City history.
Taylonn Jr. is one of many suspects from the Manhattanville and Grant houses — public projects in West Harlem that have a longstanding history of violent rivalry — swept up in a massive dragnet following a four-year criminal investigation by the Manhattan district attorney. In total, 103 people were indicted for activity associated with three gangs — Money Avenue, Make It Happen Boys, and 3Staccs. The D.A. brought two murder charges, nineteen non-fatal shootings, and possession of firearms in a 145-count indictment.
Of those 103, the Manhattan D.A.’s office says 94 have pleaded guilty rather than stand trial. Some of the rest were convicted, one defendant was acquitted at trial, and another case was dismissed. Only four cases are pending — one apiece for Money Avenue and Make It Happen Boys, and two for 3Staccs.

Taylonn Jr.’s case is one of those four. He’s charged with being part of a 3Staccs crew involved in the killing of Walter Sumter, who lived in the Manhattanville Houses, in December 2011. For the elder Murphy, the case is extraordinarily difficult: His daughter, Tayshana, was fatally gunned down in the hallway of the Grant Houses in September 2011. She was eighteen, a rising basketball star named one of the top point guards in the country by ESPN’s HoopGurlz. Two young men from the neighboring Manhattanville Houses were later sentenced to 25 years to life in prison for her murder. Now Tayshana’s brother could end up in prison.
Social media will be a big part of the prosecution’s case against Taylonn Murphy Jr. Manhattan District Attorney Cyrus Vance and the NYPD have increasingly built cases against gangs by focusing on Facebook. The indictment against the 103 alleged gang members was peppered with comments on the site from the suspects, including posts written by Taylonn Jr. Prosecutors looked at over a million social-media pages in the case. A Facebook representative will be flown in for the trial.
Taylonn Murphy Jr. was initially charged with assault and criminal possession of a weapon. The murder charges didn’t come until seven months after the takedown. The assistant district attorneys told jurors on Monday that witnesses — who they are calling “cooperators” — will testify in the coming weeks and place the younger Murphy at the murder scene. The cooperators stand to “receive a benefit of a reduced sentence,” says one of the A.D.A.s.
“Detectives sifted through thousands of hours of phone calls, hours of surveillance video, and pages of Facebook posts,” Assistant District Attorney Jon Viega said in his opening arguments. He faced the jury of twelve men and women, with five alternates, and outlined how the only thing the gang members like more than committing violent acts against rivals “is bragging about it on Facebook.”
Defense attorney Lewis Gladston followed the prosecution with his statement. He told jurors that the three cooperators have been known to lie.
“Credibility is an issue,” Gladston said — for the cooperators, “it’s a ‘get out of jail free card.’ The informants were facing a life sentence before cooperating. My client’s DNA wasn’t found on any evidence. There is not one single video of my client hurting anybody. They recovered zero evidence in my client’s home.”
The elder Murphy listened to this, at times looking concerned, at times exasperated as prosecutors spoke. He was seated in the audience directly behind his son on the other side of the railing, next to Tephanie Holston, Taylonn Jr.’s mother. Murphy must have had some understanding of how his son might be feeling. His own experience with the court system was the subject of a New Yorker profile last October: In 1991 he had been tried for murder, proceedings that ended in a hung jury. There was a second trial; still he was not convicted. All the while he was held at Rikers. The D.A. threatened a third trial. Rather than risk it, Murphy took a plea deal for time served and was released in 1992.
He disputes how the district attorney has portrayed his son. He says Taylonn Jr. was as young as sixteen at the time of some of the things alleged in the indictment. New York is one of only two states — the other being North Carolina — where the age of criminal responsibility is sixteen. His son was nineteen when he was arrested in 2014.
“My children didn’t move to Grant until 2007,” Murphy said following the day’s proceedings. “They were twelve and fourteen, and my daughter was traveling all over the country playing basketball. This problem in the neighborhood has been going on for decades. It was already there.” 
He said his children grew up in “this very turbulent environment” and didn’t know how to deal with it.
“Young people’s stress levels are so high. They find a common bond and now they’re hanging out — so they’re a gang now?” he asks. “What constitutes a gang? And being tried as an adult when your behavior is that of an adolescent? You’re trying to blame these young people for living in an atmosphere that wasn’t nurturing. This is a neighborhood that has been under anguish.”
The use of Facebook in building a case is problematic to Murphy, as well as to some experts contacted by the Voice.
“A lot of it has to do with adolescent bravado and identity formation — it’s a very complex thing. It’s not black and white. It’s part of their survival,” says David Brotherton, professor of sociology at John Jay College of Criminal Justice, who studies gangs. He says the notion of conspiracy charges based on Facebook posts is “absurd.”
Social media being used by prosecutors to build criminal conspiracy cases raises difficult questions, agrees Ronald Goldstock, an attorney who served for thirteen years as director of the New York State Organized Crime Task Force and is on the faculty at the Cornell, Columbia, and New York University law schools. 
“With social media, it makes the degrees of culpability more complicated,” Goldstock says. “When you get eighteen or twenty people, it’s hard to determine the individual culpability of each person. They’re all writing texts, emails, posting on Facebook. For a jury to determine who actually did what and how that fits in becomes really difficult. Most people plea out because if you get convicted, it could be 25 years.”
The trial, in the court of Judge Edward Jude McLaughlin, is scheduled to continue throughout the week and upcoming month.


What Does Peter Liang’s Conviction Mean for the NYPD and Police Accountability?

On Thursday night, after the rest of the Brooklyn Supreme Court had gone home for the day, and with a hundred hungry reporters pacing out in the hallway, the jury in the trial of 27-year-old New York police officer Peter Liang sent a note to Judge Danny Chun: After three days of deliberation, they had reached a verdict. Liang was guilty of second-degree manslaughter and official misconduct in the killing of 28-year-old Akai Gurley last winter. He had just become the first NYPD officer in over a decade to be convicted in a fatal shooting.

A Chinese-American New York cop convicted of killing an innocent black man in 2016, Liang occupies a pretty thorny place in city politics. Many Chinese New Yorkers can remember a time when the NYPD had no Chinese police officers, and some wonder if it’s a coincidence that while white cops who’ve killed black men in recent years have skated, Liang was indicted, prosecuted, and convicted. At the same time, the NYPD and policing in general are under a level of scrutiny that hasn’t been seen in generations, and while there is great political pressure to hold police accountable, there is also deep resistance to systemic change. Tossed on these conflicting currents, Liang is, depending on who you talk to, a bad cop, an unlucky cop, the recipient of bad training, a calculated killer, a fall guy crucified as a sop to police-reform activists, the harbinger of a new era of police indictments, an agent of a racist system, or a victim of it. He might be all of the above.

Liang’s trial was contentious and hard-fought, stretching across three weeks of testimony and argument, but it was notable for the many respects in which the Brooklyn district attorney’s prosecutors and Liang’s defense team were in agreement. Some of this was simply because the basic facts of the case were uncontested and incontrovertible: On November 20, 2014, Liang and his partner, both rookie cops, were on a “vertical patrol” inside the Louis Heaton Pink Houses, a public housing complex in East New York, when Liang’s gun went off. Twenty-eight-year-old Akai Gurley, unarmed and doing nothing wrong, was on the landing one floor below when Liang’s bullet ricocheted off a wall in the poorly lit stairwell and ripped into his heart, killing him.

But beyond just agreeing on the basic facts, the prosecution and defense voiced an emphatic consensus about what Liang’s trial meant. As prosecutors and Liang’s attorneys made their final summations last week, both sides insisted that it was Liang, and Liang alone — not the New York Police Department or American policing in general — on trial.

That assertion served a clear — if very different — purpose for each side. For Liang’s, it was an effort to protect the rookie from his own terrible timing. As the Daily News noted a year ago, of the 179 people killed by New York City police officers in the previous fifteen years, only three cases led to indictment, and only one to conviction. But Liang shot Gurley just months after an NYPD officer was caught on video choking Eric Garner to death on Staten Island and Michael Brown was shot to death by a police officer in Ferguson, Missouri. In the weeks after Liang shot Gurley, the public uproar over unchecked police violence was further amplified by the non-indictment of the shooters of Garner and Brown. “The decision to make a prosecution in this case is no less political than it is in other cases,” says Alex Vitale, a professor of sociology at Brooklyn College who studies police policy. “This is taking place in the middle of a legitimacy crisis in policing.” In such an environment, Liang’s lawyers calculated, the usual rules were turned on their head: In 2016, hiding behind a badge would do their client more harm than good. “Policing in America is not on trial here,” Robert E. Brown, one of Liang’s attorneys, said in closing arguments. “What’s on trial here is the evidence presented by these prosecutors against my client in this courtroom. He shouldn’t be made a scapegoat for any other thing that’s happening.”

Brown’s position was a variation on the sentiment crystallized in a quickly deleted post from an NYPD Twitter account the month after Liang shot Gurley, which featured Jack Nicholson’s climactic monologue from A Few Good Men. (“Deep down, in places you don’t talk about at parties, you want me on that wall! You need me on that wall!”) “It would have been very easy, when [Liang] went into the darkened stairwell, to say, ‘You know what, they don’t pay me enough to go in there.’ But he took an oath,” Brown told the jury. “You want your police officers to protect you. You want police to do their jobs. And to make a determination that his actions were criminal, that his actions were unjustified by taking his gun out, would send a chilling effect to the police officers in New York City.”

Accidents are regrettable, Brown seemed to be saying, but public housing is dangerous, and if you want order imposed on such places, it’s going to be imposed by cops who may have their guns drawn. And if those guns sometimes kill innocent people, it’s too bad, but it’s hardly the sort of injustice that finds remedy in a criminal court. Liang was unlucky — but unremarkable. He was a cop doing what we ask cops to do every day.

Prosecutors, like Liang’s lawyers, argued from the premise that Liang’s shooting of Gurley was unrelated to any wider controversy over police violence. “The defense is right,” Assistant District Attorney Joseph Alexis told jurors in his own summation. “This isn’t about other things that happened in our country. It’s not about other police killings. It’s about this police killing.” For Alexis, however, that distinction wasn’t about protecting Liang — it was about protecting the force from any taint Liang’s case might impart onto it. “It is our position that Peter Liang is not the same as the police officers who bravely keep us safe every day,” Alexis said. “Convicting Peter Liang is not a conviction of the New York City Police Department.”

Liang, in the prosecution’s framing, was a whimpering coward, a guy who couldn’t hack being on that wall: fearful in the dark stairwell, too quick to shoot, too slow to man up, radio the incident in, and try to save Gurley’s life as he lay bleeding out on the landing below. Liang proved in his gutlessness that he was no true police officer, Alexis argued. “There are proud, brave cops who go out every day and patrol every day and every night to keep us safe,” he said. “We honor those cops. We applaud those cops. But Peter Liang falls short of that. Peter Liang is not one of those cops.” Liang’s conduct violated our basic social contract with police, Alexis said. “In exchange for the power we give to police, the power to keep us all safe, the police have a sacred trust that they fulfill, a sacred trust with each community. That trust is that the police department commits to thoroughly train its officers before arming them with deadly weapons and sending them into our communities. That’s why police officers go through rigorous and thorough training.” Liang’s crime, Alexis said, was to disregard that training.

Glimpses of a wider context sometimes found their way into the trial. Since Liang’s guilt or innocence in the eyes of the law turned on whether he followed his training, that training came under scrutiny. Liang and his unindicted partner, Shaun Landau, both failed to perform CPR on Gurley after he was shot, leaving the task to his untrained girlfriend. But jurors learned that Liang’s CPR instruction at the academy had been jaw-droppingly inadequate: Multiple police witnesses testified that the academy CPR instructor had literally orchestrated a class-wide cheating system, giving out answers to the final exam to ensure all his students passed the unit. Because the circumstances Liang encountered in the Pink Houses that night were pertinent, the court heard that residents of that NYCHA building, already coping with unreliable elevators, had also been enduring a pitch-black stairwell, the lights out on three successive landings. And because Liang’s adherence to protocol was in question, police witness after police witness testified that, far from deviant, Liang’s decision to draw his gun on a vertical patrol was par for the course, a standard part of police procedure to protect against “ambushes.”

For some observers, these details are more than marginalia. “The individual officer is operating in a context they don’t control,” says Vitale, the Brooklyn College professor. “Through intensive segregation and concentrated poverty, we’ve produced these zones that produce a lot of violence and crime, and then we’re so shocked that crime happens there that we send in a bunch of armed police. And no matter how good the training is or how experienced the officer is, when we ask the police to play this role, it’s going to produce really bad outcomes from time to time.”

In this, Vitale, an outspoken critic of the NYPD and broken-windows policing, doesn’t sound so different from Patrolmen’s Benevolent Association (PBA) president Pat Lynch, the sometimes cartoonishly zealous defender of New York’s rank-and-file cops, who said after the verdict that vertical patrols are dangerous because officers are given inadequate training and equipment and NYCHA facilities are themselves fundamentally unsafe. Ed Mullins, president of the Sergeants Benevolent Association, went so far as to call on NYPD leadership to suspend vertical patrols altogether.

Thus we find ourselves in a strange place where both police critics and the beat cops themselves agree that there is a problem, one that flows directly from a system that sends young, green police offers into the toughest parts of town with a mandate to patrol and pacify the people living there. And while Police Commissioner William Bratton and defense attorney Brown may both have an interest in suggesting — in this particular case, at least — that there’s no systemic issue hiding behind the curtain, those out on the streets, both patrollers and patrolled, know this is way bigger than one rookie cop.

But that kind of talk doesn’t fit in to the tight binary of a criminal proceeding. “There’s no space for that inside the courtroom,” Vitale says. “There’s no way to put that dynamic on trial. So at best, what most people end up hoping for is individual accountability.”

Individual accountability is precisely what New Yorkers got last week. The morning after the verdict, a Daily News editorial concluded, “The verdict may well be recognized, wrongly, as one about the NYPD and even the state of American policing. Rather, under the rule of law, it was a judgment about the act of one young officer who failed to live up to his obligation to protect and serve.”

While police leadership, prosecutors, and the tabloids are agreed that Liang’s killing of Gurley is to be understood as an aberration, the case of an inept and cowardly bad apple, that consensus hasn’t sat well with some Chinese New Yorkers, many of whom saw in Liang’s indictment a disturbing double standard. “A lot of our people think this is very unfair,” said Eddie Chiu, senior director of the Lin Sing Association, a 116-year-old Chinatown institution. “Why only charge Peter Liang? Because he’s Chinese?”

Chiu helped raise more than $40,000 for Liang from the Chinese community, money the Liang family used to hire their own defense team after growing frustrated with what they felt was inattentive legal representation by the PBA. But other Chinese- and Asian Americans are celebrating Liang’s conviction. CAAAV, an organization that began in Chinatown thirty years ago as the Committee Against Anti-Asian Violence, fighting police brutality against immigrant communities, took the lead in supporting Gurley’s family’s calls for justice against Peter Liang.

Cathy Dang, CAAAV’s executive director, can see how some might find Liang’s prosecution troubling. “He’s an officer of color, and he’s one of the first cops to be put on trial in a very long time,” she says. “There haven’t been indictments of white officers.” But Dang rejects the notion that Liang is a scapegoat. “A scapegoat is someone who didn’t do anything wrong,” she says. “Peter Liang did do something wrong: He killed Akai Gurley.”

Liang’s indictment and conviction aren’t necessarily evidence that he’s a sacrificial lamb, taking the fall for a racist system, Dang says. They might just be evidence that the tide is finally turning. “The climate has changed so much from when Eric Garner and Michael Brown were killed,” she says. “The movement for police accountability has never been as strong as it is now, and those conditions made it so that the district attorney could indict Liang. Around the country, we’re starting to see more and more police officers being held to account in the justice system.”

The day after Liang’s conviction, the family of Akai Gurley was already shifting its focus from individual accountability to a wider structural overhaul. “We want justice beyond the courtroom,” they wrote in a statement. “We want policy changes within the NYPD, to end the violence that police officers routinely inflict on our communities.” They called for an end to vertical patrols, a withdrawal of the NYPD from public housing, and a reallocation of police funds to affordable housing and after-school programs. Police unions, negligent prosecutors, and indifferent politicians are all on notice, they said. “We will keep pushing for the systemic changes we need to end police violence for good.”

Peter Liang was fired by the NYPD the same day he was convicted. He faces up to fifteen years in prison.


‘Convicting Peter Liang Is Not a Conviction of the NYPD,’ Prosecutor Concludes

Sometimes when both sides in a criminal trial are in agreement, it’s for the simple reason that the facts are uncontested and incontrovertible. In the trial of Peter Liang, the New York City police officer facing manslaughter and other charges, nobody disputes the basic facts: On November 20, 2014, Liang and his partner, both rookie cops, were on a “vertical patrol” inside the Louis Heaton Pink Houses, a public housing complex in East New York, when Liang’s gun went off. Twenty-eight-year-old Akai Gurley, unarmed and doing nothing wrong, was on the landing one floor below when Liang’s bullet ricocheted off a wall in the poorly lit stairwell and ripped into his heart, killing him.

There are other, though more complicated, points of consensus between the prosecution and defense. As prosecutors and Liang’s attorneys made their final summations Tuesday morning, both sides insisted that it is Liang, and Liang alone — not the New York Police Department or American policing in general — who is on trial in State Supreme Court in Downtown Brooklyn.

For Liang’s defense, that assertion is critical in protecting Liang from his own terrible timing. As the Daily News noted a year ago, of the 179 people killed by New York City police officers in the previous fifteen years, only three cases led to indictment, and only one to conviction. But Liang shot Gurley just months after an NYPD officer was caught on video choking Eric Garner to death on Staten Island and Michael Brown was shot to death by a police officer in Ferguson, Missouri. In the weeks after Liang shot Gurley, the public uproar over unchecked police violence was further amplified by the non-indictments in the deaths of Garner and Brown. Whatever benefit of the doubt police might have enjoyed from a jury a few years ago, Liang’s defense team evidently feels that hiding behind a badge in 2016 would do their client more harm than good. “Policing in America is not on trial here,” said Robert E. Brown, one of Liang’s attorneys. “What’s on trial here is the evidence presented by these prosecutors against my client in this courtroom. He shouldn’t be made a scapegoat for any other thing that’s happening.”

But in key respects, Liang’s defense is indeed putting the NYPD on trial. In Brown’s wide-ranging summation, he slammed the NYPD academy’s CPR training as cursory and inadequate; he suggested Liang’s trigger, which had a slightly lighter pull weight than the twelve pounds the NYPD advertises as its standard, might have been responsible for the gun’s discharge; and he noted that many police witnesses over the last two weeks of the trial have confirmed that far from being reckless, Liang was in line with commonly accepted practice when he drew his gun in a residential stairwell absent any evident threat. At the core of Brown’s argument was a variation on the sentiment crystalized in a quickly deleted tweet on an NYPD Twitter account the month after Liang shot Gurley, which featured Colonel Nathan Jessup’s climactic monologue (“You want me on that wall! You need me on that wall!”) from A Few Good Men.

“It would have been very easy, when [Liang] went into the darkened stairwell, to say, ‘You know what, they don’t pay me enough to go in there.’ But he took an oath,” Brown told the jury. “You want your police officers to protect you. You want police to do their jobs. And to make a determination that his actions were criminal, that his actions were unjustified by taking his gun out, would send a chilling effect to the police officers in New York City.”

Accidents are regrettable, Brown effectively argued, but public housing is dangerous, and if you want order imposed on such places, it’s going to be imposed by cops who may have their guns drawn, and if those guns sometimes kill innocent people, it’s too bad, but it’s hardly the sort of injustice that finds remedy in a criminal court. Liang was unlucky — but unremarkable. He was a cop doing what cops do.

Like Liang’s lawyers, prosecutors started with the distinction between Liang’s shooting of Akai Gurley and any wider phenomenon of police violence. “The defense is right,” Assistant District Attorney Joseph Alexis told jurors in his own summation yesterday. “This isn’t about other things that happened in our country. It’s not about other police killings. It’s about this police killing.” But in Alexis’s argument, the distinction isn’t about protecting Liang from the taint of association with other police violence. Rather, Liang’s prosecution is the bulwark against any broader indictment of police. “It is our position that Peter Liang is not the same as the police officers who bravely keep us safe every day,” Alexis said. “Convicting Peter Liang is not a conviction of the New York City Police Department.”

Alexis seized on Liang’s own testimony, delivered through bouts of tears on Monday, in which Liang responded to a question about why he returned to the dark stairwell shortly after firing the deadly shot and retreating back into the hallway. “I was just looking for the bullet casing,” Liang answered. This statement, Alexis suggested, amounts to a confession that Liang’s primary concern was to escape responsibility for his actions. “If you can get the shell casing, and you put the shell casing under a microscope, you can match the shell casing to the gun that fired it,” Alexis said. “[Liang and his partner] wanted to hush this up. They wanted to keep it quiet from everybody.”

This cravenness marks Liang as no true police officer, Alexis argued. “There are proud, brave cops who go out every day and patrol every day and every night to keep us safe,” he said. “We honor those cops. We applaud those cops. But Peter Liang falls short of that. Peter Liang is not one of those cops.” Liang’s conduct violated a basic social contract with police, Alexis said. “In exchange for the power we give to police, the power to keep us all safe, the police have a sacred trust that they fulfill, a sacred trust with each community. That trust is that the police department commits to thoroughly train its officers before arming them with deadly weapons and sending them into our communities. That’s why police officers go through rigorous and thorough training.” Liang’s crime, Alexis said, was to disregard that training.

Following the closing statements, Judge Danny Chun explained to the jury the charges brought against Liang, which include second-degree manslaughter, second-degree assault, second-degree reckless endangerment, criminally negligent homicide, and official misconduct.

Jurors deliberated for about an hour Tuesday before the end of the day. They resume their deliberations this morning.


Trial Begins for NYPD Officer Who Killed Unarmed Brooklyn Man in a Dark Stairwell

NYPD officer Peter Liang’s trial on charges stemming from the death of Akai Gurley began in Brooklyn Supreme Court on Monday morning with prosecutors and Liang’s defense lawyers making opening statements.

When the 28-year-old Gurley bled to death on the fifth-floor landing of a public housing building in East New York’s Pink Houses in November 2014, his heart torn open by a bullet fired by Liang, New York City and the nation at large were already in the midst of a reckoning with the issue of police violence and its disproportionate impact on poor and black citizens. Gurley died four months after Eric Garner’s death at the hands of NYPD officers was captured on video, and three and a half months after the police killing of Michael Brown in Ferguson, Missouri, set off nationwide protests. In the weeks immediately after Gurley died, grand juries declined to indict the officers who killed Garner and Brown.

Amid the firestorm of protest rekindled by the non-indictments, the Brooklyn district attorney’s office announced that, unlike the overwhelming majority of officers who shoot and kill civilians, Liang would be indicted, though not for murder; the top charges against Liang are second-degree manslaughter, which carries a maximum sentence of fifteen years in prison, and criminally negligent homicide.

“Akai Gurley is dead today because he crossed paths with Peter Liang,” Assistant District Attorney Marc Fliedner told the jury in his opening statement. “Nobody disputes that.” Fliedner then laid out a timeline of events: Liang and his partner Shaun Landau, both less than two years out of the police academy, were on a patrol in the Pink Houses on the night of November 20, 2014. Not unusually, the lights on the seventh- and eighth-floor landings of the stairwell were out. Neither Liang nor Landau saw or heard anything amiss, but Liang opened the door to the stairwell with his gun drawn and flashlight on. Turning into the stairwell, Liang’s gun discharged, the bullet ricocheting off a wall one floor down, where Gurley and his girlfriend, Melissa Butler, had just entered the seventh-floor landing. Gurley and Butler, not knowing who had fired the shot and fearing for their lives, fled down the stairs, but on the fourth floor, Butler realized Gurley was no longer with her. Turning back, she found him in a pool of blood on the fifth-floor landing. The bullet had pierced his heart.

“What the fuck just happened?” Landau asked his partner. “It went off by accident,” Liang responded. “I’m fired.” Liang maintains his gun discharged by accident, but Fliedner contends Gurley’s death is Liang’s fault. “Peter Liang broke rule after rule after rule,” he told the jury Monday morning. The NYPD patrol guide directs officers not to put their finger on the trigger of their weapon unless they are prepared to fire, but, Fliedner says, “Liang recklessly ignored that rule.” Fliedner further discounted the notion of accidental discharge, noting that the NYPD customizes its service weapons with heavy-pull triggers. “The only reason Liang’s weapon fired is because he pulled the trigger,” he said.

Hertencia Peterson, Gurley's aunt, spoke outside Liang's trial Monday afternoon.

Though Landau urged him to call the incident in, as police protocol requires, Liang hesitated, Fliedner said, dithering for precious minutes on the eighth floor as Gurley bled out three landings below. While the officers argued, Butler had knocked on the door of Melissa Lopez, a housing employee who lived on the fourth floor. Lopez called 911, gave Butler a towel to stanch Gurley’s bleeding, and stayed on the phone to relay instructions on how to perform CPR. Though both officers were trained in CPR, Fliedner told the jury, when they did finally descend the stairwell, neither made any move to assist Butler, by this time sobbing and covered in blood as she attempted to revive Gurley. Instead, Fliedner said, Liang walked past Butler and Gurley to speak with Lopez. “Neither [Liang] nor his partner asked if Akai Gurley was OK,” Fliedner said. “Neither he nor his partner even checked to see if Akai Gurley was breathing or had a pulse. This police officer had just shot an innocent person, this man had just shot an innocent man, and he never even knelt to try to fix what he’d done.”

One of Liang’s defense lawyers, Rae Downes Koshetz, who oversaw police disciplinary proceedings as NYPD deputy commissioner of trials earlier in her career, used her opening statement to ask jurors to put themselves in the position of a green police officer, pulling overtime because of a recent shooting nearby, about to ascend a darkened stairway to a roof in the Pink Houses, “the most dangerous place in a dangerous place.” There is no rule against officers drawing their weapons, Koshetz told the jury, and, despite the prosecution’s contention, Liang was holding his gun properly, with his finger along its side, the weapon pointed down. “Suddenly, the gun accidentally discharges,” she said. The bullet’s trajectory, skidding off a cinderblock wall and into Gurley’s heart, was, she said, “a million-to-one possibility,” the damage so immediately devastating that “no amount of CPR would have saved his life.”

Koshetz urged the jury not to be influenced by the conversation about police violence that has swelled in the past year and a half. “The NYPD is not on trial here,” she said, “nor is any other police department in the country. This is not a referendum on policing in the United States in which you cast a vote, send a message about policing in general.

“Nor is this case about retribution or getting even,” Koshetz said, over the prosecution’s objection. In a counterintuitive rhetorical flourish, she invoked Martin Luther King Jr. in defense of a police officer charged in the killing of an innocent and unarmed black man: “As Martin Luther King famously said, ‘An eye for an eye leaves everyone blind,’ ” she told the jury.

After a brief recess, the prosecution began calling witnesses, including Lopez, and played in its horrifying entirety her seven-minute 911 call. 

When court broke for lunch, members of Gurley’s family spoke briefly outside of the courthouse. “We miss you so much,” said Hertencia Peterson, Gurley’s aunt, addressing her nephew. “Nothing in this world can ever bring you back. But what this family wants is for the one that took your life to be held accountable. To let everyone know that you had goals, dreams, and most of all, you were loved.”

Liang’s trial continues tomorrow and is expected to last several weeks.