By Andrew Keshner, From New York Law Journal

An attorney for police officer Peter Liang will argue his client deserves no prison time as punishment for his manslaughter conviction after firing a shot that ricocheted into an innocent man’s heart.

But first, the defense will file papers claiming that there was not enough evidence to convict Liang for the death of Akai Gurley.

“We’re stunned that a jury could find that this case satisfied the elements of manslaughter in the second degree,” Rae Downes Koshetz of Manhattan said in an interview Tuesday.

A jury found Liang guilty Thursday evening.

Koshetz, with co-counsel Robert E. Brown of Manhattan, will seek to overturn the manslaughter and official misconduct verdict either by Acting Brooklyn Supreme Court Justice Danny Chun, who presided over the trial, or on appeal.

She said the verdict was against the weight of the evidence and included an unfair switch in arguments when a prosecutor in closing accused Liang of intentionally shooting Gurley in a public housing building’s pitch-black stairwell.

After Liang testified about hearing a “quick sound” in the moments before firing his weapon, Brooklyn Assistant District Attorney Joseph Alexis told jurors Liang recklessly shot after hearing the sound (NYLJ, Feb. 10).

“He heard a noise in the darkened stairwell. And instead of pointing his flashlight at that noise, he pointed his gun at it. And he pulled the trigger and he shot Akai Gurley,” Alexis said.

The defense first raised the arguments about a changed prosecution theory during a mistrial motion, which Chun denied from the bench. The judge ruled the prosecution made those arguments in an effort to show Liang’s criminal recklessness (NYLJ, Feb. 11).

The defense’s motion to set aside the verdict, pursuant to Criminal Procedure Law §330 are due March 9. The prosecution’s reply is due March 30.

Another challenge is Liang’s sentence.

Though the top conviction, second degree manslaughter, a C felony, carries a five to 15-year maximum, Koshetz said she would ask for the minimum: no incarceration.

Calling Liang a “principled and decent man,” Koshetz said she would note Liang’s lack of a criminal record and the lack of aggravating circumstances.

She said she would also emphasize that Liang, 28, was “where he belonged, doing what he was supposed to do” by patrolling to try protecting building residents.

John Byrne, a Brooklyn District Attorney spokesman, declined to comment on the office’s sentence recommendation.

Liang is scheduled to be sentenced April 14.

He was automatically fired from the New York City Police Department by virtue of his conviction. His partner at the time, Shaun Landau, was also fired. He was given automatic transactional immunity for his grand jury, testimony in the Liang case.

Immediately after the verdict, Brooklyn District Attorney Kenneth Thompson told reporters the conviction should not be viewed as a statement on policing in New York City and would not have a chilling effect on police officers.

Furthermore, Thompson, the son of a New York City police officer, said the case had “nothing to do” with fatal police-civilian encounters in other places like the death of Eric Garner in Staten Island or Michael Brown’s death in Ferguson, Missouri.

Thompson said jurors “came together here to affirm Akai Gurley’s life mattered.” He later noted, “there are no winners here.”

Since the verdict, the defense has received more than 500 letters of support from across the country. Koshetz said the authors are people who say Liang is not guilty, was singled-out as an Asian-American and was swept up in “anti-police sentiment and lumped in with other incidents that are vastly dissimilar.”

Joseph Tacopina, of Tacopina & Seigel, who has represented police officers, said attempting to keep wider issues out of the Liang trial was like asking jurors “to ignore the pink elephant in the room.”

Tacopina, who was not involved in the Liang case, won an acquittal for his client accused of assaulting Abner Louima, who was brutalized and forcibly sodomized with a broken-off broom handle by police officers after being arrested outside a Brooklyn nightclub in 1997.

Another defense attorney, Marvyn Kornberg of Queens, said he would have opted for a bench trial but said the conviction did not hinge on that alone.

Kornberg’s police clients included Justin Volpe, who pleaded guilty in the middle of the Louima trial for his role in the assault.

Thompson was a member of the Eastern District prosecution team in the Louima case.

Despite Liang’s conviction, Koshetz stood by the decision to put the case in front of a jury.

“I remain a big fan of the jury system. I believe in the system, in the collective wisdom of juries,” she said. “If the jury in our estimation, does not get it right or makes an error, the courts are there to undo mistakes.”

IMAGE:From left, attorney Rae Downes Koshetz speaks to reporters in December while joined by Nancy Liang, her son Peter Liang and co-counsel Robert E. Brown. NY Daily News

For more on this story go to:  http://www.newyorklawjournal.com/id=1202749839849/Liang-Defense-Team-Prepares-for-Appeal-of-Guilty-Verdict#ixzz40WhoIkY1