A judge is set to determine whether to overturn the conviction of a former NYPD officer who accidentally shot and killed a man in a darkened housing complex stairwell because of a juror failed to disclose that his father had been convicted of manslaughter.
A judge must determine why juror Michael Vargas didn't tell court officials about his father's conviction before being seated on the trial for Peter Liang, the rookie cop who accidentally fired a bullet that ricocheted off of a wall in a Brooklyn housing project and fatally hit Akai Gurley. Liang is set to be sentenced on Thursday.
Liang's attorneys filed a motion seeking a new trial after Vargas, 62, told newspapers that his father served time in prison on manslaughter charges. During the selection process, Vargas responded, "No, no," when asked if any close relatives had been convicted of a crime.
Liang's attorneys said in the motion that Vargas' family history made him "a stranger who sneaks into the jury room." They declined to comment on the case Tuesday.
Legal analyst Michael Bachner, of Bachner and Associates, said that the whole case could be overturned because of Vargas, calling the juror's omission a "huge concern for the prosecution and the quest for justice."
"I think there is an extremely strong argument for (the judge to throw out the case)," Bachner said.
Vargas declined to comment to NBC 4 New York on Tuesday, but he told the Daily News last week that the defense was "grasping at straws."
"Do they really think I (convinced) 11 other jurors to convict him?" he told the newspaper. "They must be out of their minds."
A spokesman for Brooklyn District Attorney Kenneth Thompson said in a statement after the motion was filed that "Peter Liang received a fair trial and we will respond to the motion in court." The office didn't offer further comments on Tuesday.
Thompson has already recommended that Liang receive probation and six months of house arrest when he's sentenced later this month. Though the charge carries no requirement for prison time, Liang faced up to 15 years in prison. Liang was fired from the police force upon his conviction in February.
Thompson said that while Liang acted recklessly, he didn't intend to kill the victim, Akai Gurley.
The rookie officer had been patrolling the public housing high-rise with his gun drawn in 2014 when he said a sudden sound startled him and he fired. The bullet ricocheted off a wall and hit Gurley, 28, on a lower floor.
At the trial, prosecutors argued that Liang should not have had his gun out. They also said he did nothing to help Gurley as he lie dying on the floor. Liang's attorney had argued that Gurley's death was tragic, but was not a crime.
A second officer who was present at the shooting scene was also fired from the force over allegations that he didn't do enough to help Gurley.
While the judge does not need to follow Thompson's proposal at Liang's sentencing proceeding next month, sentencing recommendations from prosecutors typically hold significant weight in most criminal cases.