The prosecution of former BART police Officer Johannes Mehserle continued Friday as a new judge reviewed the defense’s proposal to dismiss the murder charge against him.
Alameda County Superior Court Judge Thomas M. Reardon asked both sides several questions but did not issue a decision, which he said he will release by Oct. 2, when the court will consider the defense’s request to move the court to a different county. Friday’s hearing lasted less than an hour.
Mehserle allegedly shot Oscar Grant III, who was unarmed, at the Fruitvale BART station on Jan. 1. Judge C. Don Clay, who presided over the 7-day hearing, decided in June that there was enough evidence to try Mehserle with murder. He said he did not believe the defense’s claim that Mehserle intended to use his Taser and accidentally used his firearm.
“There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun, not a Taser,” Clay said.
Clay ended the hearing before the defense presented all of its witnesses. Rains claimed this deprived Mehserle of his right to due process and that the charge should thus be dismissed.
In a statement dated Aug. 26, Rains wrote that Clay’s conclusion was based on two faulty assumptions that would have been debunked by the defense’s next witness, a Taser expert.
Rains said Clay assumed that officers were trained to draw their Taser with their strong arm and fire them with one hand, and that he thus incorrectly concluded that since video evidence shows the right-handed Mehserle drawing his weapon with his right hand and using both arms to discharge his weapon, Mehserle intended to use his firearm and not his Taser.
The statement also shed light on the extent Rains might be willing to go in defending Mehserle, even mentioning the possibility of a federal appeal.
“The legal issues before the Court now, and those that will inevitably arise throughout this litigation, are thorny and will be reviewed by the Court of Appeal, the state Supreme Court, and perhaps by the federal courts,” Rains said in the statement. “If California intends to send a police officer to prison for the rest of his life for an on-duty shooting that occurred during the arrest of a resisting suspect, it had better ensure that such a prosecution is squeaky clean.”
Rains is also requesting a change of venue, which would move the trial to a different county on the basis that members of jury selected in Oakland would already have made up their mind against Mehserle.
Rains scolded the approach of the public toward the prosecution in his statement.
“From just hours after the Grant shooting, members of the media, community and religious leaders, and politicians, have been calling for Mehserle’s conviction of murder,” he said in the statement. “They—and those who resorted to civil unrest during the weeks after the Grant shooting—have little understanding of the important and precedent-setting legal issues raised by the case. They have no sense that the decisions made here will have profound impact on the administration of justice in this state going forward. As to this case, at least, they appear to be unconcerned with the rule of law.”
Rains also claimed that David Stein, the district attorney prosecuting the case, has been swayed by the public.
“In a matter of such extraordinary seriousness and importance, and which has caused such upset in the community, it is the (district attorney’s) job, beyond all others, to insist that the rule of law prevail over sentiment and outrage,” Rains said in the statement. “As the United States Supreme Court said 75 years ago, the prosecutor’s ‘interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ … But by refusing in almost all instances to directly address defendant’s legal arguments and claims of error, the DA sends precisely the opposite message: justice be damned; we just want to win the case, give the community what it demands, and move on.”
Reardon said he has read and reviewed all transcripts from the hearings as well as all evidence that was presented. Although he did not make a ruling, he asked the attorneys to clarify several points regarding the case.
Reardon asked the attorneys about the orientation and position of Mehserle’s Taser before it was drawn. He also discussed bringing Grant’s arrest history into the case.
Reardon also pointed out that there was testimony during the hearing regarding Mehserle’s handling of the firearm as compared to the trained use of a Taser, and thus that the testimony of the Taser expert would not have been entirely new information. Pirone had testified that Mehserle’s hand position while using the firearm was consistent with the use of a Taser. Rains acknowledged this and said he was trying to add this to the record because he anticipated that he might not be able to have the Taser expert testify. Michael O’Conner, the other district attorney present at Friday’s hearing, said that the Taser expert Rains wanted to testify was not the actual person who had trained Mehserle and that his testimony would thus not have be as relevant.
Rains also suggested that the judge should have given more consideration to Mehserle’s character. O’Conner said character would have been “negligible at best” and would not have affected the outcome.
Outside the courtroom, Grant’s uncle Bobby Johnson said he does not think Reardon will rule in the defense’s favor by lowering the charge from murder to manslaughter. Johnson said he still thinks Mehserle’s intention was to murder Grant.
Tags:
Alameda Superior Court,
BART police,
Johannes Mehserle,
Oscar Grant III
