The May 7 hearing for Johannes Mehserle, the former transit cop who killed Oscar Grant on New Year’s Day of 2009, settled several key issues prior to the beginning of the trial scheduled for June 2010.  The waters have been somewhat muddied, however, due to much of the media coverage surrounding this case, both before and after the May 7 hearing.  This essay, by the reporter covering the case for Oakland Local, New America Media, KALW, The Black Hour, The Campanil and other groups, crowd-funded via Spot. us, takes a deeper look at the issues--and their implications.

ONE:  Did Johannes Mehserle "Shoot" and “Kill” Oscar Grant?

Johannes Mehserle did in fact shoot and kill Oscar Grant.  That is not a disputable fact; it is completely true and accurate to state such.

 Every video of the incident that has surfaced thus far shows the undisputable fact that Johannes Mehserle shot Oscar Grant.

Mehserle’s defense is that he meant to pull his Taser and not his gun when he shot Oscar Grant, but he does not deny shooting Oscar Grant.

 Michael Rains, Mehserle’s defense attorney states in his proposed instructional brief to the court that, “There is no doubt that Mehserle fired the shot that killed Grant …”.

The only doubt seems to exist in the many media reports of the case.

These many media reports, possibly due to confusion of legal terminology and/or the laws concerning libel, or in furtherance of society’s leanings toward giving police officers the benefit of the doubt, state that Mehserle “allegedly shot” Grant (http://bit.ly/3M0r86, http://bit.ly/bK4Kac, http://bit.ly/9dxlor, http://bit.ly/aO7pjv.

 Mehserle did in fact shoot Grant in the back as Grant  lay on his stomach on an Oakland subway platform on January 1, 2009.

 Mehserle’s shooting and killing of Oscar Grant is not an allegation it is undisputable fact.

What is disputed is whether Mehserle did it on purpose or not.  If he did in fact intentionally shoot Oscar Grant that would be murder.

Mehserle was indicted for murder June 4, 2009 in Alameda County, California, with Superior Court Judge Don Clay ruling that Mehserle should stand trial for murder.

The purpose of the trial, scheduled to begin with jury selection on June 1st, is to determine if Mehserle is indeed guilty of murder.  According to the Judicial Council of California Criminal Jury Instructions, effective August 14, 2009 (CALCRIM):

 Homicide is the killing of one human being by another. Murder and manslaughter are type[s] of homicide … If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter.

 There are “degrees” to murder namely, first degree or second degree.  In order to be convicted of murder in the first degree, “malice aforethought” must be present.

 “Malice aforethought” is defined by West's Encyclopedia of American Law as, “A predetermination to commit an act without legal justification or excuse; a malicious design to injure.  An intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed.”

 This is what the jury will be deciding in June and until it does, this is what the media should be careful in reporting.

TWO:  Oscar Grant’s “Criminal Past”

Mehserle’s defense attorney submitted to the court - as evidence of prior misconduct - an arrest report from October 15, 2006, in which Grant was charged with resisting arrest. The report states the facts leading up to and including Grant’s arrest on that date, and that the arresting officer used a Taser to subdue him.  Rains submitted this report as evidence under section 352 of California’s Evidence Code.  It is the only document that Rains sought to enter into evidence on this issue. 

Judge Robert Perry allowed into evidence certain portions of the report and denied others.  Specifically, Perry believes that the issue of Grant’s resistance in this case should be heard by the jury, but that the other facts contained in the arrest report of October 15, 2006 are not relevant to what happened to Grant on January 1, 2009.

In other words, a portion of one arrest report from 2006 will be mentioned during the trial.  No other arrest reports were submitted to the court by Michael Rains, Mehserle’s attorney.  Judge Perry additionally ruled that other facts related to Oscar Grant’s background/history were also not relevant and will not be allowed for discussion at the trial.

Media headlines of this portion of the May 7 hearing reported that “Grant’s Criminal Past” (http://bit.ly/aYdUOQ) or that “Grant’s Criminal History” (http://bit.ly/9PpyVI, http://bit.ly/byQLkm) will be allowed at trial.

While this is factually accurate, headlines stating that “Grant Resisted Arrest on Prior Occasion,” or, “Grant’s Arrest Report” would also be just as factually accurate.

The difference between the two sets of examples may be that one conjures up images of a hardened, career criminal, while the other may pertain to an aspect of a person’s past.
   
Michael Rains stated in court that it was not his intention to cast aspersions on Mr. Grant; it would not be “appropriate” or “right,” however, Alameda County District Attorney David Stein stated that was exactly what Rains was doing and objected to the inclusion of the arrest report as evidence of a “character trait.”

Stein’s argument was that this one incidence of resisting arrest was more likely evidence of a “habit” and not a character trait.  Habit would be “How a person responds to a particular environment; it is not character evidence. 

Procedurally, Stein’s argument was that Grant’s alleged resistance should be classified under Section 1105 of the California Criminal Code:

“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”

Judge Perry stated more than once throughout the more-than-six-hour hearing that “the nature and quality of Oscar Grant’s resistance will be a central issue in this trial.”  Elsewhere during the hearing, the judge specifically ruled that Mehserle’s defense could not refer to Grant’s resistance as unlawful, stating that this was an issue for the jury to decide.

The arresting officer’s words of October 15, 2006 are the only authority on this matter.  No videos – cell phone or otherwise – exist.  To question whether or not Oscar Grant actually resisted is not too far fetched. We may never truly know what the “nature and quality” of this incident was.

The various videos of Mehserle’s shooting of Oscar Grant available on the internet show a BART officer (subsequently identified as Tony Pirone) with his knee on Oscar Grant’s head, neck or upper back. 

At one point, observers of the video can see former officer Pirone changing position, switching to his opposite knee which is on Oscar Grant’s neck or upper back, and putting his hand on Oscar Grant’s head.  It is during the placing of Pirone’s knee that Oscar Grant’s arms appear to be moving. 

It is not unreasonable to assume that Oscar Grant’s hands and arms are moving due to the pressure placed on his head, his neck or his upper back, by this officer who appears to be somewhat muscular and stout.* 

This could be what is meant by Judge Perry’s statement regarding the “nature and quality of Grant’s resistance.

Rodney King, the motorist whose videotaped beating by LAPD officers in 1991 was seen around the world, was also accused of resisting arrest.  His continued movements to shield himself and to get away from from as many as three policemen swinging batons towards his head and upper body were considered to be resistance. 

Is it that resistance by men of color is the crime?

* A quick word on marijuana

The Alameda County D.A. submitted to the court an In Limine Motion to Exclude Evidence under Evidence Code, Section 352, of a small cup of marijuana found at the scene on the subway platform, and a “medical marijuana” card that was said to be found in Oscar Grant’s wallet.  The marijuana cup has since been identified as belonging to another individual on the subway platform; both these two pieces of evidence were excluded from the proceedings and this was not contested by Mehserle’s defense. 

I mention it here only to underscore the possibility that Oscar Grant may have suffered from a malady that quite possibly could have been aggravated by Officer Pirone kneeling on Oscar Grant’s head, or neck, or upper back, which could also explain Grant’s alleged “resistance.”

Three: Police Privilege

Superior Court Judge Robert Perry denied Mehserle’s March 26th Motion to Augment Jury Venire.  Rains’ motion was a challenge to the California Code of Civil Procedure, section 219, which excludes uniformed law enforcement officers from serving on juries.  Rains’ stated that police officers as a class are systematically excluded from jury service whereas other “classes,” such as firemen, teachers, or social workers, are not excluded. 

Rains’ argument was that the inclusion of this “class” (police officers) in the pool of potential jurors would provide a greater opportunity for Johannes Mehserle’s Constitutional (U.S. and California) right to a fair and impartial jury to be realized. 

Rains argued in his motion that the perspective of police should be part of the jury since “the unique powers given to law enforcement officers, as well as the constraints imposed upon them and the organizational structures which define their daily existence, cannot be shared by other members of the community who are outside this profession.” 

Judge Perry noted that “Federal agents, FBI, Homeland Security, retired officers have the types of experiences similar to Mehserle,” inferring that such persons are currently allowed to sit on juries.  As it is California law to exclude uniformed officers from jury service, the judge denied the motion.
 
Rains also sought to have the court direct the District Attorney and prosecution witnesses to refer to Mehserle as “Officer Mehserle” during the trial in an April 23 motion.  Rains argued that doing so would avoid the speculation of guilt by jurors that may arise from the fact that Mehserle resigned rather than provide a statement to BART investigators of his account of the shooting of Oscar Grant. 

Judge Perry stated that “he is no longer an officer” and “that would allow confusion,” and the defense’s motion was denied.

And rightly so.

Johannes Mehserle resigned from his employ with BART, through his lawyer, on the very day that he was supposed to be interviewed by BART investigators about his killing of Oscar Grant.  He subsequently fled the state and went to Nevada. 

Mehserle’s defense maintains that he did not flee but left, with full knowledge of the Alameda County District Attorney’s office, and that his departure was because he feared for his safety.  This notwithstanding, he was arrested in Nevada and returned to California.

Defense Attorney Rains submitted a motion asking the court for a bail amount of $100,000. Mehserle’s bail was set at $3 million.

Such a high bail amount can only be due to the facts of committing a homicide and being a flight risk. 

Rains’ request to have Mehserle’s bail lowered at a prior preliminary hearing was denied by Perry who stated in court that he believed Mehserle did indeed pose a flight risk.

Mehserle’s bail and his defense are said to have been paid for by police unions and a “statewide fund for police officers.”
 
Why is Mehserle enjoying the perks of law enforcement privilege even though he resigned his position as a law enforcement officer and fled the state to avoid questioning?