Reading news accounts of the pre-trial hearings in Johannes Mehserle’s trial for the killing of Oscar Grant, it’s clear that Michael Rains, his attorney, is going all out to get Mehserle an acquittal–even though millions of people have seen the videos of a uniformed Mehserle, then a BART police officer, shooting a prone and unresisting Oscar Grant in the back.

Rains’ pre-trial filings ask the judge to allow the jury to choose between second-degree murder and acquittal. His argument? Mehserle meant to pull out his Taser, not his gun.

Why isn’t first-degree murder on the list?  Because, says Raines, Mehserle had no malice–and the whole definition, he says, of first degree murder is a “conscious, intentional wrongdoing either of a civil wrong … or a criminal act … with the intention of doing harm to the victim.”

To help support these arguments, Rains is also asking to limit discussion ONLY to what Mehserle said and did, excluding his fellow officers (who are on record cursing out Grant), and forbidding the court to refer to Grant as “the victim”, which says Rains, assumes a crime has been committed.

At the same time, the attorney wants the court to always call Mehserle Officer Mehserle and to not allow as evidence the information that he fled to Nevada, and that he no longer works for BART.

He also requests that the DA tell his witnesses not to call the Grant killing a murder, and to allow evidence in court of Grant’s status as a parolee, his drinking that night and his possible fighting on the BART train.

In addition, Rains asks the court to agree to exclude information about fellow BART officers Tony Pirone and Marysol Domenici including their sexual relationship, the fact they were fired, and that an independent investigation of the shooting suggested they be let go.

Rains also wants to allow expert testimony on Tasers.

This bold strategy, which basically asserts Mehserle did not committ a crime, will force the DA to prove intent to get a second-degree murder conviction; the other option would be full acquittal. Allowing evidence that suggests Grant was a criminal, a fighter, and disruptive right before his death also allows for arguments around Mehserle’s concern to protect the public from a  disorderly thug, an argument it would be hard to follow by anyone who saw the videos of Grant, lying face-down, being shot in the back in cold blood.

There is a hearing Friday am where the judge will rule on Rains’ motions; this will be a crucial factor in how information in this case will be positioned and what the jurys’ choices will be.

See continued coverage of this
topic here.

About The Author

Susan Mernit is editor & publisher of Oakland Local ( a news & community hub for Oakland, CA. A former VP at AOL & Netscape, & former! Yahoo Senior Director, Mernit was consulting program manager for The Knight News Challenge, 2008-09; was a 2012 Stanford Carlos McClatchy Fellow; and is a board adviser to The Center for Health Reporting at USC, Annenberg School of Journalism. She has consulted with many non-profit organizations on strategy, product development and social media/engagement, including, TechSoup Global, Public Radio International and the Institute for Policy Studies/Economic Hardship Reporting Project, led by Barbara Ehrenreich.