Perhaps some of you remember BART officer Johannes Mehserle who claimed that on New Year’s day 2009 he was grabbing for his taser but instead shot Oscar Grant with his gun while Mr. Grant was lying face down on the floor of the Fruitvale BART station after he and several others had been detained in the aftermath of an alleged fight. Here’s a video of the incident. WARNING: The scenes displayed may be too graphic for some to watch:

At his trial in Los Angeles (where the case had been moved upon request by Mehserle’s attorneys) a jury found on Thursday the Mehrsele was guilty of the lesser charge of involuntary manslaughter and not murder, apparently believing Mehserle’s testimony that he mistakenly grabbed his pistol rather than his taser when he shot Mr. Grant in the back, killing him:

A jury found former BART police Officer Johannes Mehserle guilty Thursday of involuntary manslaughter, concluding that he did not intend to kill train rider Oscar Grant when he shot him in the back on New Year’s Day 2009 but acted so recklessly that he showed a disregard for Grant’s life.

The verdict was an all-but-unprecedented instance of a police officer being convicted for an on-duty shooting. But it deeply disappointed Grant’s relatives, who said the video-recorded shooting was a murder and that Mehserle deserved a sentence years longer than the one he is likely to receive.

“My son was murdered,” said Wanda Johnson, Grant’s mother, outside the downtown Los Angeles courthouse where the trial was moved to escape heavy publicity in the Bay Area. “He was murdered and the law has not held the officer accountable.” […]

John Burris, an Oakland attorney representing Grant’s family, decried “a true compromise verdict.”

“The system is rarely fair when a police officer shoots an African American male,” Burris said. “No true justice has been given.” Grant was African American and Mehserle is white.

Grant’s uncle, Cephus “Bobby” Johnson, said “we knew from the beginning that we were at war with the system. … We have been slapped in the face by this system that has denied us true justice.”

Alameda County District Attorney Nancy O’Malley, speaking at a news conference in Oakland, said she was disappointed and frustrated by the verdict.

“We believe Johannes Mehserle was guilty of the crime of murder,” she said. “We presented the case that way, we presented the evidence that way, and the jury found otherwise.” […]

Video footage played repeatedly in court showed that as Mehserle raised his gun, Pirone had his left knee on Grant’s neck. Pirone’s left hand was pressing Grant’s head into the platform, and Pirone’s right hand was holding Grant’s right arm – the same one Mehserle said he had struggled with – behind his back.

Considering the location of the trial I am not surprised. The judge in the case, Judge Robert Perry, had previously ruled that Mehserle could not be convicted of first degree murder, and at best could only be convicted only second degree murder charges. This was extraordinary in itself, considering that premeditation does not require proof of extended time to form that intent. Usually this is a question left for the jury as fact finder to decide, and the Judge’s decision to take that decision from them is rare:


Perry said there wasn’t enough evidence to justify a conviction for first-degree murder.

“The shooting occurred in a manner absent of premeditation to support first-degree murder,” Perry said during a hearing without the jury present. […]

Second-degree murder is defined as an intentional killing that isn’t premeditated or planned, or a killing caused by dangerous conduct and a defendant’s lack of concern for human life.

Perry said a jury should sort out to what degree, if any, Mehserle should be held accountable. The judge conceded, however, that jurors might be confused by the choices.

At the trial, the defense argued primarily that Mehserle was not to blame for the killing because he had been poorly trained by BART officials in the proper use of his taser. The prosecution argued that Mehserle had no reason not to know where his taser was located since in the minutes prior to the shooting, he had drawn and reholstered his taser twice and aimed it at Grant and the other persons who was detained.

Stein pounced on another reason Mehserle should have known where his Taser was: The officer had been on the train platform for less than 2 1/2 minutes before the shooting. And in that brief period of time, Mehserle had already pulled out and reholstered his Taser two times as a warning to Grant and his friends.

The defense also cast aspersions on Grant’s character, claiming he was a parolee and that he had been previously tased by a police officer in a separate traffic stop incident in 2006.

At trial witnesses testified that Mehserle’s fellow police officer involved in the incident used excessive force and taunted Grant with racist slurs just prior to the shooting. This point was repeated by Prosecuting attorney Stein in his closing argument:

Stein said that Pirone was “out of control, he was unhinged,” uttering the racist slurs, “Bitch-ass nigger, right? Bitch-ass nigger, right?” at Grant moments before Mehserle shot him. Stein said the two cops were “acting in tandem as police officers do.”

Oscar Grant’s uncle was frustrated that a previous incident of Mehserle’s violent beating of a different African American male was not permitted to be recounted at trial:

Grant’s uncle, Cephus Johnson, spoke to the media at lunchtime breaks throughout the trial. He told the press that court rules prohibited the prosecution from being able to introduce into evidence previous attacks by Mehserle, including the beating of an African American male. “The system is to blame, the system denied us the right to produce evidence,” he said.

Indeed, in California evidence of prior bad acts bad acts by a defendant may be admitted in the following instances:

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident …

c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

First evidence of Mehserle’s prior beating of an African American male would go to the question of intent, as it would show that Mehserle had previously demonstrated a propensity for violence when dealing with African Americans. Second, witness testified as follows regarding the conduct of the police and Grant at the trial:

The testimony also came from witnesses who said most BART police officers on the Fruitvale platform early Jan. 1, 2009, were using excessive force against Grant and his friends. They all also said that Grant and his friends never resisted arrest or tried to strike the officers.

Second, Mersehle claimed he thought he saw Grant reaching for a gun. However, in his statement on the stand he admitted that he had not followed proper police protocol in circumstances where a suspect in custody is believed to be reaching for a weapon:

As he reached for Grant’s arm, Mehserle said, Grant tensed up and refused to move his arm behind his back. Mehserle said he thought Grant might have been reaching for a gun when he saw Grant move his right hand into his right front pocket.

“I remember the digging motion,” Mehserle said. “It was like he was looking for something in his pocket.”

Mehserle said he then yanked on Grant’s right arm harder, remembering that the strength he used forced Grant’s entire body to move.

“I was pulling as hard as I could,” Mehserle said. “At that point, I made that decision, at that point to tase him.” […]

While Mehserle said he believed he was justified in using his Taser on Grant because he suspected Grant was reaching for a gun, deputy district attorney David Stein suggested even that decision was wrong. […]

Stein said Mehserle’s movements just before the shooting were not consistent with the movements an officer should make after deciding to use a Taser on a suspect who is lying on the ground.

Mehserle admitted he never yelled “gun” when he thought Grant was reaching for one as officers are taught to do if they see a weapon. Mehserle said he did not yell “gun” because he never saw one.

Stein also pointed out that Mehserle admitted he did not notice that Grant was being pinned down by then-BART police Officer Anthony Pirone even though officers are taught always to be aware of their surroundings.

“The only thing that went through my head was that I had to hurry up and tase,” Mehserle said.

Stein ended his questioning of Mehserle by asking the former officer why he had not told anyone — during his 10 minutes on Oakland’s Fruitvale BART station platform after the shooting or a friend who stayed with him for a week after the killing — that he had made a mistake.

It should also be noted that photographic evidence prior to the shooting demonstrated that Mehserle had looked down at his gun, as described by Prosecuting attorney David Stein in his opening statement:

Using video taken by bystanders to illustrate how the shooting occurred, Stein said Mehserle did not make a mistake. Stein pointed to the video showing Mehserle looking down at his holster before pulling out the gun.

“Was the defendant confused?” Stein asked. “Look where he’s looking? He’s looking at what he’s doing.”

Stein also noted that Mehserle wears his gun on his right side and his Taser on his left side. Mehserle would have had to reach across his body to grab his stun gun, Stein said.

Finally, it should be noted that Mehrsele had been portrayed by his attorney as a “non-aggressive” cop, which would seemingly open the door to evidence of Mehserle’s prior violent abuse of suspects to contradict those statements:

During his testimony, Mehserle cried repeatedly on the witness stand. Rains tried to portray Mehserle as a non-aggressive cop, different than Pirone. He said Mehserle was featured in his high school yearbook as “most huggable.”

Specifically here’s what Mehserle claimed occurred when he arrived on the scene.

He added he intercepted a few men who he said were approaching two fellow officers that had detained Grant and several friends against a concrete wall. He said the men, who turned out to be more of Grant’s friends, were taunting the BART officers.

“I just instructed them to get back,” Mehserle said.

He said he eventually looked at Grant and Jackie Bryson, who appeared to be upset. The other two officers, Tony Pirone and Marysol Domenici, had pulled their stun guns out, and given the situation, Mehserle said he decided to do the same. Before Grant was shot, he snapped a photo of Mehserle pointing his Taser stun gun in his direction.

Mehserle said he wasn’t sure what had transpired but tried to cool down Grant and Bryson.

“They were yelling ‘(expletive) that officer,’ ‘I’m going to sue,'” Mehserle recalled the two men saying of Pirone, who was described by some onlookers as the most aggressive and hostile toward Grant and his friends. The shooting, and the events leading up to it, were captured on video by several bystanders.

In short, Mehserle portrayed himself as a peace maker, the stable, calm voice of reason who tried to defuse the situation. Yet he pulled his taser on Grant twice (showing he knew where it was), and he never objected to the violent actions of his fellow officers.

Furthermore, he was the police officer who ultimately used the greatest force in the situation by shooting a man lying face down on the platform of the Fruitdale BART station while his partner, Pirone, the officer who had been escalating the situation, was kneeling on Grant’s neck and shoulder. Videos show Mehserle standing over Grant as he fires his weapon.

All this evidence which contradicts Mehserle’s testimony justifies admission of Mehserle’s abusive and violent prior bad acts as a police officer in my opinion. Under these circumstances evidence of Merserle’s violent abuse of previous suspects, including his beating of an African American male, would be justified to attack the credibility of Mehserle’s statements that his action to grab his gun rather than his taser was an accident and not intentional, that he thought Grant had a gun which justified the use of a taser, and that he didn’t notice that his fellow officer Pirone, who had been directing racial slurs at Grant prior to the shooting, had Grant pinned face down on the ground and under control.

After the verdict, the US Department of Justice has announced it will re-open with its own investigation into a violation of Mr. Grant’s civil rights by Mehserle.

On Friday, a Justice Department spokesman said that the civil rights division will review the case along with the U.S. attorney’s office in San Francisco and the FBI.

The lumbering, 6-foot-5-inch and 250-pound Mehserle was led out of a Los Angeles County courtroom in handcuffs Thursday after having been convicted of involuntary manslaughter in the slaying of the 22-year-old Grant on an Oakland train platform last year.

Mehserle, who had been a relative rookie with just two years’ experience under his belt at the time of the shooting, is one of the first San Francisco Bay Area cops to be convicted of killing someone in the line of duty. He faces a sentence of between two and four years in state prison for the manslaughter conviction. He faces an additional three to 10 years for having used a gun in the commission of a crime.

This follows the precedent of the Rodney King incident where an all-white white state court jury found the white police officer not guilty of using excessive force in beating Mr King, an incident also captured on video. The biggest difference here is the King, unlike Grant was not killed. Whether the US attorney will try Mehserle on civil right violations for the shooting is unknown at this time.

However, much like the King case, the jury was predominately white, and there were no African Americans who served on the jury:

There were no African Americans on the jury that convicted Mehserle of involuntary manslaughter. Seven jurors identified themselves as white, three identified themselves as Latino and one identified herself as Asian. One juror declined to state a race or ethnicity.

Mehserle after the trial concluded but before the verdict issued the following apology:

“For now, and forever I will live, breathe, sleep and not sleep with the memory of Mr. Grant screaming ‘You shot me’ and me putting my hands on the bullet wound, thinking the pressure would help while I kept telling him ‘You’ll be okay,’ ” Mehserle wrote in the letter, dated Sunday. […]

“I don’t expect that I can ever convince some individuals how sorry I am for the death of Mr. Grant, but I would not feel right if I didn’t explain my thoughts as I wait for a decision by the jury …”

Mehserle didn’t apologize on the witness stand. But in his letter, the former officer said, “It saddens me knowing that my actions cost Mr. Grant his life, no words can express how truly sorry I am.”

He wrote that he wanted to talk with Grant’s mother, Wanda Johnson, and with Sophina Mesa, the mother of Grant’s young daughter, but that death threats directed at his family and friends “resulted in no communication occurring. I hope the day will come when anger will give way to a dialogue.

The Grant family has not accepted Mehserle’s apology nor so they consider it genuine.

Grant’s uncle and an attorney for his family said Friday they were unmoved by the apology. If Mehserle were genuinely sorry, they said, he should have said so long before now. […]

Cephus “Bobby” Johnson, Grant’s uncle, said that if Mehserle had written the letter the day after the killing and given it to the family, it would have carried more weight.

Now, he said, it amounts to “a convict pleading for mercy.”

“This is the first time we are hearing all of this,”
Johnson said. “From the first, we had been condemned by [Mehserle’s] father who said that we were all trying to capitalize off his death. That told us that there was no sincerity in his heart or his son’s heart about what happened to Oscar. Here we were, being crucified for seeking justice. We hadn’t done anything wrong.”

Mr. Johnson, you did one thing wrong. Your family was born black in America. Imagine what the verdict might have been if Mehserle had shot a young white man, instead of a young black one. Imagine if most of the eyewitness witnesses for the prosecution had not been black but white and middle class. Imagine if the jury had paid more attention to the video evidence and less to the tears in Mehserle’s eyes. I doubt Mehserle would have received a conviction for the murder charge which calls for the least punishment — only 2-4 years in prison. What do you think?

One last video of the shooting:

Tell me you saw any justification for the use of a taser or a gun by Mehserle in that situation? I sure didn’t. I hope this case is re-tried by the US Attorney. It certainly is deserving of further review in light of the questionable decisions made by the Judge in the case and by the jury. I guess that watching a white police officer cry on the stand was sufficient in their eyes to convict him of the least damaging charge available, but I wonder what they would have done had his past history of abuse and violence toward blacks had been admitted in the record as it should have been in my opinion.

I also wonder if the presence of even one African American on the jury might have made a difference. Obviously the clear video evidence and the inconsistencies in the testimony of Officer Mehserle were not enough to believe their own eyes, rather than Mehserle’s lies.