PRESERVING MIRANDA RIGHTS

Well now it’s official or as official as it can be. Johannes Mehserle, the former Bay Area Rapid Transit (BART) police officer who shot and killed Oscar Grant who was face down on the train platform during an investigation of a disturbance on a train on New Years Day in Oakland is claiming that he did not mean to shoot Grant, he only meant to use his taser on on the African American youth. The White officer was video taped by passengers with cell phones.

As part of a bail hearing his lawyer told the court that Mehserle did not mean to kill Grant. He accidentally shot his gun at Grant, killing him when he wanted to shoot his taser at him. Of course this would be relevant at a bail hearing since the two issues the judge must consider are whether or not Mehserle is a danger to the community and whether he is likely to flee the jurisdiction of the court.

But ever since the New Years Day shooting the press and some community organizations have been screaming to hear Mehserle’s side of the story.

But let’s not forget his Miranda rights. When I recite a client’s Miranda rights to the him/her I say “Anything you say can and will be used against you.” Any deputy district attorney worth his/her salt would have been able to take any statement made by Mehserle and used it to his detriment either in cross examination or in closing argument.

Mehserle did the right thing in resigning from BART. By being an employee of BART he would have surrendered his Miranda rights. As long as he was an employee of BART the agency could have required him to give a statement.

By letting his lawyer do the talking at the bail hearing and not giving a statement to the press or to BART investigators, Mehserle saved himself a lot of grief at trial.

Of course there are disadvantages of giving your defense away at a bail hearing. Particularly when the press quotes the judge as saying that he does not believe the defense. But we may here more about this in a motion to change the venue.