Former BART Police Officer Johannes Mehserle was held to answer at his preliminary examination for first degree murder for the killing of Oscar Grant who was shot while face down and while being held by BART police officers on the platform at the Fruitvale Station in Oakland.

At the preliminary examination his defense counsel, Michael Rains took the unusual step of putting on a defense. He put on a number of witnesses in order to try to prove that Mehserle did not intend to kill Grant. Rather it was the defense point of view that Mehserle accidently pulled his gun and shot it when he meant to pull his Taser.

But at the end of the Preliminary Examination, Alameda County Superior Court Judge Don Clay said that he had no doubt that Mehserle intended to use his gun and to kill Grant. Furthermore he expressed doubt about the credibility of some of the BART police officers who testified on behalf of Mehserle.

In response Rains, according to the Oakland Tribune, said that Alameda County’s judicial system is biased against Mehserle and that he will not receive a fair trial trial in the county. Rains plans to file a motion for a change of venue.

But Rains’ problem is that the test for a change of venue is not dependent upon an alleged bias of one judge. Rather in order to obtain a change of venue Rains will have to show that it is impossible to pick an unbiased jury. He will have to show that due to the vast amount of publicity the case has received that it is unlikely that a fair jury can be chosen. If all of the members of the jury panel have made up their minds prior to the trial that Mehserle is guilty then he will be entitled to a change of venue.

This is generally a very difficult task but it may be possible in this case. There has been a tremendous amount of publicity and many people have made up their mind. There have been numerous demonstrations outside the courthouse and in the streets in which people have exhibited their anger at Meserle for the killing. There was also a bomb scare at his parent’s house in nearby Napa County.

Just the same, both sides will do extensive polling to try to determine whether or not Mehserle can get a fair trial in Alameda County. Meserle would like to move the trial out of the county while the district attorney would like to keep the trial in Alameda County. The two primary issues in picking a jury will be race and attitudes towards the police. Officially of course neither side can base decisions on jury selection on race. But you can be quite sure that both sides are thinking about it. Whatever they say about a post racial society it does not work in jury selection. Grant was African American and Meserle is White. One reason the district attorney wants to keep the trial in Alameda County is that the county has a relatively high percentage of African Americans who are likely to vote for the conviction of a white police officer who shot an African American man. Meserle and his attorneys would prefer to move the trial to a county with less African Americans in the jury pool.

Likewise Alameda County jurors, with its large percentage of third world residents, are more likely to be skeptical of a white police defendant and other members of the BART police force who are likely to testify on behalf of Mehserle. Judge Clay stated that he did not find some of the BART officers credible in their testimony. Therefore Rains will want to move the trial to some county where police officers are held in higher esteem than Alameda County.

Between now and the trial we can expect considerable litigation and dispute over the venue of the trial. While Rains was wrong in claiming the need for a change of venue, based on judicial bias, Judge Clay’s comments did not help the district attorney keep the trial in Alameda County. If the people of Alameda County believe that Judge Clay is the greatest judge west of the Mississippi and therefore they find credible his comment about Mehserle’s intent to kill Grant, they may form a bias against Mehserle. Therefore, the more press Clay’s comments get the more likely the jury will be biased against Mehserle and the more likely the venue will change. Is there any doubt why Rains called a press conference to complain about Clay’s comment just as both sides are beginning to poll the community to determine whether bias exists?u