Alameda County, California Superior Court Judge Morris Jacobson granted the motion of former Bay Area Rapid Transit police officer Johannes Mehserle for a change in venue for his trial for the murder of Oscar Grant who he shot during an investigation of a rowdy incident on the subway at the Fruitdale Station in Oakland.

Judge Jacobson looked at six factors in determining the need for a change of venue. First he considered the nature and gravity of the offense. Since the offense is murder and since Mehserle appears to have committed the murder under color of law the judge found that the facts supports a change of venue.

The second factor is the nature and the extent of the media coverage. In the eight months following Grant’s death there was at least 2000 newspaper articles, 2000 television news segments, 350 radio news strories and and an unknown number of internet downloads on the killing in Alameda County. The quantity and pervasive nature of the media coverage together with polling evidence that shows that 70 per cent of Alameda County residents have prejudged Mehserle supports a change of venue.

The third factor is the size of he county. Alameda County is a large diverse county and therefore the size of the county weighs against a change in venue.

The fourth factor is the status of the defendant. The court found that Mehserle’s status, as a white police office who shot an unarmed African American weighs in favor of a change in venue.

The fifth factor is the status of the victim. The victim’s posthoumus characterization in the press and his personalization by the press, according to the court, favor a change in venue.

The sixth factor is political activity in relationship to the case. The Court found that the extraordinary amount of political activity in the form of demonstrations and riots weighs in favor of a change in venue. There have been at least three major demonstrations that have led to violence ansd numerous other demonstrations. The court staff is afraid of violence during the trial and it may be impossible to find a jury that is not afraid of injury if they come back with a not guilty verdict. Also numerous national and local political and religious leaders have taken a stand and this contributes to a finding that venue should be changed. Considering all of the factors the judge granted the motion for a change in venue.

The next step is to select a California city where the trial can be held. But this may be a problem. In determining whether a defendant can get a fair trial precedent bases the decision on press coverage. With the internet and a world press it may be difficult to find a jury anywhere in California in which the members have not made up their minds in advance. One of the factors Judge Jacobson looked at involved statements by political and religious leaders. These are national leaders and it may effect the selection of a jury in any county in the state. The fact that the defendant is White and the victim was African American will not change in whatever county is chosen.

Moving the trial out of Alameda County, will remove some of the tension around the trial. But it is questionable whether our founding fathers would have approved of moving the trial. One of the issues in colonial America was the patriot’s objection to the removal of the trial of any Crown officer to England. Another issue was the use of the mob to close the Crown’s courts. When you consider Mehserle to be a police officer much like the Crown’s officers and when you consider the colonial mobs to be much like demonstrators today it becomes clear that the writers of the Constitution may not have approved of Judge Jacobson’s order.

Joshua Johnson lived in a two bedroom apartment in Sacramento County with his girlfriend, their infant daughter and two roommates, Jessie Rider and Devon McDermott. He supported his family by being the neighborhood dope dealer.

On August 28, 2005 he received a phone call from Del Jay Ugalino, wanting to buy some dope. Johnson said, fine, come on over. Ugalino who had bought marijuana from Johnson ten to fifteen times before was no stranger, Johnson brought two friends with him. After Johnson got the marijuana (3 oz) out of the safe Ugalino pulled a gun out and attempted to rob him. But Johnson was swift on his feet. He put the marijuana in his underwear and ran out the front door. Luckily Ugalino and his friends did not take Johnson’s girl friend, roommates and baby hostage. Instead they ran out the front door and got into their pick up truck and left. But as the truck pulled away they hit a post leaving the bumper and the license tag behind which made the work of the police much easier.

Ugalino was convicted of one count of residential burglary, two counts of attempted robbery (Johnson and Rider), possession of a controlled substance (ecstacy) and being a felon in possession of ammunition. The jury also found that he used a gun during the felonies.

The significant legal issue is whether Ugalino can be convicted of attempted robbery of Rider. The California Court of Appeal said no. Under California law robbery is

” the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

The court ruled that a victim of a robbery must be either the owner of the property, the person in possession of the property or a person with a special relationship to the owner such as to be in control of the property. Since Rider was only a roommate and the marijuana was kept in a safe for which Rider did not have a key he did not have the special relationship necessary to be the victim. Ugalino was guilty on the other charges including the attempted robbery of Johnson and I am sure he is doing enough time in prison thinking about the statement that he gave to the police when he was arrested: He told them they “couldn’t arrest him for ripping off a drug dealer.”

This brings up the second question. Since when do dope dealers go to the police for protection. Not many years ago if a dope dealer came to me and told me Johnson’s story, I would have said, hey you got away with your life, be happy–if you call the police they might arrest you. And in fact right now I am representing a woman in Alameda County who called the police to report a burglary at her house. The police entered the house to look for the burglar who had gone out the back door. The police found a significant amount of marijuana and she is charged with possession for sale of marijuana. Thus, I guess, outside of Sacramento County things have not changed much.