Johannes Mehserle was convicted of the involuntary manslaughter of unarmed Oscar Grant III who was lying face down on the platform floor at the Fruitdale BART station on New Years 2009 by a Los Angeles jury. The trial was moved to Los Angeles due to fear that Mehserle, who at the time of the shooting was a BART police officer would not get a fair trial in Oakland where he shot and killed Grant after being called to the BART Station to deal with unruly passengers. The killing was recorded by BART patrons on cell phones and widely spread over the internet.

Prior to the beginning of the jury deliberation the judge dismissed the first degree murder charge.

But the judge did instruct the jury on second degree murder, involuntary manslaughter and voluntary manslaughter. Unlike first degree murder, second degree murder does not require premeditation. All of the evidence indicated that on the spur of the moment in an effort to detain Grant Mehserle shot him. There was no evidence of premeditation. Both first degree murder and second degree murder require an intent to kill. There was no question that Mehserle killed Grant using his gun. If the district attorney proved beyond a reasonable doubt that Mehserle intended to shoot Grant with his gun the intent to kill would be shown.

But Mehserle’s attorney, Michael Rains argued that he accidentally pulled his gun and shot it. His intent was to use his Taser. If this was the case and the jury apparently believed it or at least did not believe beyond a reasonable doubt that Mehserle intended to kill Grant, he was guilty of manslaughter, not murder.

California law defines manslaughter as:

the unlawful killing of a human being without malice. It is . . . :
(a) Voluntary–upon a sudden quarrel or heat of passion.
(b) Involuntary–in the commission of an unlawful act, not amounting to felony; or
in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. . . .

Thus it is likely that the jury found that Grant was killed “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” It is pretty clear that the jury found that Mehserle acted “without caution and circumspection by pulling his gun out of his holster and shooting grant instead of pulling this Taser out and shooting grant with the Taser.

Assuming that Mehserle is not granted probation, the penalty for involuntary manslaughter is two, three or four years. The jury also found that Mehserle used a gun in the course of killing Grant. For this he can get an additional three, four or 10 years. Thus at sentencing on August 6th Meherse is facing up to 14 years in prison.

The Supreme Court, yesterday, reversed the denial of a writ of habeas corpus by the Eleventh Circuit Court of Appeals on the grounds that the Circuit Court failed to consider all possible exceptions to the rule that an appellate court accepts the facts as found by the trial court. In this case, which predated the Antiterrorism and Effective Death Penalty Act of 1996, the appellate court adopted the factual findings of the lower court. While generally appellate courts must accept the facts as found by the trial court 28 USCA 2254(d) names eight exceptions to the rule:

“(1) that the merits of the factual dispute were not resolved in the State court hearing;

“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

“(3) that the material facts were not adequately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

“(7) that the applicant was otherwise denied due process of law in the State court proceeding;

“(8) or unless … the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record .” §2254(d) (emphasis added).

Jefferson was charged with murder of a co-worker on a fishing trip.

As a child, Lawrence Joseph Jefferson suffered major head damage when he was run over by a car. While it is disputed, his trial attorney claimed that an expert told him that it was not necessary to investigate the injury prior to trial. Only minimal evidence was introduced about the injury either at trial or at the sentencing hearing. The habeas alleges that trial counsel was incompetent for not fully investigating the effect of the injury on Jefferson’s behavior. Furthermore in considering the habeas the state court considered only whether or not Section 2254(d)(8) (see above) applied. It found that the factual determination was fairly supported by the record and therefore it denied the habeas.

But there was another issue the court did not consider. After the state court hearing on the habeas the trial court had an ex parte meeting with the prosecutor and asked the prosecutor to draft the decision. Not only was Jefferson not told about the ex parte meeting but his attorneys were neither given the chance to draft an order or to review the prosecutor’s before it was accepted in toto. Thus the state court did not consider whether the trial court may have violated Section 2254(d)(7) and denied Jefferson due process. The Supreme Court vacated the Circuit Court’s decision and remanded the case for further consideration.

Unlike other recessions, crime has decreased during the current  recession. During the first half of the year murder and manslaughter decreased by ten per cent according to the FBI’s latest report. Property crimes fell by cent and violent crimes by 4.4 per cent.

At the same time the number of people sentenced to death has decreased. But the number of executions has increased. Due to the time lag between the time an individual is charged with murder and the time the person would be convicted of murder this cannot be credited to the recession. The length of time between a conviction and an execution can be 20 years.

The black letter law is that “a federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” A state procedural ruling is adequate if it is “firmly established and regularly followed.” In Beard, Secretary, Pennsylvania Department Of Corrections, et al. v. Kindler the Supreme Court decided whether a rule giving the courts discretion could be “regularly followed.”

Joseph Kindler, Scott Shaw and David Bernstein, burglarized a music store. Shaw and Bernstein were arrested while attempting a get away. Kindler escape but was found and arrested. Bernstein turned state evidence. Kindler and Shaw killed him. They were tried and sentenced to death for the murder.

While post trial motions were pending, Kindler escaped to Canada. He was arrested in Canada and the United Stated moved to extradite him. He escaped for a third time and it took two years to find him but he was arrested after committing another burglary. This time he was extradited.

While he was on the lam Pennsylvania courts threw out his post trial motions since he was not legally before the court. After he was returned to the United States he moved to reinstate his motions. The court refused and he filed writs of habeas corpus first in the state courts and then in the Federal Courts.

The Third Circuit Court of Appeals granted his habeas finding that since Pennsylvania law gave the judge discretion on whether or not to dismiss the motions when he fled the jurisdiction the law was not “regularly followed.”

The Supreme Court reversed. It pointed out that laws that give judges discretion are often valuable and provide beneficial rights to defendants. The court felt that the Third Circuit position would would discourage states from discretionary laws and the system would be harmed as a result.

Justice Kennedy in a concurring decision pointed out that the purpose of the “the adequate state grounds” requirement is not to aid escapees and that if for no other reasons this requires the reversal of the Third Circuit ruling.

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.

Saturday Nashville police found the bodies of former Tennessee Titan star quarterback, Steve McNair and his girlfriend, Sahel Kazemi, dead in her condo. McNair was found on a couch. He was shot four times. Kazemi was shot once in the head. A semiautomatic pistol was found underneath her body.

McNair’s death has been ruled a homicide. A homicide is any killing of a human being by another human being. With four bullets in his body, two of which were in his head and the other two in his chest it is unlikely that he killed himself and homicide is a pretty good bet.

As to Kazemi the issue is a little more complicated. At first blush it looks like she killed him and then shot herself. And this is probably what happened. But the Nashville police are being somewhat cautious and rightly so by looking at other possibilities. For example it is certainly within the realm of possibility that a third party killed both of them and left the gun there in order to make it look like Kazemi killed McNair and committed suicide. After all, his wife, if she knew about Kazemi, might have a pretty good motive.

Last night Nashville police announced that Kazemi purchased the gun from a private individual Thursday evening. But prior to making any conclusions the Police Department asked the Bureau of Alcohol, Tobacco Firearms, and Explosives to run ballistics tests.

The Nashville police will now use their crime scene investigation unit to either confirm or deny the murder/suicide thesis. They will do a gunshot residue test on Kazemi’s hands to find out if she held the gun when it went off. It will be relatively easy since she is dead. If she was living she could have washed her hands or wiped them off.

Then they will do various ballistics tests. As a bullet travels through the gun’s barrel it obtains markings from the “lands and grooves” which are spiral lines inside the barrel created during manufacture to improve accuracy. As the bullet travels down the barrel it becomes heated and the “lands and grooves” become implanted on the bullet. Once on the bullet they are known as rifling marks. In addition, inside the barrel there are microscopic imperfections known as striations which create unique markings on the bullets and casings. Using special microscopes police experts can not only compare the bullets to the barrel but they can shoot bullets from the gun and determine whether they have identical markings to the bullets used to kill McNair and Kazemi.

Furthermore the gun can be examined for DNA. DNA on the gun will then be compared to Kazemi’s DNA and the police will be able to determine whether or not she held the gun.

By the time these tests are done the police will have pretty good evidence whether it was a murder/suicide or whether a third party killed one or both of the people.