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.

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.

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

Alameda County Superior Court Judge Don C. Clay today postponed the Preliminary Examination in the case of former Bay Area Rapid Transit (BART) police officer Johannes Mehserle for the New Years Day murder of Oscar Grant at the Fruitdale BART station following the weekend killing of three Oakland police officers. A fourth officer is brain dead following the incident this weekend in which a parolee is alleged to have shot the four officers following an automobile stop. Defense attorney Michael Rains said that he was close to two of the officers and emotionally he could not give it his best at the Preliminary Examination scheduled for the 23rd.

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.