May 25, 2010 SF Bay View
Friday, June 4, 6:30 p.m., ‘Operation Small Axe’ film screening followed by town hall meeting on the film and the trial
Saturday, June 5, 6:30 p.m., ‘Operation Small Axe’ film screening with performance by Someothaship Connect (Declaime, Georgia Ann Muldrow)
Also, the LA Coalition for Justice for Oscar Grant meets every Sunday, 5 p.m., at Chuco’s Justice Center, 1137 E. Redondo Blvd, Inglewood
by Thandisizwe Chimurenga
The May 7 hearing for Johannes Mehserle, the former transit cop who killed Oscar Grant on New Year’s Day of 2009, settled several key issues prior to the beginning of the trial scheduled for June 2010. The waters have been somewhat muddied, however, due to much of the media coverage surrounding this case, both before and after the May 7 hearing. This essay takes a deeper look at the issues – and their implications.
One: Did Johannes Mehserle ‘shoot’ and ‘kill’ Oscar Grant?
Johannes Mehserle did in fact shoot and kill Oscar Grant. That is not a disputable fact; it is completely true and accurate.
Every video of the incident that has surfaced thus far shows the indisputable fact that Johannes Mehserle shot Oscar Grant.
Michael Rains, Mehserle’s defense attorney states in his proposed instructional brief to the court, “There is no doubt that Mehserle fired the shot that killed Grant ….”
The only doubt seems to exist in the many media reports of the case.
These many media reports, possibly due to confusion of legal terminology and/or the laws concerning libel – or in furtherance of society’s leanings to give cops the benefit of the doubt – state that Mehserle “allegedly shot” Grant (http://bit.ly/3M0r86, http://bit.ly/bK4Kac, http://bit.ly/9dxlor, http://bit.ly/aO7pjv).
Mehserle did in fact shoot Grant in the back as Grant lay on his stomach on an Oakland subway platform on Jan. 1, 2009.
Mehserle’s shooting and killing of Oscar Grant is not an allegation; it is indisputable fact.
What is disputed is whether Mehserle did it on purpose or not. If he did in fact intentionally shoot Oscar Grant, that would be murder.
The purpose of the trial, scheduled to begin June 10, is to determine if Mehserle is indeed guilty of murder. According to the Judicial Council of California Criminal Jury Instructions, effective Aug. 14, 2009 (CALCRIM):
“Homicide is the killing of one human being by another. Murder and manslaughter are type[s] of homicide … If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter.”
There are “degrees” to murder: first degree or second degree. In order to be convicted of murder in the first degree, “malice aforethought” must be present.
“Malice aforethought” is defined by West’s Encyclopedia of American Law as “A predetermination to commit an act without legal justification or excuse; a malicious design to injure. An intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed.”
This is what the jury will be deciding in June and, until it does, this is what the media should be careful in reporting.
Two: Oscar Grant’s ‘criminal past’
Mehserle’s defense attorney submitted to the court – as evidence of prior misconduct – an arrest report from Oct. 15, 2006, in which Grant was charged with resisting arrest. The report states the facts leading up to and including Grant’s arrest on that date and that the arresting officer used a Taser to subdue him. Rains submitted this report as evidence under Section 352 of California’s Evidence Code. It is the only document that Rains sought to enter into evidence on this issue.
Judge Robert Perry allowed into evidence certain portions of the report and denied others. Specifically, Perry believes that the issue of Grant’s resistance in this case should be heard by the jury, but that the other facts contained in the arrest report of Oct. 15, 2006, are not relevant to what happened to Grant on Jan. 1, 2009.
In other words, a portion of one arrest report from 2006 will be mentioned during the trial. No other arrest reports were submitted to the court by Michael Rains, Mehserle’s attorney. Judge Perry additionally ruled that other facts related to Oscar Grant’s background and history were also not relevant and will not be allowed for discussion at the trial.
Media headlines of this portion of the May 7 hearing reported that “Grant’s Criminal Past” (http://bit.ly/aYdUOQ) or that “Grant’s Criminal History” (http://bit.ly/9PpyVI, http://bit.ly/byQLkm) will be allowed at trial.
While this is factually accurate, headlines stating “Grant Resisted Arrest on Prior Occasion” or “Grant’s Arrest Report” would also be just as factually accurate.
The difference between the two sets of examples may be that one conjures up images of a hardened career criminal, while the other may pertain to an aspect of a person’s past.
Stein’s argument was that this one incidence of resisting arrest was more likely evidence of a “habit” and not a character trait. Habit would be how a person responds to a particular environment; it is not character evidence.
Procedurally, Stein’s argument was that Grant’s alleged resistance should be classified under Section 1105 of the California Criminal Code:
“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”
Judge Perry stated more than once throughout the more-than-six-hour hearing that “the nature and quality of Oscar Grant’s resistance will be a central issue in this trial.” Elsewhere during the hearing, the judge specifically ruled that Mehserle’s defense could not refer to Grant’s resistance as unlawful, stating that this was an issue for the jury to decide.
The arresting officer’s words of Oct. 15, 2006, are the only authority on this matter. No videos – cell phone or otherwise – exist. To question whether or not Oscar Grant actually resisted is not too farfetched. We may never truly know what the “nature and quality” of this incident was.
The various videos of Mehserle’s shooting of Oscar Grant available on the internet show a BART officer – subsequently identified as Tony Pirone – with his knee on Oscar Grant’s head, neck or upper back.
At one point, observers of the video can see former Officer Pirone changing position, switching to his opposite knee, which is on Oscar Grant’s neck or upper back, and putting his hand on Oscar Grant’s head. It is during the placing of Pirone’s knee that Oscar Grant’s arms appear to be moving.
It is not unreasonable to assume that Oscar Grant’s hands and arms are moving due to the pressure placed on his head, his neck or his upper back by this officer who appears to be somewhat muscular and stout.
This could be what is meant by Judge Perry’s statement regarding the “nature and quality” of Grant’s resistance.
Is it that resistance by men of color is the crime?
A quick word on marijuana
The Alameda County DA submitted to the court an in limine motion to exclude evidence under Evidence Code Section 352 of a small cup of marijuana found at the scene on the subway platform and a “medical marijuana” card that was said to have been found in Oscar Grant’s wallet. The marijuana cup has since been identified as belonging to another individual on the subway platform. Both these two pieces of evidence were excluded from the proceedings and the exclusion was not contested by Mehserle’s defense.
I mention it here only to underscore the possibility that Oscar Grant may have suffered from a malady that quite possibly could have been aggravated by Officer Pirone kneeling on Oscar Grant’s head or neck or upper back, which could also explain Grant’s alleged “resistance.”
Three: Police privilege
Superior Court Judge Robert Perry denied Mehserle’s March 26 motion to augment jury venire. Rains’ motion was a challenge to the California Code of Civil Procedure Section 219, which excludes uniformed law enforcement officers from serving on juries. Rains stated that police officers as a class are systematically excluded from jury service whereas other “classes,” such as firemen, teachers or social workers, are not excluded.
Rains’ argument was that the inclusion of this “class” (police officers) in the pool of potential jurors would provide a greater opportunity for Johannes Mehserle’s constitutional right to a fair and impartial jury, guaranteed under both the U.S. and California constitutions, to be realized.
Rains argued in his motion that the perspective of police should be part of the jury since “the unique powers given to law enforcement officers, as well as the constraints imposed upon them and the organizational structures which define their daily existence, cannot be shared by other members of the community who are outside this profession.”
Judge Perry noted, “Federal agents, FBI, Homeland Security, retired officers have the types of experiences similar to Mehserle,” inferring that such persons are currently allowed to sit on juries. As it is California law to exclude uniformed officers from jury service, the judge denied the motion.
Judge Perry stated that “he is no longer an officer” and “that would allow confusion,” and the defense’s motion was denied.
And rightly so.
Johannes Mehserle resigned from his employ with BART, through his lawyer, on the very day that he was supposed to be interviewed by BART investigators about his killing of Oscar Grant. He subsequently fled the state and went to Nevada.
Mehserle’s defense maintains that he did not flee but left with the full knowledge of the Alameda County District Attorney’s Office and that his departure was because he feared for his safety. This notwithstanding, he was arrested in Nevada and returned to California.
Defense Attorney Rains submitted a motion asking the court for a bail amount of $100,000. Mehserle’s bail was set at $3 million.
Such a high bail amount can only be due to the evidence he committed a homicide and was a flight risk.
Rains’ request to have Mehserle’s bail lowered at a prior preliminary hearing was denied by Perry, who stated in court that he believed Mehserle did indeed pose a flight risk.
Mehserle’s bail and his defense are said to have been paid for by police unions and a “statewide fund for police officers.”
Why is Johannes Mehserle enjoying the perks of law enforcement privilege even though he resigned his position as a law enforcement officer and fled the state to avoid questioning?
Four: Attorneys and clients and privileges
Michael Rains, attorney for Johannes Mehserle, filed the defense’s list of potential witnesses on May 11 with the court. The list of 27 names includes several BART police officers and several eyewitnesses to Mehserle’s shooting of Oscar Grant in the back, including those who taped the incident either with cell phone cameras or other means, and John Burris, attorney for the family of Oscar Grant in their $50 million lawsuit against the Bay Area Rapid Transit district.
According to Burris, Rains’ listing of him as a “potential witness” in this case is “a disingenuous effort on his part …. He’s made a motion before to have me gagged; the court ruled that it has no jurisdiction over me.”
Why does Michael Rains want John Burris to testify as a witness for the defense? Burris says that Rains wants him to give testimony regarding claims made to him by some of his clients. These clients happen to be many of Oscar Grant’s friends who were with him on the Fruitvale subway platform when Mehserle shot Grant at 2 a.m. on the morning of Jan. 1, 2009.
The San Francisco Chronicle ran a 305-word article on Feb. 1, 2010, headlined, “Unexpected Help for Mehserle – Grant’s Friends” (http://bit.ly/dgRCSm), which quoted unidentified “sources” as saying that the testimony validated Mehserle’s assertion that he intended to Tase Oscar Grant.
During Burris’ Feb. 5 press conference (posted on IndyBay at http://bit.ly/caKWOP), he stated, amongst other things, that the testimony of Oscar Grant’s friends “doesn’t necessarily mean that it helps Mehserle. … (A)t the end of the day, whatever their interpretation of the events, that’s just their interpretation. That’s not evidence; their observations are, but at the end of the day, we all know, there’s a big – huge – number of video tapes in this case. Those video tapes are clear evidence of what took place that night.”
“It is a mischaracterization to say that they’re … ‘helping.’”
In addition to being angry at what he alleges are BART’s leaks of information in violation of a protection order, Burris stated that BART’s actions placed his clients “in a jeopardy situation; you have placed what appears to be snitch jackets on them, and all they were doing was responding to questions and they were responding to questions at a time when it was under a protective order. And so then how come that was released? Was it designed to cause these boys immediate danger?”
Burris claimed later that some of his clients’ family members had been told they would be seen as “snitches” for their testimony and this, Burris believes, is at the heart of Rains’ attempted move.
According to Burris, Rains “wants me to testify regarding claims made by these clients. He wants me to testify if my clients told me that because he (Rains) thinks they might change their testimony. … Any statements made are covered by attorney-client privilege; he knows that.”
Burris says he has not yet received a subpoena to testify. If and when that happens, Burris says his attorney will go into court “and we’ll fight the requirement to testify because of attorney-client privilege.”
Michael Rains also filed, as of April 30, a brief in opposition to the admitting of a Breath Alcohol Testing (BAT) form into evidence in the trial.
The prosecution’s position is that the BAT form is an admission of guilt by Johannes Mehserle. David Mastagni, the lawyer who initially represented Mehserle in the first hours after the shooting, is alleged to have made an objection to a box on the form under the heading of “Reason for Test,” which states the nature of the shooting. The objection was leveled at the reason entitled “Post Accident.”
Mastagni is also alleged to have stated elsewhere that the shooting was not accidental but intentional. A copy of the form submitted to the court by the prosecution shows Mehserle’s signature and a handwritten box that says “Discharge of Firearm” with a checkmark next to it.
Michael Rains gives several arguments in his 11-page brief as to why this form should not be admitted into evidence; not the least of which is the conversation between Mastagni and Mehserle before and after the form was signed. Rains argues that, amongst other things, anything that was said between Mastagni and Mehserle is in the realm of attorney-client privilege.
Sounds familiar, doesn’t it?
The ending to the story is that Judge Robert Perry said the BAT form was “off the table” in terms of being admitted into this trial. Since it was a requirement of Mehserle’s employment to take the test at the time of the incident, it cannot be used against him.
Thandisizwe Chimurenga is a community journalist and a founder and host of Some of Us Are Brave, a Black women’s public affairs show on KPFK-Pacifica Los Angeles. She has worked with the L.A. Watts Times newspaper, the KPFK Evening News and Free Speech Radio News. She is currently covering the trial of Johannes Mehserle, the killer of Oscar Grant, scheduled to begin in Los Angeles in June 2010, for New America Media and several other Bay Area news organizations. She can be reached at firstname.lastname@example.org.
Oscar Grant special Saturday, June 12, 10 a.m.-12 noon on KPFA 94.1 FM or kpfa.org, hosted by Minister of Information JR
Mass protest Monday, June 14, 7 a.m. all day at LA Courthouse, 210 W. Temple at Broadway – Come when you can
Commentary by Thandisizwe Chimurenga
Five: Media matters
The court system strives to make sure that jurors are fair, impartial, objective and capable of using reason and critical thinking skills.
Should that fail, however, attempting to influence the populace before they even get into the courtroom is a nice back-up plan.
Michael Rains, attorney for Johannes Mehserle, has been under a gag order in the case since last year, but one shrewd way he gets around the order is to play to the press through his legal motions. The issues he chooses to focus on and the reasons why make for great copy and are thus carried to the populace with very little effort.
Media as judge
Some news organizations insist on calling the proceedings the “second-degree murder trial” of Johannes Mehserle (see, for example, http://bit.ly/bL8nhZ, http://bit.ly/c1apLP, http://bit.ly/9zoGjr, http://bit.ly/9nCyFg, http://bit.ly/aZIZyF).
The Alameda County district attorney has charged Mehserle with murder but has not specified what degree – what type of murder – he should be charged with.
Murder in the second degree – or outright acquittal – is what Michael Rains wants the jury to choose. Rains doesn’t want the jury to convict his client of murder in the first degree or voluntary manslaughter or involuntary manslaughter.
Rains submitted a motion to the court outlining his desires for the jury. However, regardless of what it is that Rains wants, the judge has not yet ruled on this request. More than likely, the judge will not rule on the request until all evidence has been presented in the case.
It is, therefore, factually inaccurate for a news organization to state what type of trial this is when the district attorney hasn’t or before the judge in the trial has even made his decision.
Media as cheerleader
Pre-trial hearings are held in order to determine the types of evidence, lines of questioning, types of witness testimony etc. that can be used when the trial actually gets started. Instead of gambling on certain items or issues being ruled inadmissible or being overruled during the trial, it is one avenue for attorneys to ensure that their game plan is part and parcel of the trial.
Rains’ pre-trial motions in this case make various requests: One motion asked the judge to instruct witnesses for the prosecution to call his client “Officer” Mehserle. In the same motion Rains asked that witnesses be instructed not to call Oscar Grant a “victim.”
One motion requested that Oscar Grant’s arrest report from a 2006 encounter be entered into evidence. The judge ruled that a portion of the report be allowed as evidence and that the rest was not relevant.
Use of an expert by the defense is not an unreasonable request. In this case, however, a motion was never made requesting such.
Michael Schott, the forensic video image analyst who will testify for the defense, was listed on the Defense’s List of Potential Witnesses.
As reflected in the Minute Order of the court (i.e., the court’s notes):
“Defense request to call an expert on videos is heard. The court will allow jurors to get some assistance as long as it does not cross the line into advocacy. The people are against allowing interpretation of the video. The court will have a further hearing in advance of trial on this issue on June 1, 2010.”
In other words, the prosecution wanted to ensure that the defense’s video expert would not “tell the jurors what they are seeing,” but would only tell the jurors his opinion of what he saw on the videos. A hearing was called and Schott was sworn in to give “sample testimony” as to what he would testify to during the trial. After some grilling by the district attorney, the court was satisfied and stated that Schott could testify with some restrictions.
Burris’ name appeared on the Defense’s List of Potential Witnesses. Burris felt this was an attempt both to silence his criticisms of Mehserle and BART and to keep him from being an observer in the courtroom during the trial.
Burris submitted a motion to have his name removed from the witness list but the motion was denied. The court ruled his name would remain on the list; however, he may not be called as a witness, and the judge found that a gag order imposed last year on the defense and the prosecution should extend to both Burris and BART’s civil trial attorneys.
The gag order imposed on Burris comes five months after Rains initially brought it up.
Rains’ motion didn’t “win” because he did not submit a motion – Burris did.
Most recently, on June 9, 2010, the judge denied three motions that Rains had filed just prior to the opening of the trial. While most news reports stated the motions were denied, few if any appeared to continue their “sporting match” theme with Rains as loser.
Rains submitted a motion asking the court to exclude former officer Anthony Pirone’s use of a racial slur against Oscar Grant. Although Rains states in his motions that Grant first used the racial slur against Pirone, he still hoped to exclude it, arguing that it would be prejudicial to his client. The court ruled that it was part and parcel of what happened on the BART platform on New Year’s 2009 when Oscar Grant was killed and should be allowed.
Six videos of Oscar Grant’s shooting by Johannes Mehserle are known to exist and have been compiled by both the defense and the prosecution. Rains submitted a motion requesting that only the defense’s video compilation be allowed in court, stating that the prosecution’s had errors in it. The judge ruled that was a matter better left to the jury.
Finally, Rains wanted to exclude the testimony of Sophina Mese, girlfriend of Oscar Grant and mother of their 4-year-old child, from the court. Rains had argued that her testimony would be redundant and that the prosecution wanted her included to evoke sympathy for Oscar Grant.
In response, the prosecution stated that Ms. Mesa’s testimony would not be redundant; it would in fact offer additional testimony that Oscar Grant was afraid of Tasers. Complimentary to that testimony is the prosecution’s introduction of evidence by Oscar Grant himself: Grant took a cell phone picture of Johannes Mehserle pointing his Taser at him.
No wonder Rains wanted Mesa excluded from the trial.
The prosecution will introduce evidence by Oscar Grant himself: Grant took a cell phone picture of Johannes Mehserle pointing his Taser at him.
The Honorable Robert Perry, judge in this case, says that court will be held five days a week, from 8:30 a.m. until 4 p.m.
The mainstream media will probably be putting in a little more time than that; they usually do.
Thandisizwe Chimurenga is a community journalist and a founder and host of Some of Us Are Brave, a Black women’s public affairs show on KPFK-Pacifica Los Angeles. She has worked with the L.A. Watts Times newspaper, the KPFK Evening News and Free Speech Radio News. She is currently covering the trial of Johannes Mehserle, the killer of Oscar Grant, for the Bay View and several other Bay Area news organizations. She can be reached at email@example.com.