Paul T. Rosynsky
06/01/10
Attorney John Burris will not be a witness in the murder trial against former BART police Officer Johannes Mehserle, but he was banned from talking to the media about the case, a judge decided Tuesday.
Los Angeles Superior Court Judge Robert Perry said Burris should be under a gag order in the case because he represents people who will be called to testify and his statements outside court could create a “sideshow” to the criminal proceedings.
“I really don’t think he should be out there talking to the press,” Perry said. “The last thing I want is issues of public pronouncements that might impact the jury. We are trying to avoid sideshows in this trial.”
Perry extended the gag order to lawyers representing BART in civil lawsuits filed by Burris in connection with the Jan. 1, 2009, killing of Oscar Grant III on the Fruitvale BART station platform.
Perry issued the gag order on Burris as he was considering a request by Mehserle’s attorney to have Burris placed on the witness list because of statements he made during a news conference earlier this year.
During that news conference, called by Burris to chide BART for its leaking of information about a $1.5 million settlement, the Oakland attorney said that Grant’s friends have been threatened because they gave statements that they heard Mehserle say he was going to use a Taser on Grant just before he shot the 22-year-old from Hayward.
Mehserle’s attorney, Michael Rains, argued that Burris should be a witness in the trial in case Grant’s friends refused to make similar statements during the murder trial. Rains said Burris would be needed to explain to a jury why the friends had changed their stories.
But Perry said that he did not anticipate Grant’s friends lying on the witness stand and said if they did, Burris could testify. However, he said, he would not place Burris on the witness list because that would ban him from the courtroom during the trial.
“I don’t think it will be a big issue to have Mr. Burris in the courtroom,” Perry said.
While Perry’s gag order on Burris irritated Grant’s family, they said they were more concerned with another ruling the judge made Tuesday allowing the defense to place a video expert on the witness stand.
That expert, Michael Schott, will testify during the trial about images viewed in several recordings of the shooting and the events before and after it. In testifying about those images, Schott will tell the jury what he can see from a close analysis of all the videos together.
And what Schott could see, he told the judge Tuesday, is that Grant and one of his friends tried to punch BART police officers on two separate occasions before the shooting occurred.
In one shot, Schott said, Grant’s friend Jackie Bryson appears to being trying to take a swing at former BART police Officer Tony Pirone. In another, Schott said, it appears Grant attempts to punch Mehserle.
Alameda County deputy district attorney David Stein argued against allowing Schott to give his opinion about what is seen in the videos. Stein said the jurors should be able to interpret the actions in the video themselves.
But Perry said that Schott’s testimony will be helpful to clear up ambiguities in the video that cannot be seen unless pointed out by someone who has developed a way to view the videos frame by frame.
“I found his testimony to be very helpful. I’m going to allow him to testify, I’m going to allow him to opine about the interpretations,” Perry said. “His analysis is reasonable, he did not go overboard.
“I just felt that he added a lot; it showed us things I think would be very difficult for a layperson to see,” Perry said.
Outside court, Grant’s uncle and mother said they were disappointed with the ruling.
“Rains has created a lot of distractions from the issue here,” said Cephus Johnson, Grant’s uncle. “The issue is that Oscar was shot in the back with his arms behind his back.”
Johnson said he was concerned that Perry continues to give small victories in court to the defense.
In addition to allowing the video expert to testify, Perry ruled last month that the jury can learn limited aspects of Grant’s criminal past including an incident in 2007 in which he resisted arrest.
“It appears that we have been getting a lot of disadvantages,” Johnson said.
Wanda Johnson, Grant’s mother, said allowing the video expert to give his own opinion about what is in the video is unfair to the jury.
“The video is what it is, it doesn’t change,” she said.
