Demian Bulwa
04/29/10
The attorney for Johannes Mehserle, the former BART police officer who shot and killed an unarmed train rider last year, is asking the judge in his client’s upcoming trial in Los Angeles to give jurors an all-or-nothing option – convict Mehserle of second-degree murder or acquit him.
The former officer’s lawyer, Michael Rains, says Mehserle meant to shock Oscar Grant with a Taser and accidentally fired his service pistol into the 22-year-old Hayward man’s back while trying to handcuff him at Oakland’s Fruitvale Station early Jan. 1, 2009.
Under the defense request – which Rains made in a recent court filing and is opposed by the prosecution – jurors would not consider first-degree murder or lesser crimes associated with a homicide.
First-degree murder typically requires premeditation, while second-degree murder does not. The maximum sentence for first-degree murder is 25 years to life, while for second-degree it is 15 years to life.
Rains argues that the facts of the case wouldn’t support a conviction for voluntary manslaughter, which generally refers to an unlawful killing in the heat of passion; or involuntary manslaughter, a killing in the commission of a misdemeanor or infraction.
If manslaughter charges are off the table, “the upside for the defense is, the chance of an acquittal or a hung jury goes up,” said Jim Hammer, a former San Francisco prosecutor who now sits on the city’s Police Commission. “The downside is they might be walking their client into a murder conviction – whereas, if manslaughter was on the table, the jury might have picked that as a compromise.”
The court filing by Mehserle’s team underscores how heavily the defense is relying on its contention that the 28-year-old former officer mistakenly drew his gun – a defense that prosecutors and two Alameda County judges have called a fabrication unsupported by evidence.
“Mehserle will make no self-defense argument,” Rains says in the filing. He says the jury could convict on second-degree murder if it “concludes Mehserle actually intended to use his gun, and did so with conscious disregard of the danger to Grant’s life.”
Mehserle’s trial was moved to Los Angeles after an Alameda County judge concluded that the former officer could not receive a fair trial in the East Bay. Jury selection is scheduled to begin in June.
