Demian Bulwa, 11/17/10
As he sentenced former BART police Officer Johannes Mehserle to two years in prison for involuntary manslaughter, Judge Robert Perry delivered unusually lengthy and detailed remarks. He laid out his view of the trial’s evidence, siding largely with the defense, and explained why he had to — in the interest of justice — throw out a separate allegation that Mehserle intentionally fired a gun at unarmed rider Oscar Grant during an arrest at Fruitvale Station in Oakland on Jan. 1, 2009.
Perry’s comments Nov. 5 in Los Angeles County Superior Court suggest he was concerned about how the public would receive his ruling. They elated defense attorneys, who saw them as vindicating not only their position that the shooting was an accident, but their view that the Alameda County district attorney’s office had overstepped and had given in to protesters and rioters when it sought a murder conviction.
The remarks stunned prosecutors and Grant’s relatives. They were particularly upset at Perry’s assertion that Grant had been resisting officers when he was shot, and at his statement that “no reasonable trier of fact” could agree with prosecutors that the shooting was intentional and not the result of Mehserle confusing his gun and Taser. Some of Grant’s family members walked out of court as Perry spoke.
The following are several excerpts from a transcript of Perry’s comments. The judge started by saying Grant had done nothing to warrant being killed and that the shooting was a tragedy for all involved:
One man’s life was needlessly taken, a second man’s life and career were devastated. Nothing this court can do or say can remedy the harm that came from that tragic incident. Nothing I can do will restore Oscar Grant to his family and loved ones. Nothing I can do will restore Johannes Mehserle to the life he led before those fateful few minutes on that platform.
Perry went on to lament that the case of a white police officer shooting a black man had polarized the community:
One thing I well understand, people see what they want to see and they hear what they want to hear in situations like this. Some people will see this case as the cold-blooded murder of a young man by a police officer. Others will see the case as the prosecution and conviction of a totally innocent man who made a tragic mistake. Nothing I do today will change those opinions.
According to Perry, though, race was not a factor in the case. Some critics of the police believe Grant would not have been shot, or even detained, if he were not black. Video footage showed that, just before the shooting, a second BART officer, Anthony Pirone, taunted Grant by shouting, “Bitch-ass n–, right?” But the defense said there was no evidence Mehserle heard him.
Oscar Grant was an African American. The defendant, Johannes Mehserle, is white. The court is well aware of the shameful history of racial injustice in this country. Well aware. But I can tell you I cannot and will not permit considerations of race to impact or influence my ruling, because I believe based on the evidence this was not a case about race. I do not believe based on the evidence the defendant was influenced by race.
Perry rejected prosecutor David Stein’s assertion that the jury had signaled it did not believe Mehserle’s Taser story by convicting him of a gun enhancement, which is defined as a suspect firing a gun intentionally:
It’s the court’s view that the jury found that Mehserle intended to draw his Taser and instead drew the gun. That is the only reasonable interpretation that I see in the verdicts in this case. Had the jury believed that Mehserle intended to shoot Grant, they would have returned a verdict for either murder or voluntary manslaughter.
Later, he added:
The district attorney argues that the jury could have found that Mehserle intended to use his firearm but did not intend to kill, that he did not consciously disregard risk to life when he fired into Grant’s back. I don’t think there’s any basis in the evidence for that suggestion and I think it’s — it strains credulity. Mehserle shot directly into Grant’s back from the distance of four feet. It is inconceivable that shooting someone in the back from that distance evidences anything other than a clear intent to kill.
Perry then went into great detail to explain why the shooting must have been an accident. One factor he cited was that Mehserle had no good reason to shoot Grant — which was precisely why prosecutors said the ex-officer should face harsh punishment.
Pirone was virtually in the line of fire. That is suggestive that this was an accident. Mehserle was on the platform for a very brief period, a matter of slightly more than two minutes, before pulling his gun and shooting Grant. He was not threatened by Grant, he had no reason to pull his gun and shoot Grant. Mehserle had absolutely no motive to shoot Grant. He didn’t know Grant and had never interacted with Grant before. Of great significance in the court’s ruling is that Mehserle announced he was going to Tase Grant. This statement was corroborated by Pirone and (Grant’s friend) Jackie Bryson. Mehserle stood to gain distance, which would be required for the shooting of a Taser to be effective. It would not have been required to fire a gun. Mehserle fired once, which is consistent with shooting a Taser and inconsistent with firearm training, which says if you’re going to shoot, you shoot more than once — you double or triple tap is the phrase used. Mehserle pulled on his service revolver in a manner suggestive of trying to pull out a Taser. He was pushing in. It took him several efforts to pull the gun. After the shooting his hands immediately went to his head in obvious shock and surprise. This is again inconsistent with an intention to shoot. (Grant’s friend Carlos) Reyes heard Mehserle say, “Oh, s–. Oh, s–. I shot him.” Again, further evidence that this was an unintentional shooting.
Perry said Mehserle had been justified in using a Taser on Grant because, he said, Grant was not complying with the officer’s effort to handcuff him. Prosecutors had argued that using any weapon on Grant was excessive because he was unarmed and on his chest, pinned under two officers.
Mr. Grant was resisting. I make that statement based on the video evidence and the autopsy evidence, which shows the shot entered on Grant’s side indicating he was rolling in an upward manner … Grant held his hand under his body with such force that a prosecution witness observing from the train remarked to a friend that Grant must be very strong.
Perry said he gave “little weight” to one of the prosecution’s prime arguments — that if Mehserle had killed Grant accidentally, he would have said as much to one of his colleagues:
Much has been made by the district attorney that Mehserle did not say it was an accident and that he told Pirone he thought Grant was going for a gun immediately after the shooting. It is argued that Mehserle was intentionally lying to cover up his crime. It is further argued that Mehserle’s failure to tell his support officer hours after the shooting that it was an accident is further evidence that he intended to shoot Grant. Based on my review of the evidence, I reject these arguments. It is clear from the video that immediately following the shooting, Mehserle acted in an obvious physical manner that can only be characterized as shock and dismay. His hands went to his head in apparent disbelief of what had happened. I accept his testimony that he did not know how he had come to have shot Grant and that he was in shock following the shooting. In the court’s experience, individuals react differently to stress. I place little weight on Mehserle’s statements immediately following the event.
Perry agreed with the defense that the atmosphere at Fruitvale Station was chaotic. Prosecutors had argued that Mehserle’s colleagues had exaggerated the situation while on the witness stand:
The noise on the platform was extraordinarily loud and the situation was a near riot when Mehserle came on the scene.
Finally, Perry concluded that “no reasonable trier of fact” could have found the shooting was intentional. It was a strong statement. Although they did not hear all the evidence, two Alameda County judges said last year that the Taser story was made up, one after a bail hearing and one after a preliminary hearing:
Having considered all the evidence and weighed it in a light in favor of finding the allegation to be true, the court finds that no reasonable trier of fact could have concluded that Mehserle intended to fire his gun. … The evidence that Mehserle intentionally used his firearm was so clearly insufficient that the gun enhancement allegation should be dismissed.
As he decided whether to give Mehserle two, three or four years for involuntary manslaughter, Perry found a number of reasons to choose the low term. He referred to a fight on a train that Grant had been in before his arrest and to Pirone’s aggressive detainment of Grant and four friends before the shooting:
Many persons contributed to the tragedy that occurred in this case. The persons who fought on the train. Had there been no fight, I doubt that we would be here. (Grant’s friend Michael) Greer got back on the train and disobeyed Pirone. Pirone’s coarse and aggressive conduct as to Greer and the other detainees incited the crowd. The members of the crowd added to the tension of the situation by creating a near riot. All of this occurred before Mehserle even came to the scene. All of these people share some responsibility for setting the stage for this tragedy. BART contributed as well by setting Mehserle up for failure due to inadequate Taser training.
Perry said he was mindful of concerns by law enforcement that a prison sentence for Mehserle could send a “negative message to officers who daily risk their lives to protect law-abiding citizens.” But he went on:
The court is aware of all mitigating circumstances in this case. Mehserle is not an aggressive person. No prior record. Good work history. Loving and supportive family. No likelihood of reoffending. I accept all these reasons. The district attorney claims there was no remorse. I see tons of remorse in this case. But when I consider sentencing as the probation department has observed, I must remember that a young man needlessly died. I believe prison is appropriate.
Finally, Perry wrapped up his remarks with another nod to the intense feelings the case had provoked:
We started this case with me saying I did not volunteer for this assignment. I did the best I could with this case. I well understand my decisions today will not be well received by many people and I’m sorry for that, but all I can say is I did my best.
