Demian Bulwa, 11/4/10
A trial was held and a verdict reached. But as a judge prepares to sentence former BART police Officer Johannes Mehserle on Friday for killing an unarmed rider, the prosecution and defense are still fighting over who won the hearts of jurors on the case’s key question.
Prosecutors say Mehserle should be sentenced for intentionally shooting Oscar Grant during an arrest on Jan. 1, 2009, at the Fruitvale Station in Oakland. The defense says he should be sentenced for a tragic accident that occurred when he confused his Taser with his gun.
How Judge Robert Perry resolves the disagreement could mean a difference of several years in state prison for Mehserle, or even prompt a sentence of probation only.
The battle rages four months after Mehserle, 28, was convicted of involuntary manslaughter. As the defense points out in asking for a lenient sentence, jurors acquitted Mehserle of murder and voluntary manslaughter, both of which require an intent to kill.
Prosecutors seeking a longer prison term say that although jurors found that Mehserle did not intend to kill Grant, they did conclude that he intended to shoot him.
Jurors signaled that when they convicted Mehserle of a gun enhancement, the prosecution says, a charge that required the panel to find that the defendant fired a gun on purpose.
Defense attorneys say it is not possible that the jury found that Mehserle intended to shoot Grant from a distance of just a few feet, but not kill him. Their conclusion: The jury believed that the shooting was an accident but misapplied the gun enhancement.
The disagreement is heating up as sentencing nears. On Tuesday, defense attorney Michael Rains said in a court filing that prosecutors’ refusal to concede that the jury believed Mehserle when he testified he didn’t mean to shoot Grant “borders on misconduct” and is part of a “dense fog of avoidance, obfuscation, misdirection and patent falsehoods.”
Prosecutor David Stein said the defense was trying to substitute its judgment for that of the jurors.
“It’s a bit of a mess,” said Laurie Levenson, a Loyola Law School professor who watched parts of the trial, which was moved to Los Angeles from Alameda County because of extensive publicity in the Bay Area about the killing. “We tolerate inconsistent verdicts, but this one is of such great consequence that it might give the judge pause.”
The prime inconsistency involves the gun-enhancement conviction, which could add several years to Mehserle’s sentence.
During the trial, attorneys focused so heavily on the issue of whether Mehserle had committed murder that they never mentioned the gun charge. But while involuntary manslaughter carries a sentence of as much as four years in state prison, the gun crime means as much as 10 years.
“Now it’s the tail wagging the dog,” Levenson said.
Judge Perry has a lot to sort out on the gun question. Not only do the two sides disagree on whether police officers should be punished for using firearms they are required to carry, they differ on something more basic – what jurors were saying when they convicted Mehserle of the gun count.
The jury’s verdict form said only that Mehserle “personally used a firearm … within the meaning of Penal Code Section 12022.5(a).” The shooting was captured on video, and no one contests that point.
But the judge instructed the jurors that the enhancement referred to an intentional firing of a gun. Prosecutors say jurors followed those instructions, concluding that Mehserle lost control and chose to shoot Grant, 22, as the Hayward man lay unarmed on the Fruitvale platform.
Defense attorneys, though, say that when the jurors acquitted Mehserle of murder – agreeing that he did not intend to kill Grant – that meant they believed the former officer when he said he had mistakenly shot Grant while intending to subdue him with a Taser.
According to the defense, jurors clearly ignored or misunderstood the judge’s instructions on the gun enhancement count when they convicted Mehserle of it. They want the gun conviction thrown out.
Jury needed help
Jurors asked about the gun enhancement during deliberations, after getting no input from the lawyers. At 1:20 p.m. on July 8, they sent a note to Perry asking, “What is Penal Code Section 12022.5?”
The judge, with the consent of both sides, replied in a note that the section was “an allegation that the defendant personally used a firearm.”