Paul T. Rosynsky
Almost every witness who either recorded video of or saw former BART police Officer Johannes Mehserle fatally shooting Oscar Grant III in the back testified last week that Mehserle looked surprised after he pulled the trigger of his gun.
Most of the witnesses said Mehserle immediately re-holstered the gun after firing, put his hands to his head and looked “shocked,” “dumbfounded” and “stunned.”
Even Carlos Reyes, a friend of Grant’s who sat about 2 feet away from the 22-year-old Hayward man when he was shot, said Mehserle appeared shocked and shouted, “Oh (expletive), oh God, I shot him,” after the bullet entered Grant’s back, causing his death hours later.
The testimony gave credence to defense attorney Michael Rains’ argument that Mehserle never intended to use his gun on the Fruitvale BART station platform in Oakland, but instead tragically mistook the lethal weapon for his Taser when he pulled the trigger, attorneys following the case said.
“That bodes well for the defense because it corroborates, at a certain level, what the defense is, that this was an accident,” said Michael Cardoza, a Northern California attorney. “You’re not going to get around that testimony. The question is, What impact is it going to have on the jury? What weight will the jury give to it?”
To be fair, the testimony came during the first week of what is likely to be a monthlong trial and before Deputy District Attorney David Stein called other former BART police officers to the witness stand to explain why they acted aggressively toward Grant and his friends.
The testimony also came from witnesses who said most BART police officers on the Fruitvale platform early Jan. 1, 2009, were using excessive force against Grant and his friends. They all also said that Grant and his friends never resisted arrest or tried to strike the officers.
Also, Stein has not yet called a BART police official who is expected to testify that in the hours that the official sat with Mehserle after the shooting, the then-26-year-old BART officer never said he made a mistake.
Nevertheless, the brief glimpses of Mehserle after the shooting that were captured by video and described by passengers most likely will become the pivotal evidence for Rains as he tries to win acquittal for his client.
“It means a lot,” said Jim Hammer, a former San Francisco homicide prosecutor and now a private attorney. “The most difficult statements and reactions that are the hardest to argue against are those that happen immediately after the event.”
Hammer said juries are more likely to believe the actions and statements a defendant makes in the immediate aftermath of a crime because, at that time, the defendant had not had a chance to think of an excuse.
“What happens immediately after an event is the best example of what is in their state of mind,” Hammer said.
Stein is expected to argue that Mehserle’s reactions were a result of his quickly realizing that he should not have shot Grant. Stein still could argue that Mehserle intended to kill Grant but realized that was the wrong choice after shooting him.
Rains, of course, will argue that the reaction proves that Mehserle never intended to use his gun and was shocked when he pulled the trigger and a bullet fired from a gun rather than two electrically charged darts from a Taser.
Whatever explanation a jury deems reasonable could play a large role in determining the outcome of the trial, attorneys said.
At this point, Cardoza said, it would be hard to believe that the jury thinks Mehserle’s reactions came as a result of his realizing that he should not have fired his gun.
“I don’t think that is a reasonable explanation,” Cardoza said. “To believe that, you would have to believe that Mehserle was in a stupor before he shot.”
If the jury does believe both interpretations of Mehserle’s reactions are reasonable, the law states that it must side with the defense’s explanation.
“You can interpret every reaction in a number of ways, and the question is, What is the most reasonable explanation?” Hammer said. “If there are two possible explanations, and the jury considers both reasonable, it must give the defense the benefit of doubt.”
Both attorneys cautioned, however, that the trial has just begun and that other evidence presented in the next three weeks, including possible testimony from Mehserle, could lessen the impact of the witnesses’ recounting of the former officer’s reactions.
“This is not a slam dunk on either side right now,” Hammer said. “All the other stuff, the police aggressiveness, shows that there was no reason to do anything that the officers did.
“It’s a tough case, and that is why we have trials and why we have juries.”