Paul T. Rosynsky, 10/4/10
The attorney representing former BART police Officer Johannes Mehserle asked a Los Angeles judge for a new trial, arguing, in part, that new evidence discovered after Mehserle was convicted of involuntary manslaughter proves that another officer, under similar circumstances, made the same “tragic mistake” as Mehserle.
In a 134-page filing submitted Friday to Los Angeles Superior Court Judge Robert Perry, defense attorney Michael Rains said a jury’s decision to find Mehserle guilty should be overturned — and a new trial granted — because the jury did not hear evidence about a similar case which occurred in Kentucky less than a year before his client killed Oscar Grant III.
In that case, Rains wrote, an officer mistook his gun for his Taser even though his Taser was located on the opposite side of his body and was bright yellow. That officer was not found criminally negligent for critically wounding a man he shot in the back, Rains said.
A Los Angeles jury found Mehserle guilty of involuntary manslaughter in July, saying, in essence, that they believed the officer, who had been on the force for 2½ years, made a mistake when he pulled out his gun instead of his Taser and shot Grant in the back.
The killing occurred Jan. 1, 2009, on the Fruitvale BART station platform. Dozens of passengers watched and recorded Mehserle and other BART officers attempting to detain Grant and three friends who were being held after a fight broke out on a train.
Mehserle testified during the trial that he had intended to use his Taser on Grant because Grant was resisting arrest but mistakenly pulled out his gun and shot the 22-year-old Hayward man.
Former Alameda County District Attorney Tom Orloff charged Mehserle with murder, saying the officer intended to shoot Grant and came up with a story about confusing his weapons to avoid a conviction.
After a trial of more than three weeks in Los Angeles, a jury rejected that theory and found Mehserle guilty of the lesser crime of involuntary manslaughter, leading many law experts to conclude that the jury believed Mehserle’s testimony that he had made a mistake.
However, those experts said, it appeared the jury also believed that Mehserle was criminally negligent in making the mistake and therefore deserved the guilty verdict, which could lead to a prison term of between two and 14 years.
One main contention in the trial was the location of Mehserle’s Taser and gun and the difference in weight and color between the two weapons.
Deputy district attorney David Stein argued throughout the case that Mehserle could not have made a mistake because his gun was black, heavier and carried on the opposite side of his body than his Taser, held in a holster that required at least three separate movements to remove the weapon.
Although Rains provided evidence during the trial that six other officers had mistaken their guns for Tasers in past cases, Stein pointed out that in all six cases, the officers had their Tasers located on the same side of their body as their gun.
In addition, Stein pointed out that never had an officer mistaken a gun for a Taser when the Taser was located where Mehserle had his: on the opposite side of his body than his gun.
While the jury rejected Stein’s argument that Mehserle intended to use his gun, Rains argued in his filings that the jury found Mehserle guilty of involuntary manslaughter because Stein effectively proved, based on the evidence available, that Mehserle’s actions were “so extraordinarily unlikely because of the color, weight and holster configuration of Mehserle’s Taser.”
But had the jury been presented with evidence that another officer with the same equipment as Mehserle made the same mistake, Rains argued, the jury might have found that Mehserle’s actions were not criminally negligent.
“Most importantly, of course, having heard (the new evidence), the DA would be precluded from making the enormously effective point during rebuttal argument that ‘In almost a million or more instances of Tasers being fired, this has never happened. Never happened.'” Rains wrote in his filing. “Can this Court say with any confidence that at such a trial, not one juror would probably vote to acquit?”
A spokesperson for Alameda County District Attorney Nancy O’Malley declined to comment Monday. Prosecutors are expected to file a response in the coming weeks.
“We are asking the judge to exercise a great deal of fortitude,” Rains said Monday. “Judges typically do not like to disrupt jury verdicts and in this case it is more so because of the history “… but what happens to the legal system if judges are more concerned about the reaction? It means the mob has won.”
While the introduction of new evidence is not the only reason Rains argues his client deserves a new trial, it is the one argument that has not been made in the past.
Rains also argues in his filing that the court should grant a new trial because it erred in its instructions to the jury about various aspects of the case and refused to allow Rains to present evidence about Grant’s past criminal behavior, including the fact that he once was arrested with an illegal gun.
Rains also argues that the jury’s finding that Mehserle was guilty of a gun enhancement should be overturned because it is not consistent with the involuntary manslaughter conviction. In that decision, the jury found to be true an allegation that in shooting Grant, Mehserle “intentionally used a gun.” A decision on the gun enhancement is crucial to the case because should Perry overturn the allegation, Mehserle’s punishment could be drastically reduced.
Rains said in his filings that the jury’s decision on the gun enhancement shows that it was confused about what the enhancement was intended for. That confusion, he said, was caused by the court mistakenly allowing the jury to consider the enhancement even if it came to an involuntary manslaughter conviction.
“There is no logical way to square the jury’s rejection of murder and voluntary manslaughter charges with its finding of true on the enhancement,” Rains wrote. “Most likely, the illogical ‘true’ finding on the gun enhancement “… is the result of an instructional error that amounted to a deprivation of Mehserle’s due process rights.”
Perry will hear arguments on Rains’ motion Nov. 5 in Los Angeles, when Mehserle is scheduled to be sentenced.
