Rains Lucia Stern, PC
On April 23rd, Mike Rains appeared as the lead speaker at the 7th Annual Detective Symposium sponsored by POST and the Robert Presley Institute for Criminal Investigation (ICI). The event was held at the Sheraton Universal Hotel in Los Angeles, and was organized by the Los Angeles Police Department and its Training Division. Mike’s presentation, which followed opening remarks by Los Angeles District Attorney Steve Cooley, was heard by 600 of California’s major crimes investigators.
Although the focal point of Mike’s presentation was a discussion of the evidentiary, procedural and media relations issues surrounding the prosecution of former BART Police Officer Johannes Mehserle for murder, Mike also spoke about important issues relating to the investigation of officer-involved shootings. Some of the issues that were central in the Mehserle case and that are present in virtually every officer-involved shooting include the following:
• Is there videotape evidence of the incident, and if so, how should it be gathered and analyzed, and thereafter presented effectively for trial or other evidentiary purposes?
• If the officer-involved shooting generates controversy and widespread media coverage, what role should the officer’s employer play in discussing the case with the media, and what role should the officer’s attorney play in a high visibility/media case?
• Should an officer customarily give a “voluntary” statement to the criminal investigators in the immediate aftermath of an officer-involved shooting or decline to do so?
• If there is video evidence of an officer-involved shooting, should the officer be allowed to view it before he/she gives an interview statement?
• In a case where there is both video evidence and forensic evidence developed during an autopsy, does the analysis of the video evidence coincide with projectile evidence described in the autopsy report?
• What is the best way to analyze several or numerous video images of the same event which may have been taken at differing frame rates and yet show the event from different angles?
• What are the factors which will result in a high visibility police case (such as the Mehserle case) being tried in a venue other than that in which the incident occurred?
During the presentation, Mike showed some of the six different videos which captured
the fatal shooting of Oscar Grant by Officer Mehserle on January 1, 2009. Later, individual frames of those recordings were shown to the audience which reflected detail not observable when the recordings were played at the standard play back rate of 30 frames per second. The detail included Officer Mehserle struggling to remove his firearm from its holster just seconds before the fatal shooting because he was using thumb movements to remove a taser from its holster. One of the frames showed Mehserle moving his thumb upward along the slide of the firearm (which did not have a safety) immediately after it came out of the holster as if to activate the selector switch on the taser. Additional still frames and slow motion video showed active resistance by Oscar Grant up to the very instant Mehserle fired the single round which proved fatal (in contrast to claims by the prosecution and the media that Grant was laying face down and not resisting when he was shot).
A still frame showing the position of the muzzle of Mehserle’s weapon relative to Oscar
Grant at the instant the shot was fired, when compared to the entry and near exit wound, and the trajectory of the round through the body established Grant’s active resistance and the elevation of his left shoulder and left arm off the ground when the shot was fired.
Mike explained to those in attendance that the fatal shooting of Oscar Grant by Johannes Mehserle was the ninth time a law enforcement officer in the United States or Canada had mistakenly drawn and fired a firearm at a combative suspect while intending to use a taser. In all of those instances, the officer utilized his dominant hand to draw both the firearm and the taser. In all nine of those instances, the officer, after mistakenly drawing a firearm and pointing it at the combative suspect, fired only a single round, believing of course, that he/she was deploying taser darts which would induce neuromuscular incapacitation. In all of those cases, the officer responded and reacted to the mistake by either verbal or visual expressions of surprise, horror and shock.
Each of those instances was characterized by what Dr. Bill Lewinsky described as “slip and capture errors” which can occur when an officer uses the same hand to do two separate actions, and rehearses or practices one of the actions (i.e., drawing a firearm) many more times than the other action (i.e., drawing and firing a taser). When a high-stress, high-threat event occurs to that officer, the brain trips an automatic program which results in the officer’s hand “slipping “ from the desired but less practiced activity, and instead “capturing” the movement and the activity which has been repeated, rehearsed and practiced repetitively. If Mehserle’s case and these other “weapons confusion” cases stand for anything, they should stand for the proposition that officers who carry tasers should repetitively practice the drawing and firing of those weapons with the non-dominant hand, and be mandated by policy to carry them so they must be drawn by the non-dominant hand.
There was a somewhat technical discussion of the video and forensic evidence, and a discussion of complex issues relating to the change of venue motion and Mike’s effort to disqualify the Alameda County District Attorney’s Office from prosecuting the case. The technical and legal issues stood in contrast to the highly emotional discussion of the widespread public condemnation of Mehserle by the media, politicians, academicians, and members of the clergy, while neither Mehserle’s employer nor his then-lawyer offered the public any information to counter the crescendo of claims that Mehserle was a racist and a murderer. The circumstances surrounding his arrest, incarceration, and being held on $3,000.000.00 bail were discussed, along with important evidentiary and legal issues which arose at his trial in downtown Los Angeles, including the defense’s objections to the jury being allowed to consider convicting Mehserle of voluntary or involuntary manslaughter, requested by the prosecution at the end of the murder trial. The audience heard how the trial judge’s laudable efforts to insulate the (anonymous) trial jurors from threats or other extraneous influences outside the downtown courthouse everyday of the trial may have led them to fear both societal and personal consequences if Mehserle was not convicted of something.
It is no small wonder that after hearing 3½ hours of the saga for former BART Police Officer Johannes Mehserle, the audience stood, clapped, cheered, and some cried as Johannes made his way to the front of the room to join Mike on stage and talk about his own experience, and to thank those in the law enforcement community for their continuous and heartfelt support throughout the ordeal.
