By Demian Bulwa
San Francisco Chronicle
OAKLAND, Calif. — Former BART police Officer Johannes Mehserle was distraught but silent after he shot an unarmed passenger to death early New Year’s Day, his partner testified Wednesday.
“When I looked at Officer Mehserle, his forehead was extremely sweaty, his face was flushed and his eyes were big,” Officer Jon Woffinden testified at Mehserle’s preliminary hearing on a murder charge. “He didn’t say anything. ... I told him that he needed to take a walk.”
Woffinden’s testimony came at the end of a first day of appearances by defense witnesses in a hearing that has been dominated by video footage of the shooting. The defense hopes the officer’s account will bolster its argument that Mehserle meant to stun 22-year-old Oscar Grant with a Taser when he fired his pistol on the platform of Oakland’s Fruitvale Station.
Grant’s family members did not see it that way. Mehserle’s reaction, far from supporting the Taser defense, damages it, an attorney for the family said.
“If Mehserle had made a mistake, the first thing he would have done is told his partner, ‘I made a mistake.’ ” said the attorney, John Burris. The officer’s silence during the exchange, Burris said, “speaks volumes.”
Reports by police investigators show that Mehserle, 27, told two other officers after the shooting that he thought Grant had a gun, and that he did not mention his Taser.
Woffinden appeared after Mehserle’s attorney, Michael Rains, laid out the defense’s case for the first time to Superior Court Judge C. Don Clay, who must decide whether to send the case to jury trial. Rains said his goal was to have the murder charge reduced or tossed out.
“This is not a murder because there is no malice, and there’s no malice because Mr. Mehserle didn’t intend to use his firearm,” Rains said. He said the use of a Taser would have been proper because “Mr. Grant was actively, actively, actively resisting arrest.”
Prosecutors disagree, and called five witnesses this week who said they had not seen Grant resist Mehserle or any of the other six officers who responded to reports of a fight aboard a train that had pulled into Fruitvale Station. Mehserle shot Grant while trying to handcuff him as Grant lay face-down.
Mehserle, who is free on $3 million bail, resigned from BART after the shooting rather than answer questions from internal affairs investigators. Woffinden, like the other officers who were on the platform, remains on paid leave.
Woffinden said the shooting happened during a hectic scene that he described as one of the most frightening in his 11-year law enforcement career - an assertion that prosecutor David Stein suggested was overstated.
Woffinden said he had been scared even as he and Mehserle drove to Fruitvale Station, because of yelling that he heard when the radio call came in. As the officers sped along Interstate 880, Woffinden said, he had a “moment of reflection.”
“Frankly,” he said, “I thought of my wife and kids.”
Woffinden said he and Mehserle had arrived after other officers detained Grant and four of his friends and put them against a wall. He said he had provided crowd control as a second group of young men yelled profanities at officers and acted in a threatening way.
At one point, he said, one of Grant’s friends threw a cell phone at him.
“We were severely outnumbered,” Woffinden said, referring to the hundreds of people who were on the BART train that had stopped. Woffinden said he had to get out his baton, curse at times to get people’s attention, and threaten to strike a man who “advanced” toward him.
On cross-examination, Stein played video footage of the shooting and suggested it revealed a situation that was less chaotic than Woffinden described. Woffinden admitted that he hadn’t pressed an emergency button that would have requested immediate backup, nor had any of the other officers.
“It’s a classic police argument to suggest people were combative,” Burris said. “What’s on the tapes that supports that?”
Also Wednesday, a man who was on Grant’s BART train with his wife and two children provided a detailed account of the fight that brought Mehserle and the other officers to the scene.
One of Grant’s friends had described it as a scuffle between Grant and another man. But Dennis Zafiratos said Wednesday that as many as a dozen people had pushed, shoved and thrown punches.
Another defense witness who was on the train, Alika Rogers, said Grant and his friends had been “mouthing off” to officers after they were detained and that, at the same time, some members of the crowd on the platform looked like they were going to riot.
Rogers said she had seen Mehserle put Grant on his chest and then struggle to handcuff him and “get him into position.” Mehserle and Officer Tony Pirone, she said, “were both trying to get him down and to hold still.”
Rogers said she had seen the gun go off before Mehserle raised his hands to his head and mouthed the words, “Oh my God. Oh my God.”
Copyright 2009 San Francisco Chronicle