By Paul T. Rosynsky
Oakland Tribune
OAKLAND, Calif. — The murder trial against former BART police officer Johannes Mehserle will be moved to another county a judge declared Friday.
Alameda County Superior Court Judge Morris Jacobson informed attorneys late Friday afternoon that the case against Mehserle, in which he is accused of murder in the shooting of an unarmed, 22-year-old Oscar Grant III early New Year’s Day, should occur in another county because the 27-year-old cannot receive a fair trial in Alameda County.
Although Mehserle’s defense attorney Michael Rains focused on what he claimed was a racial divide in the county regarding Mehserle’s guilt in the case, Jacobson’s ruling focused on the repeated protests that have accompanied court actions and the “staggering” volume of media coverage of the shooting and events that followed.
Defense attorneys presented Jacobson with more than 4,000 stories spanning print, radio and television broadcasts related to the Mehserle case since the shooting. Jacobson also cited the numerous protests that have occurred in relation to the case and the death threats that have been made against Mehserle, his attorneys and his family.
“This court knows witnesses in this case are truly frightened by the violence, civil unrest and the death threats that have been directed at anyone in the path of this case,” Jacobson wrote. “Without a doubt, potential jurors have the same fears.”
By having those fears, Jacobson said, there is no way to guarantee that a jury in Alameda County would not be influenced by the potential of violence should they decide a certain way.
“This case may well be a close one and difficult for some or all of the jurors to decide,” Jacobson said. “The jurors will likely be making a difficult decision that could go either way. These jurors will be exposed to protesters’ angry demand for ‘justice for Oscar Grant’ each time they go in and out of the courthouse, a constant reminder of the impending civil unrest.
“These jurors also will be concerned about the real possibility more riots and violence depending on the verdict they choose,” Jacobson wrote.
Jacobson’s ruling was made less than a week after a hearing on a change of venue in the case concluded with prosecutors arguing that Alameda County is large enough to find impartial jurors and defense attorneys arguing that media coverage of the case has made it impossible to find residents who have not formed an opinion on the case.
Jacobson agreed that the county’s size, the seventh largest county in the state with 1.5 million residents, factors against a change of venue but said the media coverage and threat of violence far outweighs the size.
“Here, despite Alameda County’s large size and metropolitan nature, the court is not confident that this factor has overcome the avalanche of pretrial publicity or the intensity of the community outrage,” Jacobson wrote.
In making his decision, Jacobson had to consider six factors: media coverage, nature and gravity of offense, size of community, status of victim and defendant before the crime, politics surrounding the crime and possibility of violence during and after the trial.
Only one factor, the size of the county, could be used to support a denial of a change of venue Jacobson wrote but even that factor did not rise to the level needed to keep the trial in Alameda County.
“In conclusion, all of the above factors favor a change of venue save one, the size and nature of this County,” Jacobson wrote. “That factor, alone, does not persuade the court.”
Despite ruling in favor of Rains’ argument for a change of venue, Jacobson spent some time discrediting an expert witness Rains used and chastising the defense attorney for trying to claim a racial bias in the case.
Rains claimed in his motion for a change of venue that a racial divide in the county would force him to question black jurors separately from jurors of other races to ensure they would not be biased against his client.
Jacobson rejected Rains’ claims.
“Nothing in defendant’s evidence or arguments in this motion justifies violating the State or United States Constitutions in regard to jury selection,” Jacobson wrote. “The prosecution is entirely correct on this issue ' ... to single out African-American jurors for this treatment is unwarranted, unprecedented and inappropriate.’”
Jacobson also questioned the credibility of Craig New, a jury consultant hired by Rains to speak about a survey conducted by another expert.
“The opinions by the defense experts are troubling,” Jacobson wrote. “Both experts eagerly parrot the defense view.”
Where the trial will be held will now be decided by Jacobson with help from the state Administrative Office of the Courts and after a hearing with prosecutors and defense attorneys.
Within two weeks, Jacobson should be supplied with a list of at most three locations that would “not be unduly burdened by the trial of the case.” The judge would then hold a hearing and consider arguments for each location and then make a decision.
According to court rules, the site chosen must meet a number of factors including similar demographics to Alameda County, availability on the court’s calendar and ability to handle the interest in the case.
“A suitable court site should be able to handle news media, staffing needs and security requirements related to the defendant or others,” the rule states. “Demographic characteristics may also be an important consideration.”
John Burris, a civil rights attorney who is representing Grant’s family and friends in two separate lawsuits against BART in relation to the shooting, speculated Friday that county’s such as Sacramento, Fresno, Los Angeles or San Diego could be considered for locations.
Jacobson did not set a date for a hearing on deciding a new venue for the case and said, for now, a Nov. 2 trial date will remain on the court calendar although the case is not expected to begin by then.
The scene outside Rene C. Davidson Courthouse Friday evening was calm, with only about six protesters showing up to speak out against the change of venue.
Moving Mehserle’s trial would exclude African-Americans and other communities from the jury, said Tania Kappner, a member of the group calling itself By Any Means Necessary. That would make it easier for Mehserle to be acquitted, Kappner said. The trial should stay in Oakland where the shooting happened, Kappner said. “This is an outrage.” Oakland Mayor Ron Dellums urged those upset by the ruling to let justice run its course and to not run amok on city streets.
“I am calling for peace following the ruling of Judge Morris Jacobson to move the trial outside of Alameda County, Dellums said in a prepared statement. “As a city, we have to remember that the wheels of justice remain in motion. Johannes Mehserle will receive due process under the law and justice will be done. I know that there are many in our community who disagree with the decision, believing that justice can be served in this community. However, whether we agree or disagree with the ruling, let us go forward in a civil manner and treat one another with respect.”
Copyright 2009 Oakland Tribune