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Analysis of the BART cop’s 2-year prison sentence

Defense counsel Mike Rains said after the sentencing that he blames the Alameda County DA for prosecuting an obvious accident as a murder case

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On Friday, November 5, 2010 — two days ago, as this is written — former BART police officer Johannes Mehserle was sentenced to two years in state prison in the wake of his conviction last July for involuntary manslaughter in the January 1, 2009 shooting death of Oscar Grant on a BART train platform in Oakland, California. Involuntary manslaughter in California basically means the death was an accident, but with negligence that makes it a crime.

Many readers will recall the controversial incident and prosecution for first-degree murder — some will remember my earlier article on this, which, if you haven’t read it, will give you some context to this one.

The judge and jury found that Mehserle accidentally drew and fired his handgun when he meant to draw his TASER. Unfortunately, this weapons confusion has been known to have occurred to eight other officers in eight other situations since 2002. Readers of my earlier article will note the details of six of those prior cases. In the months following Mehserle’s conviction, I have learned of two more similar cases.

It is presently expected that Mehserle will spend approximately seven more months in custody, having previously been in custody for a few weeks in early 2009 before he made bail, and having been in continuous custody since his conviction. The conviction will be appealed.

The judge dismissed the controversial California gun enhancement charge for which the jury found Mehserle guilty. The judge stated on the record that he did not provide clear instructions to the jury on the gun-enhancement charge, which requires deliberate use of a firearm during the commission of a crime.

Judge Tosses “Gun Enhancement”
The conviction by the jury on the gun-enhancement charge was a head-scratcher. Clearly, the gun-enhancement law was enacted to give longer sentences to armed robbers and other armed criminals. Why anyone ever thought this law would apply to an on-duty police officer in the course and scope of duty, is an enduring mystery to me and many others. Nevertheless, Alameda County district attorney Nancy O’Malley said that she might appeal the judge’s dismissal of the gun charge.

The United States Department of Justice, Civil Rights Division also announced that it will review the case. However, since a jury convicted Mehserle and he is serving time, it would be an incredible, outlandish (shall we say outrageous?) turn of events if they decided to intervene and try Mehserle in federal court after a judge and jury ruled the matter a tragic accident.

Mehserle, who was dressed in jail clothing and a waist chain, addressed Oscar Grant’s family during the hearing and said, “I want to say how deeply sorry I am. Nothing I could ever say or do could heal the wound I created.” He also apologized to police officers, saying that their job has become harder because of what happened.

During the sentencing hearing, the judge stated that:

• The shooting was an accident that was caused by Mehserle mistakenly drawing his handgun when he meant to draw his TASER
• The trial testimony of two witnesses including a friend of Oscar Grant, indicated that the shooting was an accident, because they heard Mehserle announce that he was going to use his TASER as Oscar Grant continued his resistance to arrest
• After the shot was fired, Mehserle reholstered and immediately put his hands to his head, and his words and body language expressed shock at what had happened
• There was no racial aspect to the case
• Mehserle showed “tons” of remorse for the tragic accident
• “The evidence that this was an accidental shooting and Mehserle did not intend to shoot Grant is simply overwhelming... Mehserle’s muscle memory took over in this moment of great danger and stress. No reasonable trier of fact could have concluded that Mehserle intentionally fired his gun.”

Mehserle’s defense counsel, attorney Mike Rains, said after the sentencing that he blames the Alameda County district attorney’s office for prosecuting an obvious accident as a murder case built on falsehoods. “Frankly, the biggest culprit in setting the community outrage on fire in Oakland has been the district attorney,” Rains told the media.

The fact is that the prosecution team contacted me (with the permission of the defense) early last year, and they contacted at least one other expert (whom I know well), and we told them all the reasons that this case was a tragic accident. Still, they persisted in bringing a murder charge, absent any evidence whatsoever that this was an intentional act, and in the face of plenty of evidence that it was not.

Unconscionable Breach of Ethics
In the past 21 years, I’ve only been involved in about 130 cases as an expert, and occasionally a judge or an attorney or a jury does what I would assess as a weird thing. This case, however, was beyond weird from the get-go. I don’t believe I’ve ever seen a more unconscionable breach of ethics on the part of a prosecutor — if one of you has, please write me. That, combined with the Alameda County judge at the preliminary hearing, who stated in open court, in front of the media, on the record, that there was no doubt in his mind that this was an intentional shooting, make this one of the weirdest. Fortunately because of those types of errant, blatantly political words and acts by the Alameda County prosecutors and the preliminary hearing judge, the trial was moved to another location in a rarely granted change of venue.

Officer Mehserle is white, and Oscar Grant was black. As is unfortunately typical in these tragic cases, Oscar Grant’s family continues to assert that justice has not been done, in view of the difficult history of racism in our country. They assert that this case is one in a long series of unfair outcomes. Despite all evidence to the contrary, some family members continue to assert that this was no accident, and that Mehserle should have been convicted and sentenced for murder. They do not accept his apology and his tears.

But, one must cut some slack to a grieving family. The family’s attorney, John Burris, continues to beat the family’s drum. “What we take from it is that Oscar Grant’s life was essentially not worth very much.” Of course a multi-million dollar lawsuit on behalf of the family is still pending, so we’ll see.

TASER Confusion
As I wrote in my previous article, the fact that this weapons confusion has occurred several times before (nine times that we know of) leads Dr. Bill Lewinski of the Force Science Research Center and me to conclude that it is important to get the strong hand out of the TASER draw equation. All previous incidents have involved a strong-hand draw regardless of holster configuration or placement. No problem transitioning the TASER to the strong hand after the draw.

As some trainers have noted, if you have to “quick-draw” your TASER, you might be reaching for the wrong device for the situation.

Greg Meyer, a retired Captain from the Los Angeles Police Academy, served for 30 years, including eight years as a commanding officer. Greg is a member of the National Advisory Board of the Force Science Research Center, a member of the Police Executive Research Forum (PERF) and the International Association of Chiefs of Police (IACP).
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