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BART cop gets away with murder
Posted by Dand124 on Fri Nov 5 20:18:40 2010http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/11/05/BA061G7HVS.DTL
A judge sentenced former BART police Officer Johannes Mehserle today to the minimum term of two years in state prison for fatally shooting unarmed train rider Oscar Grant during a video-recorded arrest in Oakland on Jan. 1, 2009.
A jury in Los Angeles County, where the trial was moved, found Mehserle guilty of involuntary manslaughter in July, acquitting him of the more serious charges of murder and voluntary manslaughter. Mehserle testified that he killed Grant accidentally, after mistaking his service pistol and his Taser.
The verdict meant that jurors concluded that Mehserle, 28, did not intend to kill Grant, 22, when he shot him in the back at Fruitvale Station, but acted negligently and took his life unlawfully.
The jury also found that Mehserle, a Napa County resident, had used a gun during the crime. However, Judge Robert Perry threw out the gun conviction today, saying it was not supported by the evidence, and gave Mehserle two years for the involuntary manslaughter conviction, the shortest term possible.
The judge said he believed Mehserle when the former officer testified during the trial that the shooting had been an accident.
With credit for time he has already served behind bars, Mehserle will be eligible for release in about seven months.
The judge's decision infuriated members of Grant's family, some of whom left the downtown Los Angeles courtroom in tears. Grant's mother, Wanda Johnson, and Sophina Mesa, the mother of Grant's 6-year-old daughter, stalked out before Perry finished his remarks.
John Burris, an attorney for Grant's family, said at a news conference afterward that the message to African Americans in the Mehserle case is that "your life ... can be taken from you with no just cause and no price to pay." Mehserle is white, while Grant was black.
Cephus Johnson, an uncle of Grant's, said angrily, "I knew what the judge was going to say even before he said it. This whole thing was argued before we got here today."
Mehserle, wearing an orange jail suit and his hands manacled, showed no reaction to the sentence. Some of his relatives in the gallery cried.
In remarks to the court before sentencing, Mehserle said, "I did not become an officer to take a life, but because it gave me the opportunity to protect and save lives. I pray the public can understand that police officers are also human."
He added, "I am deeply sorry. I am. ... Nothing I can ever do will heal the wound I have created."
In his sentencing remarks, Perry made it plain that he saw the case more in the light of how the defense had portrayed it than from the prosecution's point of view.
He said Grant was resisting BART police after being detained at the Fruitvale Station for allegedly fighting on a train. The judge said that when he moved to arrest Grant, Mehserle clearly intended to grab his Taser shock weapon instead of his gun.
Testimony during the trial showed that Mehserle had announced he was going to use the Taser, the judge noted. He quoted the testimony of one of Grant's friends, who said that after Mehserle fired a single shot into Grant's back, he said, "Oh s-, oh s-, I shot him."
"Mehserle's muscle memory took over in this moment of great danger and stress," Perry said. "No reasonable trier of fact could have concluded that Mehserle intentionally fired his gun."
Alameda County District Attorney Nancy O'Malley noted that Perry's rulings today were appealable. Her office "will now evaluate all legal options," she said in a statement.
Mehserle's possible sentence for involuntary manslaughter was two, three or four years, plus three, four or 10 years for the gun enhancement. The defense pushed for Mehserle's release on probation, which state law allows in involuntary manslaughter cases that are considered unusual.
The two sides had disagreed on what the jury signaled with its verdict. The defense said jurors showed they believed Mehserle's Taser story when they rejected murder and voluntary manslaughter, both of which require an intent to kill.
Prosecutors disagreed. They said jurors had found that Mehserle did not intend to kill Grant, but that he had meant to shoot him. The gun enhancement, prosecutors noted, required the panel to find that Mehserle had fired a gun on purpose.
Defense attorneys believe the jury misapplied the gun enhancement after it was poorly explained to them.
During trial, prosecutor David Stein said Mehserle had "lost all control" of his emotions before the shooting. The defense said he had made a mistake under pressure and cast blame on poor training at BART - particularly on the agency's Taser training, which Mehserle received a month before the shooting - and on the character of Grant, who had spent time in prison.
Grant had been detained at about 2 a.m. that New Year's Day, along with four friends, for fighting on a Dublin-Pleasanton train. Within minutes, Mehserle's then-colleague on the BART force, Anthony Pirone, reported that Grant had resisted him and ordered his arrest. Stein argued that the arrest itself was unlawful because Grant had cooperated.
Mehserle then moved to handcuff Grant as he lay on his chest, but struggled to pull back the Hayward man's right arm before standing up and pulling out his pistol.
Taking the stand near the end of the trial, Mehserle testified that he had decided to use his Taser because he saw Grant put his right hand in his pants pocket and believed he might be reaching for a gun.
Mehserle said he had accidentally pulled out his pistol and fired before realizing he had grabbed the wrong weapon.
Mehserle's shooting of Grant was witnessed by scores of New Year's revelers, several of whom recorded it on cell-phone cameras.
The trial was moved to Los Angeles in an effort to find impartial jurors. In the Bay Area, many community leaders, activists and others saw the shooting as a window into a larger problem of police officers abusing people of color with little accountability.
Today's sentencing "will have a detrimental impact on the relationship between the police and the African American community," said Burris, the Grant family attorney. "It only says there is no bridge here."
The sentencing is not the final word on Grant's death. The U.S. Justice Department has said that its civil rights division, along with the U.S. attorney's office and the FBI, will investigate the shooting "to determine whether the evidence warrants federal prosecution."
Pirone and his partner the night of the shooting, Marysol Domenici, were fired earlier this year by BART - Pirone for his actions on the train platform and Domenici for the way she reported the incident to investigators. Their appeals are pending.
BART agreed in January to pay $1.5 million in a civil settlement to Grant's daughter, Tatiana Grant. But Grant's mother, along with several of his friends who were with him when he was shot, still have pending lawsuits that may go to trial.