Prosecutor exploits major credibility issues with Johannes Mehserle defense expert

By Alex A. Alonso
STREETGANGS.COM STAFF WRITER
July 7, 2010 | 7:35 p.m.
updated: July 15, 2010

LOS ANGELES — Monday June 28 marked 12th day of testimony in the Johannes Mehserle trial, the former Bay Area Rapid Transit (BART) officer charged with the murder of Oscar Grant, 22, on the Fruitvale platform in Oakland, California on January 1, 2009. The defense called retired Los Angeles Police Department (LAPD) captain Greg Meyer who has expertise in the use of force and the use of non-lethal weapons, including the TASER, which has become a central theme in this trial. He often advises agencies on use of force issues and has consulted TASER international, the company that manufactures of the most popular non-lethal weapons.

Under direct examination from Michael Rains, Meyer explained the evolution of the TASER from 1974 to a weapon that now physically resembles a firearm. Meyer explained that police agencies requested the design modification because it would be easier to train officers on how to use the TASER since they already had training with their firearm.

Oscar Grant Resisting?
Meyer testified that he believed the arrest of Grant by Anthony Pirone and Mehserle for resisting (148) was a legitimate arrest. Meyer stated that when Grant re-boarded the train along with Michael Greer and Jamil Dewar, before the police ever stated anything to the group, that already constituted the first act of resisting.

Meyer also stated that the force of Anthony Pirone and Johannes Mehserle was not excessive even considering a kick that Pirone landed on Grant’s right side and a punch he threw. He even testified that Grant was resisting arrest when Mehserle could not get control of his right hand, even though there was about 500 lbs of weight on top of him, from Pirone and Mehserle combined, and his right side was partially over the left leg of Carlos Reyes. The coroner revealed that Grant had suffered blunt force trauma to his head that was most like caused by Pirone.

Meyer stated that he came to his conclusion about Oscar Grant resisting over a year ago in March of 2009, and even though there were reports and other evidence that was still being gathered including the preliminary hearing, dozens of depositions, and an independent review that occurred after March 2009. Although Meyer once wrote, “In 20 years of expert witness, I learned not to form an opinion until all the evidence is looked at,” he did precisely that, in forming his opinion when much of the evidence was not even gathered.

Inadequate Training
A significant part of Rain’s defense strategy is to argue that inadequate training led to the confusion that caused Mehserle to draw his firearm rather than his TASER, and Meyer agreed that BART training on the TASER, “could have been better.” Meyer slammed the BART training protocol for not providing trainees with enough scenarios to draw from that did not induce stress to mimic real life situations. He also stated that it was not wise to give trainees multiple options on wearing the TASER and relying on them to figure it out. Since BART did not issue TASERS to every officer, Meyer also stated that each officer should have their own TASER issued to them so that can consistently wear it. This lack of training contributes to TASER confusion according to Meyer. Although BART allowed officers to wear the TASER in multiple configurations that best suits the officer, none of the configurations allowed officers to wear the TASER on their strong side.

Accidents Happen
There have been several cases where officers claimed that they accidentally drew their weapon when they meant to deploy the TASERS and Meyer was drawing on these previous incidents to show how Mehserle made the fatal mistake.

Sacramento, California – On March 10, 2001, Sacramento Police officer Officer Thomas Shrum shot Steven Yount in the left buttock while four officers were trying to subdue and transport him to jail following his arrest for driving under the influence of alcohol (DUI). As Yount, who was handcuffed and in leg restraints, struggled, squirmed and kicked the inside of the police car, Officer Shrum, intending to draw and fire his TASER© gun, instead pulled out and discharged his nine-millimeter pistol. Immediately after the shooting, Shrum exclaimed, “Oh God, I shot, I shot.” Shrum was armed with an M26 TASER at the time and had to be consoled after the shooting and expressed concern about the suspect at the time who survived.

Rochester, Minneapolis – On September 2, 2002 Officer Greg Siem was having trouble subduing a Sudanese refugee, Christopher Atak, who was under arrest for being drunk and disorderly. When Siem pulled out what he thought was his TASER, he in fact pulled out his firearm and shot once into the man’s back puncturing his intestine, colon and gall bladder. Immediately after the shooting, Officer Siem called an ambulance and apologized to Atak who survived the shooting. According to court documents, “Officer Siem attempted to use a reasonable amount of force to detain an individual who was actively resisting arrest…In a tense, uncertain and rapidly evolving situation, there is absolutely nothing excessive about Officer Siem’s actions,” wrote his attorney. This is where Mehserle’s attorney Michael Rain’s apparently formulated their defense, because on multiple occasions throughout the trial, Rains has told the jury that Mehserle’s mistake was a result of a “tense and rapidly evolving situation.” Siem had drawn his TASER from a cargo pocket on his strong side.

Madera, California – On October 27, 2002, a City of Madera police officer who was carrying her black M26 TASER on the strong side, shot and accidentally killed Everardo Torres, 24, who was already handcuffed. Officer Marcy Noriega, said, “I put the fucking TASER on he wrong side,” after she realized she shot the suspect with her firearm. She also stated, “please don’t die, please don’t die,” as Torres was being treated for his wound. Officer Torres had a prior incident in which she confused her TASER and her Glock when she was first issued the M26 model. Witnesses heard officer Noriega warn Torres that she was going to use her TASER if he continued to kick the inside of the patrol car. She wore her M26 TASER on the thigh holster on the same side as Glock semiautomatic pistol bellow her firearm. Also her gun and TASER were both equipped with the red laser sights.

Somerset County, Maryland – On October 20, 2003, Frederick P. Henry was fleeing arrest from Somerset County Deputy Sheriff Robert Purnell when he reached back to unholster his black TASER M26, but then drew and fired his gun at Henry. Purnell claims that he had mistakenly grabbed his Glock .40-caliber handgun when he shot Henry in the elbow. On the scene, Deputy Purnell told Henry and other witnesses that he used the wrong weapon which he had on his strong side.

Kitsap County, Washington – On June 22, 2006, in Navy Yard City, Bremerton, Kitsap County Sheriff Deputy Tiffany Dobbins shot her firearm when she intended to use her TASER that she wore on her strong side. William A. Jones, 32, had been acting delusional in a tree for five hours prior to Deputy Dobbins’ arrival. Jones had been unsuccessfully by another deputy on the scene, but Jones was able to remove the probes and then he climbed higher in the tree. After the failed attempt Deputy Dobbins was verbally requested to deploy her TASER on Jones, and she responded by accidentally shooting Jones once in the leg. Her immediate reaction was “Oh my God, oh my God, what did I do?” Criminal charges were considered by the Office of the Attorney General of Washington but after a lengthy investigation they declined to prosecute Dobbins.

Victoria, British Columbia, Canada – Daniel Hammond, 25, was shot in the abdomen by Constable Mike Miller on September 10, 2005. Hammond had reportedly caused a disturbance outside a restaurant and resisted when police attempted to arrest him. Miller reached for his X26 TASER to subdue Hammond but came up with his Glock and shot Hammond. Miller had been wearing the TASER on his weak side, but after he first pulled out the TASER he returned it to a cargo pocket on his strong side when he was attempting to handcuff Hammond. When Hammond continued to resist, Miller thought he was drawing TASER when he shot Hammond. Interim Police Chief Bill Naughton said the force has since replaced the model of TASER used in 2005 with ones that don’t feel the same as the Glock handgun.

Under cross examination Stein asked Meyer about what he knew of these previous incidents that the defense was relying on to support their case of accidental shooting. Meyer was aware of some of the facts surrounding these incidents, but Stein was able to differentiate between all these incidents and Mehserle’s use of the TASER.

All of the previous cases of TASER confusion stemmed from the officer having the TASER on their strong side at the time of the shooting which was a common theme. Mehserle had worn his TASER holstered on his weak side, the opposite of his firearm when he shot Grant. Additionally the TASERS in the previous six incidents were all black in color and because of that, TASER began to manufacture the TASER is different colors to prevent confusion. Mehserle’s TASER was yellow and Meyer claimed he was unaware the reasons why TASER began to manufacture yellow TASERS.

In the five incidents that occurred in the United States, each officer immediately expressed guilt as a result of their accident, in some cases crying on the scene for the victim. Mehserle expressed no such remorse about a mistake to his partner Jon Woffendin, Anthony Pirone, or to the Commanders and Lieutenants that arrived on the scene. He didn’t hesitate to state that Grant was reaching for a weapon when he shot, but never said anything about an accidental shooting. Grant was not found to be armed.

Under direct examination, Meyer said that the TASER should always be worn on the weak side and drawn only with the weak hand. Mehserle on the night of the shooting was wearing the TASER on weak side that allowed him to cross draw with his strong hand, which Meyer believes should not be allowed. Stein asked if Meyer had made these recommendations to TASER International regarding the abolishment of the strong hand cross draw, and he replied yes. Stein then asked when were the recommendations made to TASER and surprisingly Meyer stated 48 hours ago. Stein said that during the last 18 months you have been retained as an expert on this case and only 2 days ago was TASER International informed regarding new recommendations? Even Judge Perry asked, “Prior to Saturday, you have never done [contacted TASER] so?” Many of the courtroom spectators had looks of disbelief at the tenor of Meyer’s testimony.

When Mehserle was escorted back to BART headquarters on the night of the shooting, while in the interrogation room with officer Terry Foreman, who was there for support, again he never expressed any sentiments about committing an accident during the several hours he spent with him. We even learn before the trial that Mehserle completed a form that all officers involved in a shooting are required to complete where he indicated that the shooting was deliberate with justification. This clearly indicates that the accidental shooting theory was derived after the shooting, but the Judge disallowed that form from being introduced as evidence so the jury is unaware is of its existence.

Dry v. Probes
Stein asked Meyer about the possibility of Mehserle using the dry stun method, rather than shooting the probes in a method that requires backing up, disengaging the suspect, creating space, and making the officer more susceptible to getting shot. At close range, you can take the TASER and apply it to any part of the person’s body to get pain compliance. Meyer quickly shot back and stated that the dry stun method is not effective because is only delivers pain and does not immobilize the target. Stein then asked Meyer about an article he published where he criticized the conclusions written by the Police Assessment Resource Center (PARC) of a UCLA police officer that used the dry stun method rather the more effective probe method against an uncooperative student in the library. In Meyer’s article, he defends the officer’s use of the dry stun method and calls the PARC’s findings that believed the prong method should have been used as “ludicrous.” The circumstances at the UCLA library has many similarities to what occurred on the BART platform with Grant, but Meyer would not defend the use of the dry stun method against Grant as he did in the UCLA incident. Stein suggested that Meyer was retained in the UCLA case and was hired to deliver an expert opinion that defended police officers which carried an enormous bias.

Stein asked Meyer about another defense expert, Dr. William Lewinski and whether they were friends. Meyer was not quite sure how many years he had been friends with Dr. Lewinski but he did admit that they have dinner on occasion. Stein was trying to determine if the two talked about their testimony to corroborate their theories to be consistent in Mehserle’s defense. Meyer denied that he communicated with Dr. Lewinski about his testimony saying, “We didn’t tell each other what was going to be said.” Stein them produced a copy an email that Meyer sent to Dr. Lewinski about everything he was going to testify about, and Stein asked, “Why did you copy Dr. Lewinski this email?” In Meyer’s shocking admission he replied, “I wanted him to know incase it might inspire him…you are right I did communicate with Dr. Lewinsky.”

When asked if he thought Pirone used excessive force, he testified that he didn’t see anything that was over the line and nothing jumped out. Meyer also testified that he did not think the LAPD used excessive force in the 1991 beating of Rodney King which was captured on video tape. He blamed the training and policy at that time as being deficient, and based on that, those officers did not used excessive force. Stein in his closing stated that Meyer’s belief that Mehserle accidentally deployed his TASER is highly unlikely. With 13,000 agencies using the TASER over 1 million times, there has never been TASER confusion where the device was worn on the weak side. Stein depicted Meyer as a high priced police expert that often sides with accused police officers. He charges a $5,000.00 retainer, $375.00 per hour and $3,000.00 per day in court (4 days) which amounts to close to $50,000.00 with 80 to 90 hours billed. “At what point does the money bias the credibility,” Stein told the jury in closing arguments regarding the defense experts.

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Alex Alonso is an author, film maker and founder of Streetgangs.com. He is also a contributing author in the 2010 book entitled “Black Los Angeles: American Dreams Racial Realities” (New York University Press). He can be reached via email, toll free at 800-249-1324 or on Twitter.