Former BART officer sentenced to 2 years, gun enhancement dismissed

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By Alex Alonso | Streetgangs.com Staff Writer | November 9, 2010 | 5:57 a.m.

LOS ANGELES, Calif. – On Friday afternoon Judge Robert Perry sentenced former BART police officer Johannes Mehserle to 2 years in prison for the shooting death of Oscar Grant. He was convicted of involuntary manslaughter last July, which was the lesser of the three charges that he was facing.

Prior to the sentencing, Judge Perry heard arguments from attorneys on both sides regarding the motions that defense attorney Michael Rains had filed since the July conviction. The first matter of discussion was the motion for a new trial based on newly discovered evidence. During the trial, there was reference to six previous cases of alleged Taser confusion, and of those cases, not one officer wore their Taser on the weak side using a cross draw of a yellow Taser. Since Mehserle’s conviction, the defense became aware of two more cases of Taser confusion, but unlike the six cases referenced in the trial, these two cases both involved the officer using a cross draw with the dominant hand. Additionally, one case involved the same model yellow Taser that Mehserle was using.

During the trial, Alameda County prosecutor David Stein cross examined the defense’s Taser experts, Stuart Lehman and Greg Meyer about how none of the examples of “Taser confusion” in the past included a yellow X26 where the officer used the strong hand on a cross draw configuration. Since the trial, the defense learned about an incident that occurred in Mesa, Arizona in May of 2004 and another one in Nicholasville, Kentucky in April 2008 where Taser confusion was claimed by the officers. This evidence, defense attorney Rains believed, would have helped during trial in possibly preventing an involuntary manslaughter conviction. Prosecutor Stein told the judge that they never argued for involuntary manslaughter and that they were pursuing murder charges. Stein also questioned the veracity of Rain’s claim that they were not aware of these two cases, noting that his expert, Meyer, wrote for website Policeone.com, where an article about the Nicholasville, KY incident was published in April 2008. Judge Perry denied the motion for a new trial on this new evidence stating that these two newly discovered cases would not provide anymore more information to the jury to determine if Mehserle acted with gross negligence.

Rains also challenged that Court’s instruction to the jury that they could impute former BART officer Anthony Pirone’s unlawful behavior to Mehserle if he was aware of Pirone’s acts. Because Mehserle arrived on the scene after Pirone and was only on the platform for about 2 minutes, Rains argued that Mehserle was not required to consider the lawfulness of Pirone’s detention of Grant, and that any liability should have be dealt in civil and not criminal court. Judge Perry stated that Pirone’s conduct on the platform was questionable and Grant could have reacted to Pirone’s arrest as unlawful, but he continued that there was a lack of clarity on the record and would rather let another court handle any appeals based on this matter.

The most important matter that the attorneys argued was the validity of the gun enhancement that the jury found Mehserle guilty of. This was a serious matter because it actually carried a stiffer punishment than the involuntary manslaughter conviction which carried a two, three or four year sentence, but the gun enhancement added a consecutive sentence of three, four, or ten years. Rains submitted a motion to the court stating that there were errors in the jury instructions as it relates to an involuntary manslaughter conviction. Judge Perry agreed, and stated that he had concerns with the jury instructions, specifically in interpreting the difference between personally using and intentionally using a firearm which were not outlined under the involuntary section of the instructions.

Next of Kin Comments
Five members of Grant’s family spoke at the sentencing hearing before Judge Perry made any decisions about the several motions filed by the defense. Grant’s uncle, Cephus “Bobby” Johnson, addressed the court first by saying that Oscar was his nephew and best man at his wedding. He told Judge Perry that he still believed the shooting to be a murder and that Oscar’s daughter, Tatiana, has been left without a father. Other members of the family began to weep as Johnson continued. He asked the court to give Mehserle the maximum of 14 years when he angrily told Judge Perry, “we shouldn’t loose this case because of you,” referring to the instructional errors on the gun enhancement.

Oscar’s aunt stated that she still waits for him to come home, and his older sister, Shante Moore, said she spoke to him shortly before he was killed and told him to be safe. She was at the hospital when Oscar passed. Sophina Mesa, the mother of Oscar’s only child, said that her daughter can never see her father, but Mehserle will continue to see his kid. She asked the judge to “send a message to our family and to the world.” Wanda Johnson, Oscar’s mother, was the most emotional and repeatedly asked Judge Perry to sentence Mehserle to 14 years, while she called the shooting a murder several times. She stated that. “My son took a picture of him [Johannes Mehserle] holding his Taser and all of a sudden he does not know the difference between a Taser and a gun,” she cried. She emotionally expressed that, “if the court finds anything less than the max, its an injustice.”

Johannes Mehserle Speaks
While standing up facing the judge, Mehserle, read a written statement claiming that he was not proud of what he did when he accidentally took a life. With remorse, he said, “I failed when I accidentally shot Oscar Grant. I am truly sorry that my actions took a son, father, uncle…it’s a loss that the Grant family should not have to endure. What happened that night was based on Oscar Grant’s actions and my reactions to it, and not based on race.” He then spoke about being made fun of when he was young and how he made a commitment to not treat people based on race or culture. As he clutched his paper with his shackled hands holding it at waist level, he continued to apologize to the public and to law enforcement for making their job more difficult with the mistrust of the police that this incident produced. “I truly don’t want to be in jail but if it is necessary for my family’s safety then I will continue in my jail cell,” he continued. Mehserle never turned around or looked at the family but remained looking down at his statement facing the judge. He concluded his 12-minute statement by telling the court that he prays that the Grant family will find it in their hearts to forgive him.

Judge Perry’s Decision
Judge Perry began his ruling by stating that not everyone is going to be happy with his decision. He expressed discontent regarding the polarization that this case created, and acknowledged the shameful history of race relations, but sternly stated that he would not let considerations of race impact the case. He expressed that he did not believe that Mehserle’s actions were influenced by race. Judge Perry continued that it was the court’s belief that since the jury rejected the 2nd degree murder and voluntary manslaughter, it suggested that the jury believed it was a case of weapons confusion. He stated that Pirone was acting improperly and that his acts “may” have been unlawful.

Regarding the gun enhancement, Perry made two critical rulings, favorable to the defense. He believed that the jury was not properly instructed regarding the gun enhancement with an involuntary manslaughter conviction. Since the court believed that the jury must have accepted the Taser confusion defense, since they rejected murder and voluntary manslaughter, the shooting would have to be considered an accident. For a gun enhancement to be true, the defendant must be found to have intentionally used the firearm, and since the court did not believe that Mehserle intentionally used the firearm, the jury’s verdict was on the gun enhancement was dismissed due to insufficient evidence.

The family was visibly bothered as they heard Judge Perry’s decision, and as the Judge read over the evidence that Mehserle did not mean to use his firearm, the Grant family grew exceedingly disappointed as he cited ten reasons why the shooting was result of Taser confusion. According to the evidence Judge Perry stated:

1. Pirone was in the line of fire
2. Mehserle was only briefly on the scene
3. Mehserle had no motive to shoot Grant
4. Mehserle announced that he was going to use Taser on Grant
5. Mehserle created the distance to use Taser
6. Mehserle on shot once and didn’t double or triple shot
7. He pulled the gun from the holster in a Taser fashion
8. After the shooting, Mehserle pulls hands up towards head in confusion
9. Carlos Reyes on the platform heard Mehserle say, “Oh shit I shot him.”
10. Mehserle testified that it was an accident

Judge Perry concluded that the jury’s finding on the gun enhancement is contrary to and not supported by the evidence, and while it seemed as if he was granting a new trial on the gun enhancement only, he then dismissed it outright.

Judge Perry stated that Mehserle was eligible for probation citing that of the eight previous officers that claimed Taser confusion, none of them have been charged, and that several people were to blame for what happened to Grant, including the persons fighting on the train, former BART officer Pirone, members of the crowd and even BART with providing Mehserle with inadequate Taser training. The family began to walk out the court when they anticipated a probation sentence but Judge Perry continued that a young man died, and that prison was appropriate. He then sentenced Mehserle to the low term of 2 years, with 146 days of in custody credit. With good behavior Mehserle will serve 50 percent of the two year sentence and be released in the second week of June 2011.

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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, at 800-249-1324, or on Twitter.