Prosecutor closes with appeal to convict former BART officer

A racially charged murder case came to a close Friday with a prosecutor asking Los Angeles County jurors to do what no local jury has done for nearly 30 years: convict a cop of murder in an on-duty police shooting.

The jury will weigh whether a former transit police officer intentionally fired his weapon at an unarmed man lying face-down on an Oakland train station platform or whether the shooting was a tragic accident.

To support their case, prosecutors have repeatedly shown jurors several videos taken by witnesses that show Johannes Mehserle aiming his handgun and firing a single round into the back of Oscar J. Grant III as the officer stood over him.

But the footage may help build false expectations of a murder conviction. Legal experts said prosecutors rarely file murder charges in police shootings and when they do, they face a high legal hurdle in persuading 12 jurors that an officer is guilty of the ultimate crime.


“If they get a conviction, this will be fairly groundbreaking,” said Laurie Levenson, a Loyola Law School professor and former federal prosecutor. “These are tough, tough cases.”

Even when they have videotapes, prosecutors can have problems.

Excessive-force cases usually hinge on the intentions of the officers involved, which can be difficult to prove. Defense experts, such as those called by Mehserle’s attorney, dissect video footage and present a contrary view of events that focuses on the perceptions of the officers at the time they used force.

“It makes the video less of a so-called smoking gun,” said Levenson, who has attended portions of the trial.

For Alameda County prosecutors, the footage of Grant’s killing is the heart of the case. They have argued during the three-week trial that the videos prove Mehserle intentionally drew a firearm and shot Grant as he cooperated with police commands. Nothing on the videos shows any justification for shooting Grant, the lead prosecutor told jurors.

Jurors have the option of finding Mehserle guilty of second-degree murder or lesser charges of manslaughter.

But the defense has also offered a roadmap to an acquittal if jurors wish to take it.

Mehserle, 28, testified last week that he shot Grant after he mistakenly drew his handgun instead of an electric Taser gun on his belt. He said he wanted to use the Taser to immobilize Grant, fearing that he might have a gun.


“This is an accident, folks, pure and simple,” the officer’s attorney, Michael L. Rains, told jurors.

The shooting sparked outrage and violence in Oakland and provoked questions about police treatment of minorities. Mehserle is white, Grant was black. The trial was moved to a downtown Los Angeles courtroom amid concern about extensive media coverage of the killing in the Bay Area. Oakland police and city officials have urged calm but are preparing for possible violence after the verdict is announced.

To obtain a murder conviction, prosecutors must prove that Mehserle intended to kill Grant or acted with a conscious disregard for life. Second-degree murder carries a sentence of 15 years to life in prison.

Los Angeles prosecutors last won such a verdict in 1983 when a jury convicted Deputy Robert Armstrong for shooting a pregnant woman and her fetus. The shooting took place after Armstrong carried out an illegal raid on a Duarte home that he believed was being used to sell drugs.


The deputy called a sheriff’s station pretending to be a neighbor and falsely reported a disturbance at the home and waited until he was assigned to deal with the report. Armstrong pounded on the door at the home, pretending to be a stranger seeking shelter from the police. Delois Young, who was eight months pregnant, opened the door carrying an unloaded rifle. Armstrong fired three shots, wounding Young and killing her fetus.

After the verdict, a judge reduced the conviction to involuntary manslaughter and sentenced the deputy to a year in jail. An appeals court later reinstated the murder verdict but allowed the sentence to stand.

Jurors in Mehserle’s trial could convict the former officer of voluntary manslaughter if they believe that he was provoked and shot Grant in the heat of the moment or that Mehserle unreasonably believed he was acting in self-defense. Mehserle has claimed that he believed Grant was reaching for a gun moments before the shooting.

If jurors believe that Mehserle did indeed intend to draw his Taser, they could still convict him of involuntary manslaughter if they found he acted with criminal negligence. The charge carries a maximum sentence of four years in prison.


In 2003, a Riverside County jury reached that verdict when they convicted a local district attorney’s investigator for an on-duty shooting.

Investigator Daniel Riter was trying to detain a woman whose two young children were declared wards of the court. He fired into a truck, killing the driver who had been giving the family a ride. Riter’s defense attorney argued that the investigator faced violent resistance. But the prosecutor told jurors he used unreasonable deadly force.

Riter was sentenced to seven years in prison.

Mehserle’s attorney has argued against such a verdict, telling jurors that the shooting was the result of an accident caused by inadequate training, not criminal negligence.


John D. Barnett, an Orange County-based defense lawyer, said prosecutors have an uphill climb in convicting Mehserle of murder. Jurors, he said, tend to be reluctant to second-guess police officers for on-duty actions, even when they are videotaped.

“People don’t want their police officers concerned about their own prosecution when they’re trying to come to the aid of citizens,” said Barnett, who represented one of four LAPD officers acquitted of beating Rodney G. King in 1992.

Excessive-force cases, he added, turn on the ability of defense lawyers to put jurors in the position of their clients and experience what the officer felt — a strategy that Mehserle’s defense has used to argue that the shooting was a tragic accident.

In 1993, Barnett successfully defended LAPD Officer Douglas J. Iversen on a murder charge in the shooting of an unarmed tow truck driver who was driving away from a southwest Los Angeles gas station.


The defense contended that the officer was trying to keep John L. Daniels from running over bystanders when he refused to stop for the officer. But prosecutors argued that the pedestrians were never in danger of being hit.

Barnett said he focused on Daniels’ criminal record and called former Los Angeles County Dist. Atty. Ira Reiner to tell jurors that he had warned police officers about dangerous tow truck drivers. Two separate juries deadlocked on the charges before a judge dismissed the case.

“These cases are never a slam-dunk,” Barnett said. “That’s why it’s extremely dangerous to create expectations that may not be fulfilled.”