“He’s never apologized. Except for today when he’s in front of the jury he cries? Why today?”
The second day of ex-BART cop Johannes Mehserle’s testimony did not go nearly as well for his defense as did the first. If Mehserle succeeded in humanizing himself for the jury on Thursday, Friday he helped the prosecution remind us all why we’re here: He shot an unarmed man in the back on New Year’s Day 2009, and there remains no compelling explanation for why.
Friday’s court session was barely an hour old when the outraged reactions of Oscar Grant’s family and supporters to Mehserle’s emotional testimony prompted the judge to arrest one observer for contempt. That was the beginning of a downward spiral for Mehserle’s testimony, which marks the first time he’s spoken publicly since the shooting.
The drama began as defense attorney Michael Rains’ questioning inched closer and closer to the moment when Mehserle shot Grant as he lay facedown on the BART platform. When Mehserle described the moment, he choked up and paused.
“I remember the pop. It wasn’t very loud,” Mehserle recalled. “It wasn’t like a gunshot. I was wondering what went wrong with my Taser.” His defense has argued that the shooting was a tragic accident, in which Mehserle meant to reach for his Taser but pulled out his gun instead.
Rains asked Mehserle when he realized he’d shot Grant. “I thought, I remember looking at my gun in my right hand. I didn’t know what to think. I just thought it shouldn’t have been there.” And then Mehserle broke down on the stand—his head bowed, eyes closed. “You knew then you’d just shot him, didn’t you?” Rains asked. Mehserle’s face turned red and he nodded, mouthing inaudibly, “Yes.”
Whether the show of contrition impacted the jury is unclear, but it didn’t play well in the courtroom. Grant’s mother Wanda Johnson, a constant courtroom presence, stood up and walked out. After Johnson left, another court observer stood up and shouted, “Maybe you should save those fucking tears, dude.”
Judge Robert Perry immediately demanded the man’s arrest for contempt of court. He threatened to clear the courtroom “of press, family, everybody. I’m not going to have it.” This was all before 9:30am, just an hour into Mehserle’s time on the stand.
“Can you tell the jury now whether you intended to shoot Mr. Grant?” Rains later asked, in soothing tones he’s used with no other witness. “I didn’t intend to shoot Mr. Grant,” Mehserle said tearfully. “What did you mean to do?” his attorney asked. “I intended to Tase him.”
“I put pressure on the wound,” he said of the moments after he fired. “I remember telling him to calm down, calm down. You’ll be okay.” Mehserle recalled looking back at Grant’s body as he was being escorted off the platform. “I just wanted him to be all right,” he said.
Behind me, Grant’s family members and court observers sighed loudly, hissed and fidgeted, clearly sickened by Mehserle’s sudden display of emotion. “He’s never apologized,” Donna Smith, whose daughter is Grant’s Godsister, told me later. “Except for today when he’s in front of the jury he cries? Why today?”
Throughout the two-week trial, Mehserle’s shown little emotion as he’s watched. He has not reacted to any of the testimony or evidence, even though video of him shooting Grant has been played dozens of times.
“It was not an accident,” said Bobby Cephus Johnson, Grant’s uncle and the de facto family spokesperson. “That look of surprise on his face? That was not surprise because he didn’t mean to shoot him. He was surprised because Oscar didn’t have a gun in his pocket.”
Johnson echoed the fact that neither Mehserle nor his family has apologized or shown remorse for Grant’s death. “If it was an accident, there would have been some compassion, and Johannes Mehserle’s parents, knowing that another mother lost her only son, would have said we are so sorry for your loss,” Johnson said. “They condemned us for pursuing this.”
Added Jack Bryson, whose son Jackie Bryson testified earlier about the night on the BART platform with Grant, “How come we didn’t see him crying before today? Wanda, she cries every single day.”
Prosecution Chips Away at ‘Accident’ Defense
Mehserle’s memory, which was so vivid during direct examination, went fuzzy once prosecutor David Stein started questioning him. Stein proved that not once following the shooting did Mehserle tell anyone it was an accident, though Mehserle did tell his partner that night, “I thought he was going for a gun.”
Stein also won a crucial point in reconstructing what Mehserle did and didn’t know that night. Mehserle had testified that he thought Grant was going for a gun when he reached in his pocket, and that’s why Mehserle pulled the trigger on what he thought was his Taser, but turned out to be his Sig Sauer p226.
So Stein showed video taken minutes before Grant was killed. Grant is sitting with his friends Bryson and Carlos Reyes against the wall of the BART train platform. They appear calm, compliant. Stein paused the video to point out that Grant had a cell phone in his right hand and a red dot pointed at his groin. The red dot was the laser beam emitting from Mehserle’s Taser. Mehserle said he pulled out the Taser as a tool of intimidation, to get Grant and his friends to cooperate.
Mehserle testified that he told Grant to put his cell phone away, and remembered that Grant obeyed. Grant put it in his right pocket, where he was reaching when Mehserle now says he believed Grant was going for a gun.
“Why didn’t you yell, ‘Gun! Gun! Gun!’ like you’d been taught in training?” Stein asked. Mehserle said he wouldn’t yell that unless he was 100 percent sure, or unless he’d actually seen a gun in Grant’s pocket. “But you still believed he was going for a gun? Why didn’t you yell ‘Gun! Gun! Gun’?” Stein pressed. Mehserle stumbled, saying, “It didn’t cross my mind.”
Finally Stein, who usually doesn’t have the same courtroom flair as Rains, raised his voice. “Isn’t it true you never had the intention of using your Taser?!” It was more of a booming statement than a question.
Stein was able to show that Mehserle did none of the things he should have done if he really believed Grant had a gun. And he did none of the things he should have done if he really intended to pull his Taser. Those are important holes in the defense’s argument that the shooting was an understandable, if tragic mistake.
The prosecution also made important strides towards damaging Mehserle’s credibility, and therefore countering his polished performance on Thursday. The prosecution was able to catch enough of the inconsistencies in Mehserle’s story to show that his actions that night were more than rookie mistakes. Stein inched towards showing that it’s possible Mehserle knew what he was doing when he pulled his gun on Grant.
Ultimately, Mehserle’s morning tears may backfire on him. The show of contrition didn’t feel sincere. And for Oscar Grant’s family, it was far too late. The defense’s big gamble putting Mehserle on the stand seemed smart yesterday morning, but by the afternoon it may have blown up in its faces.
Photo: AP Photo/Nick Ut