If a criminal trial is a marathon, a long slog where every minute counts but progress is slow, the prosecution in the Oscar Grant trial just advanced a tiny, incremental bit against the ex-BART cop Johannes Mehserle’s defense. On Wednesday, the defense’s narrative of the incident on New Year’s Day 2009 started to fray at the seams, revealing the inconsistencies in the story Mehserle’s attorney Michael Rains had been building. And prosecutor David Stein made sure the jury knew it.
In the afternoon, Rains called up Michael Schott, a forensic video expert, to analyze the five cell phone videos taken on the Fruitvale BART station when Oscar Grant was killed. Right away, Rains announced that Schott had been hired right after the incident to analyze the cell phone videos, and was being paid $125 an hour for his expertise. Stein had tried to bar Schott from testifying in a pre-trial motion, arguing that the jury should be allowed to make sense of the videos for themselves, but the judge allowed Schott in.
But Stein needn’t have fought so hard; Schott provided blatantly false testimony with such thin evidence that he likely jeopardized the credibility of the defense’s case. Rains has been trying to convince the jury that the whole incident was a terrible accident and that Mehserle intended to reach for his Taser when he instead grabbed his Sig Sauer p226 and shot Grant in the back that night. He has also been trying to prove that Oscar Grant and his friends presented a real threat to the officers.
Schott said that, contrary to multiple eyewitness accounts and cell phone videos, Oscar Grant had not been kneed in the head by Tony Pirone. He also said that even though Grant appears to fall to the ground right after Pirone approaches him, it was actually Grant who punched Pirone. Schott also suggested that Jackie Bryson, Grant’s friend, had swung at Johannes Mehserle that night.
Each of these pronouncements was met by audible contempt and gasps of disbelief from the audience. “He’s fabricating. He’s telling the jury, if it’s 80 degrees outside, he’s trying to say, ‘No it’s raining,’” Jack Bryson, Jackie Bryson’s father, told ColorLines after court adjourned for the day. “He’s trying to mislead.”
Schott tried to show that as BART cop Tony Pirone approached Oscar Grant and his friends, instead of Pirone having punched Grant, as had been widely reported, it was Grant who had kneed Pirone. Schott pointed to a bunch of blobs and blurs—the cell phone video was taken from inside the BART train and was barely discernible at any speed or size, let alone slowed down to each millisecond and blown up on the courtroom’s 56” tv screen. Schott’s evidence was the muddled reflection in the glass of officers whose movements were otherwise obscured, which apparently showed that Pirone’s body moved backwards in a way that would have been consistent with him having been kneed by Grant. “If you just look here, you can see it,” Schott said, moving his cursor around the screen. “No you can’t!” whispered a voice behind me.
Schott, seeming to sense the skepticism, said with his software he saw things that the naked eye could not.
“You can see a flesh colored object rise up, and what it appears is that Pirone’s midsection moves in tandem” with movements as if he’d been punched, Schott said. Except that Pirone himself, who was on the witness stand last week, never mentioned having been kneed by Oscar Grant. And when Bryson took the stand, Rains never took the opportunity to ask him why he had supposedly taken a swing at Mehserle. This supposed expert was seeing things in the video that not even the people involved in the exchange testified happened.
But Schott quickly followed with a caveat: “But, when dealing with shapes that could best be described as a blob, I don’t really want to say either way I will offer my analysis and leave the interpretation to the jury.”
The jury, meanwhile, leaned forward, squinting, peering at the gigantic screen. They seemed to be as unable as the rest of the court observers to discern exactly what Schott said he could see. So threadbare was his proof that ultimately, it’s possible Schott’s testimony did more to hurt than help the defense.
“He’s trying to put reasonable doubt in the jury’s mind,” Jack Bryson said. “He’s playing a game, that’s what he’s trying to do.”
Mehserle’s Taser Instructor Testifies
In the morning Rains called up Stewart Lehman, a BART police training officer who introduced Tasers to the BART police force and ran the Taser training that Mehserle attended. During his direct examination, Rains would pick and choose which part of the Taser training to elevate or reject. He pushed hard on the notion that the Taser training Mehserle received was inadequate while emphasizing training tips that supported Mehserle’s ultimate action to use lethal force.
Rains had Stewart walk through the 6-hour schedule for the Taser training Mehserle received on December 3, 2008. The training set aside time for static drills and practical training in how to shoot a Taser. Lehman also reviewed departmental use of force policies with his officers that day. Rains seized on the fact that Lehman used a “toolbox” theory to explain when the use of force was allowed, instead of a more old-fashioned “ladder” approach that ranked an officer’s options from non-violent to lethal, with simple officer presence at the bottom and lethal force at the top. In Lehman’s opinion, the ladder approach “gave the perception that an officer had to slide up instead of responding right away with lethal force if they were faced with a lethal force situation.”
But the toolbox approach Lehman taught his BART officers put all available force options on a continuum so that an officer could choose which force option best suited the situation, be it the deployment of a baton, a canine attack, simple verbal commands, a Taser, pepper spray, or a firearm. Rains took particular care to underscore this point.
Except that Rains also highlighted the fact that the practical training portions were weak and insufficient, emphasizing that because of financial constraints there weren’t enough Tasers for every cop to have their own so officers could bring them home to practice. Instead, there were only enough Tasers for every cop on any one shift. Each Taser cartridge costs around $22, and this supposedly kept cops from being able to be thoroughly trained in their uses. Rains also pointed out that officers were not allowed to bring their firearms into Taser training, as if to imply that there would be no opportunity for officers to have real practice discerning between one or the other before they were sent out into the field.
During cross-examination, the prosecutor David Stein methodically challenged Rains’ statements. Turns out that even though BART cops aren’t allowed to bring their firearms into Taser trainings, neither are they allowed to bring their firearms into baton or other defensive tactics trainings. “It’s a safety thing, right?” Stein asked. “Yes, it is.” Lehman confirmed.
The prosecution also showed that the so-called continuum or toolbox theory Lehman advocated actually did contain within it sublevels of rankings. Stein got Lehman to admit that not all levels of force are equivalent, and responding to a minor threat with lethal force was not okay.
Most importantly, the jury was shown the four correct ways to holster a Taser. At the time, BART cops were allowed to keep a Taser in a drop-leg holster on their dominant side and pull it with their dominant hand. Or they could hold their Taser at their waist in their duty belt on their dominant side, positioned in a way where it could only be pulled out with their non-dominant hand. As a third option, cops could hold their Tasers on their non-dominant side and pull their Tasers in a “cross-draw” fashion so their dominant hand had to reach across their body to pull it out. Lastly, cops could holster Tasers on their non-dominant with a non-dominant hand release. So many options, and every cop could choose what worked best for them. But ultimately, the configuration was meant to decrease any kind of weapon confusion like the kind the defense claimed Mehserle ran into. And the prosecutor made sure the jury understood that.
Stein also underlined the fact that the X26 Taser Mehserle was using that night looked nothing like his gun. In fact, the X26 was 60 percent lighter than its predecessor, the M26. The X26 was a neon yellow, plastic thing, almost toylike with its light weight, buttons and LED screens. That night, Mehserle, who is right-handed, had his Taser holstered on his non-dominant left side so he could use a cross-draw pull. Stein made sure the jury knew that this configuration was explicitly suggested by the Taser manufacturer to decrease the likelihood that a cop would ever confuse their gun for a Taser.
Wednesday marked day two of ex-BART cop Johannes Mehserle’s defense after the prosecution rested its case on Monday. Court resumes again today, and is scheduled to wrap up by next week.