After a swift but dramatic three week trial, a Los Angeles jury will likely begin deliberating today in the trial of ex-BART cop Johannes Mehserle, who has been charged with murder for shooting the unarmed Oscar Grant in the back on New Year’s Day 2009. The jury will now decide whether the shooting was a tragic accident, as Mehserle argues, willful murder or something in between.
On Wednesday, Los Angeles Superior Court Judge Robert Perry declared the shooting wasn’t a premeditated act and thus not first-degree murder. Judge Perry’s ruling left the jury with four options: second-degree murder, voluntary or involuntary manslaughter, and acquittal. “We got everything that we wanted,” Oscar Grant’s uncle Bobby “Cephus” Johnson told the San Jose Mercury News. “We thought it was second-degree from the beginning.”
So what, exactly do the charges mean and what’s the jury considering in deciding them? Here’s a breakdown of the evidence and the competing arguments jurors will likely weigh for each charge.
This is defined as an intentional killing, but one that’s neither planned nor premeditated. Second-degree murder is committed with a conscious disregard for the victim’s life by a person who understood what he or she was doing to be dangerous and lethal. It’s unlikely the prosecution proved to the jury Mehserle’s actions that night meet this standard.
The most compelling evidence came early on, as the prosecution worked to establish that firing Mehserle’s .40 caliber Sig Sauer is not an easy thing to do on accident, as the defense claims.
Prosecutor David Stein, a deputy district attorney with Alameda County, called up Paul Slivinsky, the now-retired BART police armorer. Slivinsky was responsible for fixing and inspecting thousands of firearms, including the one that Mehserle used the night he killed Grant. He walked the jury through the four safety components of Mehserle’s weapon: a firing pin, the disconnector, a notch cut into the hammer of the gun and a semi-cock trigger that would keep the hammer from slipping forward.
Later, Sgt. Paul Garcia, a firearms instructor for BART police, showed the safety mechanisms in the holster Mehserle used that night as well. Pulling a gun from the holster is an equally involved, multistep process. The prosecution’s intention was to show, as Napa Valley Academy police training instructor David Clark testified, it is “not a simple act to simply draw a gun from a holster.”
Ultimately, Stein showed that no matter how lost a cop may be in the moment, no matter how heated an exchange, and no matter how subconscious and fluid a cop’s movements may be when pulling out his or her firearm, no cop pulls a gun without making several conscious movements to do so.
A week and a half later, when the defense had Mehserle on the stand, the prosecution pressed him for details about what he told people immediately after the shooting took place. Stein highlighted the fact that Mehserle never told anyone—not his partner, not any of the other cops on the platform that night, “not anyone on the entire face of the planet,” in Stein’s words—that he shot Grant accidentally. It wasn’t until Mehserle had been charged with murder and had broke down in tears on the stand that he proclaimed he never meant to shoot Grant.
Finally, Stein chipped away at the argument that Mehserle thought Grant had a gun. Cops are trained to shout “Gun! Gun! Gun!” when they believe a suspect is carrying a firearm, but Mehserle didn’t do so that night. Indeed, Mehserle even testified that he had been disciplined previously for not shouting “Gun! Gun! Gun!” when he found one during a prior arrest. The prosecution, while perhaps unable to show real intent to kill from Mehserle, proved at least that Mehserle’s actions were inconsistent with the explanations he now offers.
Voluntary or Involuntary Manslaughter
If Stein’s case is not enough to reach second-degree murder, Mehserle could be convicted of either voluntary or involuntary manslaughter. For voluntary manslaughter, jurors must be convinced that Mehserle killed Grant in “the heat of passion” and in an unreasonable reaction to a perceived threat.
The lesser charge of involuntary manslaughter is for the unintended killing of another person, but with “criminal negligence.” The prosecution would need to prove only that Mehserle’s behavior was wildly unprofessional.
Stein was indeed able to show during his cross examination of Mehserle that he had ample time to subdue Grant. Mehserle pulled out his Taser on the platform two times, one of which Grant captured in a haunting picture on his fiancee’s cell phone. Stein also showed that Grant and his friends Jackie and Nigel Bryson and Carlos Reyes were compliant that night. They obeyed every order BART cops gave them.
The defense parried by repeatedly bringing up the placement of Mehserle’s thumb on his pistol. According to Michael Schott, a video expert for the defense, Mehserle’s right thumb was moving up and down the slide of his Sig Sauer p226, a move that’s unnecessary to fire the gun but would have been necessary to unlock and shoot his Taser. The movement is actually nearly impossible to discern from the videos, but the defense hoped to buttress the argument that Mehserle intended to pull out his Taser.
Mehserle also said he had no recollection of seeing a laser beam emitting from what he thought was his Taser. He had no recollection of pulling any firearm out that night, for that matter, and could not remember if he did or didn’t see the LCD screen that’s standard in the back of his X26—which would have told him he wasn’t holding a Taser.
His testimony, however sincere or credible it will appear to jurors, was very clear: he never intended to shoot Grant. And it is likely that Mehserle will be convicted of one of the lesser charges, which don’t require proof of intent to kill, if any at all.
Mehserle still faces a sentence enhancement, for purposely firing a gun during a murder, that could mean an extra 25 years in prison if he’s convicted on the second-degree murder chargre. He could spend as much as 40 years behind bars. Voluntary manslaughter convictions carry a three to 11-year sentence, and involuntary manslaughter would mean Mehserle could spend as little as two years and no more than four behind bars.
Steep Climb to a Murder Charge
According to Thandisizwe Chimurenga, who’s covering the trial for Oakland Local, Mehserle became eligible for a second-degree murder charge when Jackie Bryson—a good friend of Oscar Grant’s, who was kneeling and handcuffed next to Grant when he was shot—testified that Mehserle said, “Fuck this,” before shooting Grant in the back. Judge Perry said he would allow the jury to decide whether Bryson was a credible witness, even though Bryson’s testimony didn’t always match up with his prior sworn statements.
Otherwise, the prosecution’s best argument is that Mehserle knew better—that it couldn’t have been just an accident, or that if it was a mistake it was a criminally negligent one. Stein certainly showed that, whatever Mehserle’s intentions, the BART police conducted themselves in an unprofessional manner that totally breached protocol.
There were many, basic violations: Grant and his four friends were not told why they were under arrest before officers started trying to handcuff them. None of them were searched, even after the shooting took place and Grant’s friends were taken into BART custody and detained for hours. Mehserle’s colleague, former BART cop Tony Pirone, was yelling racial slurs at Grant. He didn’t need to slam Grant against the station’s wall, or knee Grant in the head. The BART cops, Mehserle included, hold clear responsibility for escalating the situation on the platform with their own conduct.
Meanwhile, never did Johannes Mehserle yell, as he’d been instructed, “Taser! Taser! Taser!” before he pulled the trigger on what he supposedly thought was his Taser. Later, Jackie Bryson was handcuffed and held for four hours in BART police custody after the shooting, and was never told why he was there.
There seems to be a long list of material for a criminal negligence here.
But what will always be a matter of contention in any police brutality case, and certainly in this one, is whether the use of force was appropriate for the actual level of threat Grant and his friends posed to the BART cops. If the jury buys the theory that Mehserle intended to pull only his Taser on Grant, does that mean he was within the law when he shot an unarmed man?
That’s a tougher legal question than it is a moral one. Because what jurors have also learned during this trial is that police officers have total discretion as to what tool they need to subdue suspects. Moreover, they are allowed to use any kind of force that corresponds to the level of threat they perceive they’re under. So it’s difficult to prove cops have been guilty of excessive force and intentional abuse; the only defense a cop needs is that he or she fears life-threatening danger. Mehserle says he feared such danger that night.
When I spoke last week with Jack Bryson, whose son Jackie was handcuffed and kneeling next to Grant on the BART platform, Bryson was furious about the trial testimony. “From the very beginning, we have seen total fabrication from every officer who has taken the stand,” Bryson told me. He was confident that the prosecution would reveal these cracks in the cops’ testimony, but when I asked him if he thought Mehserle would be convicted of murder, Bryson paused. “History is not on our side,” he replied.
Correction: An earlier version of this article reported Grant and his friends were not told they had been arrested. They were not told why they had been arrested.
Photo by Hatty Lee