Update—7/15: Clarifying involuntary vs. voluntary manslaughter. There’s been a lot of debate, here and on other sites, about whether the jury believed Oscar Grant and his friends presented a threat to the police and others on the transit platform. Here’s one point worth clarifying in our own analysis: Intent is the bright line between involuntary manslaughter and the more serious charges Johannes Mehserle faced. So all we can say definitively about the ruling is that the jury concluded the killing was unintentional. As detailed below, I believe that the defense’s effort to establish Grant as a threat contributed to the jury’s thinking about whether Mehserle drew and fired his gun intentionally. Legally, if the jury fully embraced the threat argument, they’d have to acquit. But we may never know how jurors reached their awkward decision. Garrick Lew, a San Francisco criminal defense attorney, gave me a useful perspective this week: Juries that are unable to come to a consensus often choose intermediate charges and return compromise verdicts—even verdicts that are not based on evidence presented in court—so as to avoid a mistrial. Lew was confident that this was the case in Mehserle’s verdict, considering how little time the jury took to reach a decision. With competing narratives, dozens of pieces of evidence and six videos to consider, not to mention 13 pages of jury instructions written in full legalese, I’d agree there was no other way the jury could have returned their verdict so quickly.
A Los Angeles jury’s ruling yesterday that ex-BART cop Johannes Mehserle committed involuntary manslaughter in killing the unarmed Oscar Grant on New Year’s Day 2009 has left many observers both angry and confused.
The awkward ruling, which came after just under nine hours of deliberation, appears to both accept the defense case that Mehserle pulled his gun on accident and reject it, by adding a sentencing enhancement to the conviction for intentionally using a gun. It also accepts the defense’s assertion that the Oakland transit police reasonably felt life-threatening danger from the unarmed group of Black men they arrested. [Update: The involuntary manslaughter ruling proves only that the jury believed the killing was unintentional. The defense’s threat argument, detailed below, likely shaped that decision. But it should be clear that, legally, an acquittal is the only ruling that definitively embraces the reasonable threat argument.]
For many in Oakland who have rallied around the Grant family, the verdict was deeply unsatisfying. People are asking now whether the jury misinterpreted the evidence and testimony presented in court. How could a jury all but acquit a white cop for yet another killing of a young Black man?
Video of the shooting seems to plainly demonstrate a man being murdered: After wrestling Oscar Grant to the ground, BART cop Tony Pirone helps Mehserle turn Grant over onto his stomach. Pirone kneels on top of Grant and presses Grant’s face into the BART platform as Mehserle moves to handcuff him. Mehserle gets ahold of Grant’s left hand, but can’t get Grant’s right hand out of his pocket. Mehserle reaches and fumbles, but eventually pulls out his gun, stands up and shoots Grant—“execution-style,” as many have called Mehserle’s fatal act that night.
For many, this footage is evidence enough that Mehserle committed outright murder. But perhaps less than the actual evidence and arguments from either side, jurors were limited in their decision by the legal definitions of murder and manslaughter, and what constitutes an unlawful killing.
The prosecution was never able to convince the jury of intent, which is a requirement for convicting a defendant of second-degree murder. The jury’s instructions stipulated that second-degree murder occurred if, “When the defendant acted, he had a state of mind called malice aforethought.” Malice aforethought was defined for jurors as “a mental state that must be formed before the act that causes death is committed.”
We’ll likely never know what was inside Mehserle’s mind on the transit platform that night. Alameda County prosecutor David Stein easily proved Mehserle and his colleagues showed gross negligence. Indeed, the prosecution plainly showed that Mehserle ought never to have been sent out on the streets with a gun. But it couldn’t prove to the jury that he intended to kill Grant.
It’s not that the defense was so dazzling; it’s that malicious intent is so incredibly difficult for the prosecution to prove, particularly when a cop is involved. As Grant family attorney John Burris said at yesterday’s press conference, “In my long history being involved in police matters since 1979 and well over 30 homicides with police, never have I had a case when a police officer was convicted of any crime against an African American male.”
Given that history, Burris argued, even the involuntary manslaughter conviction is a breakthrough for police accountability.
Just after the verdict dropped Thursday afternoon in L.A., the Department of Justice announced it will conduct an independent review of the case and decide whether to prosecute Mehserle at the federal level.
The DOJ’s statement read:
The Justice Department has been closely monitoring the state’s investigation and prosecution…The Civil Rights Division, the U.S. Attorney’s Office, and the FBI have an open investigation into the fatal shooting and, at the conclusion of the state’s prosecution, will conduct an independent review of the facts and circumstances to determine whether the evidence warrants federal prosecution.
What Swayed the Jury?
By including the gun-crime sentencing enhancement in its verdict, the jury suggested that it didn’t believe the defense’s weapon-confusion story. The jury’s instructions on the gun enhancement stipulated that it would apply only if jurors believed Mehserle “intentionally” brandished or used his gun. The defense’s core argument was precisely the opposite: that he pulled the gun unintentionally.
During the trial, Mehserle’s attorney Michael Rains crafted a narrative that painted Mehserle as a well-meaning but poorly trained police officer, fresh out of school and with a solid heart—no one who was voted most huggable in high school could possibly be a murderer, right? He had no prior record of excessive force. Rains argued that Mehserle never even meant to pull out his gun, let alone fire it. “No, Sir. I meant to pull my Taser,” was Mehserle’s solemn reply when Rains asked him whether he intended to shoot Grant that night.
But not only did Rains argue the shooting was unintentional, he also spent much of the trial maligning Oscar Grant. He charged that Grant kneed another BART cop that night; that Grant and his friends were dangerous and untrustworthy; that Grant had a history of run-ins with police that proved it was in his character to resist arrest, to not be afraid to face a cop with a Taser.
In this way, Mehserle’s defense seemed to want to have it both ways—to show that Mehserle was deeply saddened by the accidental turn of events, but that Grant also kind of deserved what he got.
The prosecution, in turn, built its case on the fact that Mehserle had received hundreds of hours of training and had no excuse not to know what weapon he pulled out of his belt. Not only that, but the holsters cops use are equipped with multiple mechanisms to prevent a gun from slipping out. The gun itself requires several motions to discharge. Mehserle’s gun weighed 1.7 pounds more than his Taser, and the weapons were plainly distinguishable from each other in both size and color.
Further, Mehserle knowingly pulled his Taser out of its holster twice that night. Twice he was able to correctly identify where his Taser was on his duty belt. Twice he unholstered it, flipped the safety switch off and aimed it at Oscar Grant—who caught an image of Mehserle pointing the Taser on his fiancee’s cell phone, the last photo Grant ever took. Twice, Mehserle was able to return his Taser to his holster successfully.
Finally, though Mehserle is seen chatting with other officers on the platform after the shooting, never did Mehserle tell any of them, including his partner that night and his close confidants on the force, that the shooting was an accident. Rather, he invoked a familiar refrain in police shootings: “I thought he was going for a gun.” Stein offered this as proof that Mehserle is now prevaricating about his thoughts that night.
But none of this added up to a malicious intent to murder for the jury. It also appears that the defense’s effort to smear Grant as a troublemaker succeeded,
since the jury concluded Mehserle was not guilty of voluntary manslaughter, either. [Update: Again, an involuntary manslaughter ruling says only that the killing was unintentional.]
Jurors were told that voluntary manslaughter is an act of murder that could be reduced to the lesser charge if Mehserle acted in “imperfect self-defense or imperfect defense of another.” That is, Mehserle could be found guilty of voluntary manslaughter if believed he was in “imminent danger” and if he believed that he had to use deadly force to protect himself, but that “one of these beliefs was unreasonable.” Presumably, jurors concluded that Mehserle had a reasonable belief that he was in danger.
Up Next: Mehserle’s Sentencing
Mehserle will be sentenced by Judge Perry on August 6. He spent last night in the Los Angeles Men’s Central Jail, where he was taken after he was handcuffed and escorted from the courtroom. Because of the gun-crime sentencing enhancement, he faces anywhere from five to 14 years in prison, though he can also petition to be let off with just probation time.
However, the defense will likely contest the seeming internal contradiction in the verdict. The jury somehow believed both that Mehserle was reckless rather than deliberate in his actions and that he acted intentionally when he used his firearm. It’s a strange conclusion, though perhaps not nearly as confusing as the conclusion that Mehserle reasonably feared Grant presented a mortal threat while laying face down, under a fellow officer’s knees and unarmed.
Photo: Hatty Lee (homepage)