Johannes Mehserle, the ex-BART cop who shot and killed an unarmed black man named Oscar Grant while he lay face down on a train platform, asked for a retrial on Friday afternoon, Bay Area Fox affiliate KTVU reports. 

Mehserle was convicted of involuntary manslaughter this summer by a Los Angeles jury after a four-week trial. He faced second-degree murder charges for killing Grant on New Year’s Day 2009.

Mehserle’s defense attorney Michael Rains argued that the Alameda County district attorney’s office misled jurors when prosecutor David Stein told jurors that there had never been an incident of Taser confusion that had led to a suspect’s death. Much of Mehserle’s defense rested on the claim that he accidentally pulled out his Sig Sauer gun when he meant to pull out his Taser, and that he never meant to kill the 23-year-old father that night.

“Five times Mr. Stein told the jury that in a million Taser draws, an accident like the one Mehserle claimed had occurred here had never happened,” Mehserle’s defense wrote in its legal filings. “The DA placed particular emphasis on the color, asking the jurors why the manufacturer made the Taser yellow, and then answered his own question: ‘They make it this color so that the officers can distinguish between the two.” Rains said that in 2008, a Kentucky police officer accidentally pulled and shot his gun when he intended to Taser a suspect. Mehserle’s defense said that for at least one juror, such information might have changed the person’s mind about whether to convict.

Mehserle is set to be sentenced on November 5th, and faces a prison sentence from five to fourteen years because of a gun enhancement charge jurors added, or as little as two to four years for just the involuntary manslaughter conviction alone. Los Angeles Judge Robert Perry could also let Mehserle off with just probation, too. Perry will rule on November 5th on Mehserle’s motion for a retrial. Mehserle is currently being held in a Los Angeles county prison.

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