UPDATE 4:04pm ESTEx-BART cop Tony Pirone was called up to the witness stand this morning. Stein has gotten Pirone to admit that the four people Pirone pulled off the BART train that night were not a real threat, and that if they were a real threat, Pirone’s actions that night didn’t indicate that they were. Pirone, however, is a much more obstinate witness than Domenici, much less prone to being caught oversharing or letting his nerves show.
Yesterday was productive for the prosecution, now in its fifth day of presenting the case. Alameda County Assistant District Attorney David Stein made real progress in challenging the defense’s narrative that Oscar Grant and the other men on the platform that night were difficult to control and that the use of force on the police’s part was necessary and justified.
The day’s real drama started just before lunch. Because Stein hasn’t released his witness list to the public and both sides have been gag ordered by Judge Robert Perry, it’s hard to know who’ll be called up to the stand on any given day. Yesterday, it turned out to be Marysol Domenici, a fired BART cop who was one of the first to respond to the call at the Fruitvale BART station that led to the shooting of Oscar Grant on New Year’s Day 2009.
Domenici is the person who famously said during a preliminary hearing in 2009 that Oscar Grant would still be alive if he and his friends had just listened to the orders they were given by BART cops that night. Under lengthy questioning yesterday, she jousted with Stein in an effort to hold up that assertion.
"I think it was fairly obvious that she continued to evade questioning," Cephus Johnson, Oscar Grant’s uncle told ColorLines after court adjourned for the day. "She would see things in the videos that we did not see, and did not remember things that had actually occurred. That in itself leads me to believe that what she is saying is fabricated."
As her testimony began, it quickly became apparent that Domenici, who was just fired from the BART police force in March, was going to be a tough witness. Despite three sworn statements she’d given after the night Grant was killed, multiple videos of the incident and her own patchy memories, it was hard to get any information about the night from her.
"Did you ever attempt to exaggerate the conduct of the people on the platform to make it appear that officers were in more danger than they were to justify the shooting of Grant by Johannes Mehserle?" asked Stein. Domenici said she had not.
But over the course of four hours of stop and go questions, Stein was able to poke holes in Domenici’s claims that the men on the platform that night were hard to control.
Stein was able to prove by showing eyewitnesses’ cell phone videos from that night that Oscar Grant and his friends were compliant when Domenici was dealing with them and did not resist her orders. Stein highlighted a frame of the video that showed Grant raising his arm to hold back his friend Jackie Bryson during Bryson’s interactions with Domenici.
Stein also was able to show that contrary to Domenici’s testimony that when she arrived on the BART train platform there were "forty to fifty people" streaming out of the open train doors onto the platform, there were in fact none on the platform when she arrived. "You don’t see what I saw though," Domenici said. "This [BART surveillance] video doesn’t show what I saw. People standing inside the train … I think of the train as an extension of the platform."
Multiple times, Stein would ask her to visually confirm that the video he was about to play referred to a period of time she had just been speaking about, and Domenici, flustered and nervous, would instead rush to explain her motivations and the reasons for her actions in that moment, forgetting the question altogether. Once, Stein read Domenici a selection from the transcript of one of her sworn statements and asked Domenici if that was true to her memories, and Domenici said: "Well, if it’s in there then I guess it is."
Up until today, it seemed as if the Michael Rains-led defense team of Johannes Mehserle had been dominating the court proceedings. On Tuesday during his cross-examinations, Rains had been able to sweep some of Stein’s witnesses away from him by making compelling arguments for why Oscar Grant’s death, while unfortunate and tragic, was purely accidental.
Between the two of them–Stein, the Alameda County ADA, and Rains, the former attorney for Barry Bonds–Rains is the much more dynamic actor. He’ll gesticulate wildly, use poetic language, take big strides around the courtroom, demonstrate maneuvers–the proper way to pull out a gun, for example. But David Stein keeps his language plain, his arms at his side, his tone of voice calm and gentle, and stays behind the designated podium.
Yesterday morning the prosecution wrapped up expert testimony from Sgt. Eugene Wong, a BART training officer, and Sean McCann, a former Berkeley police officer who has taught defensive tactics to police officers and David Chlebowski, a BART police patrol sargeant. Chlebowski confirmed dates of multiple trainings Mehserle had received in how to properly handle his gun, a Sig Sauer p226.
The morning’s big surprise came when, during cross-examination, Rains brought up the fact that McCann himself had been involved in an incident as a Berkeley cop when he’d unknowingly pulled his gun on a suspect. David Stein was able to recover during his re-direct, but just barely, by proving that the circumstances were very different: McCann was a lone officer responding to a dispatcher’s call about a violent felony. He ended up having to chase a man down an alley, where they fought before McCann realized he’d drawn his gun on his suspect.
Unlike Mehserle though, McCann didn’t shoot. Court resumes tomorrow.