Huge Brass Balls and A Burn In The Bay: BART Shooting Verdict

Sundown will be bouncing in off the water soon. There is probably a false lull except on the arterials leaving. But there is talk of a burn by the bay tonight. A city on flame from the ill will between the black and the blue. The verdict is, inexplicably, involuntary manslaughter in the Oakland Bay Area Rapid Transit subway execution of young Oscar Grant by cop:

A jury found former BART police Officer Johannes Mehserle guilty today of involuntary manslaughter in connection with the New Year’s Day 2009 shooting of an unarmed train rider, finding that he had acted with criminal negligence when he fired a single shot into Oscar Grant’s back at the Fruitvale Station in Oakland.

Within minutes of the verdict being read, the city was preparing for the the slow burn to lead to explosion:

3:30 p.m. City asks residents/merchants to prepare for possible violence

Police are advising residents to park cars in garages or a secure location if possible. Many streets in downtown are being closed off.

Residents and merchants should remove or secure large trash cans that are on the street. To report crimes in process, call 911 or 510-777-3211 from a cell phone.

There is reason for concern. The facts are incendiary. Kevin Drum hit it pitch perfect:

Of course, this understates the case a wee bit. Mehserle, along with several other BART cops, had Grant pinned face first on the ground when he very deliberately pulled out his gun and shot Grant in the back. Mehserle’s defense is that he meant to pull out his taser but mistakenly pulled out his gun instead. This is, needless to say, pretty hard to accept, and there’s little question that there’s a jury anywhere in the country that would have bought this story from anyone who wasn’t a police officer. You can judge for yourself in the cell phone video taken by a witness (the clearest view starts around the 1:45 mark).

I hardly even know what to say about this. I wasn’t in court and I wasn’t on the jury, so I didn’t hear all the evidence. But for chrissake. Look at the video. Mehserle didn’t look confused and modern tasers don’t feel much like service revolvers. And it’s not as if he was acting under extreme duress. At most there was a brief and perfunctory struggle, after which Mehserle calmly raised himself up while Grant was pinned to the ground, drew his revolver, and shot him.

It really is pretty much exactly that. Oakland knew. They knew from the first second. Now their justice has been taken by a jury with no blacks. Down south in Hollywood. Taken as blatantly as Oscar Grant’s life.

On a corollary, you have got to admire the balls on Mehserle’s attorney, Michael Rains, who talked his client into trying to pull back the manslaughter lesser included charges from consideration by the jury and send them to deliberate up or down on second degree murder.

Legal experts called the ruling a victory for the prosecution. The defense had sought to rule out the manslaughter counts, but Judge Robert Perry said jurors – who are scheduled to hear closing arguments today – had enough evidence to consider them in connection with the shooting of unarmed train rider Oscar Grant.

“The defense wanted all or nothing, betting that the jury would not find him guilty of murder,” said Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles. “This gives the jury a compromise position.”

Yeah, that is the play, but it is a tad more bare knuckles hairy than that sterile explanation. See, a client doesn’t make that decision without some, um, input from his lead defense lawyer.

That’s a big time play. Because if you misread the jury (and whoo boy is that easy to do; juries are fucking loopy), and if they don’t like your guy or you case as well as you thought, you just walked your client head first into a top count conviction for second degree. Probably a lot less tense when your client is a cop. Being tried in LA for shooting a black kid in Oakland. But still…

Guess the prosecution didn’t think the jury would return on second either, because they fought tooth and nail to keep the lesser includeds in the jury verdict set. And that is what the court did, so Mike Rains did not have to stand in the well of the court next to his client and wait. Wait for the jury to come in. Wait to see if your move to put your client’s ass on the big line for the top count, all or nothing, was genius or wanton malpractice. Wait for the jury to get seated. They don’t look at you as they file by on their way to the jury box when returning with the verdict. They know and you don’t. And they will not risk giving it away by making eye contact. A procession of twelve druids. It is eery silent.

Then you wait as the judge and clerk go through the formalities for the reading of the verdict. It takes forever. It is absolute hell. But today was a good day for Michael Rains and his client Mehserle. But a bad day for the City of Oakland. Now the night comes.

  1. Teddy Partridge says:

    From tonight’s paper:

    The confrontations were quick: At about 5:30 p.m., protesters surrounded police officers at 13th and Broadway and at 12th and Broadway, pelting officers with rocks and bottles and pulling down police barricades. Police quelled the disturbances quickly.

    A large, angry mob then formed and blocked a bus near 12th and Broadway. When a police car rolled in to move the protesters out of the way, the car was surrounded, and as it backed up it apparently ran over a woman’s leg by mistake. The woman, who in her 20s and reportedly deaf, fell to the ground and lay in the crosswalk surrounded by a crowd. She was later able to stand up.

    The standoff between police and protesters intensified moments later as riot police lined up at 11th and Broadway. Officers in riot gear blocked the street as members of the crowd yelled and swore.

    Nearby, in front of City Hall, a separate group of ministers and community leaders set up their own event with loudspeakers.

    Read more:

  2. Jeff Kaye says:

    WTF was with that jury? No African-Americans, but still… you can see the whole execution on video. I don’t care what color/race/ethnicity you are, how can anyone believe this was not at minimum voluntary manslaughter or worse is beyond me. It’s all about protecting the monopoly of “legitimate” violence by the police, b/c saying this was involuntary manslaughter states that it was a mistake in the usual run of duty. Watch the video (I think the second view later in the video shows the murder most clearly), and wonder how anyone could think differently.

    Thanks for the write-up, bmaz.

      • BoxTurtle says:

        It is very difficult to prove bias in jury selection to the point where the judge would require a new trail or a new jury.

        As for getting away with it, lawyers are perfectly aware how to stack a jury without having to worry about legal issues. If I were the defense lawyer, I’d ask the jurors I didn’t like if they’d had a bad experience with the police or knew someone who did. Most blacks in L.A. would answer yes to that question. I then beat the point that they would be biased against the BART cop and try to get them dismissed for cause. Or I use a challenge.

        Even if my reason for challenge is a desire to keep blacks off the jury, as long as I can provide a legit reason other than that I’m fine.

        Boxturtle (Blame the prosecutor for allowing the defense to set the jury)

          • hotflashcarol says:

            Even if you try to give the jury the benefit of the doubt (which is pretty hard), I am appalled that there were able to come to that conclusion after less than a full day of deliberating. It sure does seem like a compromise verdict – something that will piss off just about everyone, and they don’t have to feel guilty about either an acquittal or a murder conviction. Very demoralizing for Oakland. Now we wait for the sentencing. Maybe the judge will take it a little more seriously than the jury seems to have taken it.

      • graniab says:

        It depends on the geographic area. I am not familiar with the LA area so I am not sure which counties fed into this potential jury pool. I have only twice been called as a juror in the San Francisco Bay Area and both times, while the mix of potential jurors were diverse, there were only two African-Americans, both older women, who asked to be excused because they were caring for their grandchildren.

        • hotflashcarol says:

          I was really shocked that the judge and/or attorneys accepted a juror with vacation plans, and that deliberations were suspended so someone could go to a medical appointment. Can it really be that hard to put together a jury in a place as big as LA?

          • bmaz says:

            There were 13 full days of testimony alone, and jury selection and openings, closings and jury instructions on top of that. That is a lot of court days for a trial, which means that with non jury days the court has to take to do its regular business, weekends, holidays and other time out, the trial stretches out well over a month. Yes, finding good jurors for something like that IS hard. And the most courts are very good about allowances for critical medical appointments etc. if the need is established. As to the juror who left, that possibility was probably known long before it happened and the court, after consultation with the attorneys, decided to leave her on and see if they could reach a verdict before she had to leave.

            • graniab says:

              Added to that mix is most people are paid by their employer only for up to ten days of jury service – so this case went way over.

            • hotflashcarol says:

              I understand that; I’m self-employed and I would have a very difficult time being a juror for that long. My impression (which could be wrong) is that jury selection seemed remarkably quick for what was clearly going to be a long and inflammatory case. Doesn’t the judge have quite a bit of discretion in terms of excusing people who might not be able to make that kind of commitment?

          • graniab says:

            Yeah that was a puzzle to me too! Sounds like the prosecution wanted this over fast. I’ve seen jury panels where if someone had vacation plans -they were still seated but were reimbursed for their loss. Furthermore if they had really wanted African-Americans on the jury wouldn’t they have asked for more and more panels to be seated until they found one!

  3. Teddy Partridge says:

    Situation escalating, per local newscaster who broke into So You Think You Can Dance. Riot police, a Foot Locker broken into, hundreds of protesters on 12th street. Standoff, protest declared an unlawful assembly, moving the line up Broadway to 14th.

    Breaking windows, throwing bottles at cops, spraypainting OSCAR GRANT on lots of buildings. 200-300 officers have pushed the crowd out of the area where the television cameras are. Several arrests.

  4. Teddy Partridge says:

    Oakland PD appears to have the situation under control.

    Back to regularly scheduled programming.

  5. fatster says:

    Thnx, bmaz, for putting it out there. Most disturbing that the repetition of justice denied continues, on and on and on.

  6. Balki says:

    I am particularly bothered by the defense that Mehserle thought he was drawing his taser instead of his gun. The media has no problem pointing out how unlikely it is that he could have mistaken one for the other, but in so doing they seem to imply that, had he actually pulled out his taser and used that instead, everything would have been fine. The victim was on his face with at least two officers on top of him, and was clearly no danger to anyone. Even the taser would have been excessive at that point.

  7. Loo Hoo. says:

    Hope we get word from a juror on this decision. I guess none could believe their lying eyes.

  8. bayofarizona says:

    The President can execute whoever he wants and cops can kill whoever they want.

    They hates us for our freedoms.

  9. JohnJ says:

    juries are fucking loopy

    I used to have long conversations with a legal type at the blues bar I lived in for a while.

    The one thing he said stuck with me: the US jury system is irreparably broken. He cited the way the juries are chosen and the ridiculously bogus “expert witnesses”. (Indeed, the most egregious civil court travesties I have followed personally involved juries chosen for their ignorance of the technical issues being fed complete bullshit by “experts” that made stuff up).

    Interestingly, I was later told by one of his former employees that he was a former Judge that now (then) argues cases before the state Supreme Court (he wouldn’t tell me). Pretty good source.

    • bmaz says:

      I actually think that, on the whole, the jury trial system works shockingly well and that juries come up with the right result most of the time. Now just how they get to that result may be another matter. I used to religiously go talk to them and it invariably went like this “well, you found A and B, but not C; obviously that was because of X and Y legal factors….”. “Oh no, we didn’t even think about that, it was all because of Z” Where Z is something loopy. But they got the result right. This is why I stopped talking to them; it will drive you nuts.

  10. Leen says:

    “But today was a good day for Michael Rains and his client Mehserle. But a bad day for the City of Oakland. Now the night comes.”

    A bad bad day for truth and justice. Christ all mighty all you have to do is watch the video. Mehserle shot the kid. Fat white fucking killer!

    What a message. Shut the fuck up black kids, get on the ground, put your hands up in surrender and we will still shoot your ass. The fat white fucks still rule here and don’t you forget it. Clearly the message

  11. BoxTurtle says:

    I bow to the defense lawyer. To get your client off with INVOLUNTARY manslaughter with that video entered as evidence required careful jury selection and a case presentation little short of miraculous.

    Boxturtle (And people wonder why there are so many lawyers in hell)

  12. harpie says:

    The Idea of Justice is a dream;…

    A Dream Deferred

    What happens to a dream deferred?

    Does it dry up

    like a raisin in the sun?

    Or fester like a sore–

    And then run?

    Does it stink like rotten meat?

    Or crust and sugar over–

    like a syrupy sweet?

    Maybe it just sags

    like a heavy load.

    Or does it explode?

    Langston Hughes

    • bobschacht says:

      The Idea of Justice is a dream;…

      The Idea of Justice is a vision– a goal of what ought to be. Like many visionary ideas, the reality often falls short of the ideal, and we are presently in such a state. But this is no reason to give up on the idea; it is all the more reason to continually publicize wherever we are falling short of the ideal, appealing in particular to the visionary statements about justice that call for the best in us and our government.

      Bob in AZ

  13. BoxTurtle says:

    OT: Please forgive any missing letters or spaces in my posts for the next few days. I have a new ergo keyboard that bends up in the middle and it’s causing me to hit some keys too softly at times.

    Boxturtle (5 corrections in the above note. I hope I get used to this soon)

    • papau says:

      my laptop keyboard died so I have a Flexible keyboard that lies on top and off the sides – so my bad typing and thinking a word but forgetting to type it has the new challenge of hitting soft rubber correctly – so I really really understand!

      Curious on your take on the “facts” (taken from wiki and shown below):

      Oscar Grant had been celebrating New Year’s Eve with his friends on the Embarcadero in San Francisco, and was returning to the East Bay in the lead car of a BART train bound for Fruitvale. BART offered extended service and a special “Flash Pass” for the New Year’s Eve holiday. At approximately 2:00 a.m. PST, BART Police responded to reports that up to 12 people were involved in a fight on an incoming train from the West Oakland BART Station and the participants were “hammered and stoned.”

      Officers removed Grant and several other men suspected of fighting from the train and detained them on the platform. Grant and another man ran back onto the train after being detained, but Grant voluntarily returned to the platform when officer Tony Pirone grabbed the other man and dragged him from the train. Pirone handcuffed Grant’s friend, angering other riders. Pirone then lined up Grant and two other men against the wall. According to Mehserle’s motion for bail, Pirone confirmed with the train operator that the men detained were involved in the fight. When five other officers, including Johannes Mehserle, arrived at the Fruitvale station, they found the situation chaotic. Mehserle’s partner on duty, Officer Jon Woffinden, said the “incident was one of the most frightening he had experienced in his 12 years as a police officer.”

      Motion for bail, citing the police investigation, also stated:

      “Officer Pirone directed Officer Mehserle to arrest two of the individuals who had not been handcuffed. One of the individuals to be arrested was Oscar Grant, and Officer Pirone’s direction to Mehserle was overheard by Grant. Grant, upon hearing that he was under arrest, attempted to stand up, but was forced to the ground face first. Both Officer Mehserle and Officer Pirone attempted to restrain Mr. Grant and to seek his compliance by ordering him to put his hands behind his back to be handcuffed, but Mr. Grant resisted and refused to submit to handcuffing. Officer Mehserle was pulling at Mr. Grant’s right hand and arm, which remained under his torso near his waistband. Mr. Grant had not been searched by any officer for weapons, either prior to his initial detention or after being seated near the wall.”

      A cell-phone video broadcast on local television station KTVU on January 23 showed what appeared to be Pirone rushing towards Grant and punching him in the face several times two minutes before he was shot. Grant’s family alleges in their civil claim against BART that an officer threw Grant against a wall and kneed him in the face. Pirone’s attorney stated that Grant provoked Pirone by trying to knee the officer in the groin and by hitting Officer Marysol Dominici’s arm when she attempted to handcuff one of Grant’s friends. Witnesses testified that Pirone was the aggressor during the incident. Burris also disputes Pirone’s account and claims that Grant and his friends were “peaceful” when the train stopped. Grant then raised his hands while seated against the platform wall. Additional footage from a cell phone was presented in court showing Pirone standing over the prone Grant before the shooting and yelling: “Bitch-ass nigger.” Pirone and his attorney say he was parroting an epithet that Grant had said to him.

      BART police had been on edge before the shooting because two guns had been recovered in separate incidents along the rail line over the previous hour. Immediately before he arrived at Fruitvale, Mehserle was involved in an incident at the West Oakland station where a teenage boy with a semi-automatic pistol had fled from police and jumped off the station platform, breaking several bones.

      • hotflashcarol says:

        I live in Oakland, three blocks from the Fruitvale BART. I didn’t live here in 2009 but over the past few months I have educated myself as to the “facts” of this case and the opinions of people in the community. I did a diary on this a couple of days ago (only comment was from a cop’s wife who was clearly responding to things outside the scope of my diary). Anyway, people here believe Tony Pirone should have been charged with something too, since it’s so clear that he escalated the situation, and that BART cops don’t need to be armed. They have quite a propensity for excessive force; after the Grant murder, they still couldn’t keep their tasers holstered.

        Last night’s looting was a sad joke – people broke into Foot Locker and threw shoes into the street while the police watched from a block away, and somebody even looted Whole Foods. (I suspect that has little to do with Oscar Grant.) I watched the coverage for hours last night and saw mostly white anarchist kids arrested. All it did was reinforce negative stereotypes about Oakland and dishonor Oscar’s memory.

        • papau says:

          That was my gut response also – white kids feel good about having a riot and black folks get the reputation of their community – and Oakland’s reputation – shredded.

          In the 60’s the riots had extremely major reasons – I told the CEO of the Pru at the time (I was young and stupid and new to management and thought I was easily re-employed if they thought I was out of line), as he complained about the Broad Street riot being only a mile from the corporate head quarters, that there were grievances that companies like ours were ignoring (Pru supported heart care at local hospitals after a few senior exec’s heart attacks – but little else in Newark), and that the MLK death was not a straw but a ton of wood on top of a mass of prior wood that was already lit and now burning out of control. That I understood. But a riot over getting 15 years instead of 30 years? It was as if whites had rioted over the OJ not guilty verdict (and that would have been more justified).

          • hotflashcarol says:

            I agree. On any given day, I think there are sufficient reasons for the people of Oakland to riot – and for that matter, the people of Detroit and any other city crumbling under the corporatist policies of the past 30 or 40 years. And I would not have blamed people for wanting to burn shit down after that outrageous verdict last night. But what really happened was that the police far outnumbered the citizens and managed to shut down any meaningful response by the people of Oakland who needed a place to gather and grieve, then looked the other way while a few little disaffected “anarchists” used this opportunity for their own agenda. I’m all for protesting the G20 but that’s not what this was about.

        • graniab says:

          I agree re your looting comment, I feel there was minimal damage done in Oakland last night, considering the level of anger (baby stuff compared to what English lager louts do after their team loses). Whatever we feel about the outcome – the burden is on the prosecution to prove their case. Rains is a good lawyer and I am sure that Mehserle’s testimony in his own defense touched the women jurors who after all are not Alameda County residents. He’s a big dumb lug but you can be sure that Rains hammered home to the panel that he could be anyone’s son/brother/husband who made a tragic mistake. The outcome would have been different had the trial stayed in Alameda County. You further raise very good points about Pirone’s involvement.

          • bmaz says:

            Yes, and let’s be honest, the Alameda DA O’Malley’s office and her deputy Stein did not pursue the prosecution with the same zeal that they would have if Grant had killed a cop. They have to work symbiotically with their local cop shops, and that is just how it is.

            • graniab says:

              Agreed – in essence the Judge gave the prosecution a gift when he ordered jury to hear instructions for manslaughter – Rains had presented only two options murder or acquittal – so obviously the Judge thought that the prosecution had not met their burden.

            • hotflashcarol says:

              My suspicion is that both prosecution and defense thought they had it made with just the first-degree murder charge. They knew the likelihood was that the jury would not convict if that was their only choice.

          • hotflashcarol says:

            It might have been different had they known that this “big dumb lug” also allegedly beat up another African-American man. I don’t know if the prosecutor failed to bring it up or whether the judge kept it out, but in any case, Mehserle has been accused of brutality more than once, which makes this look a little less like a “mistake.”

            • graniab says:

              I suspect this prior charge was ‘off the table’ as the case was dismissed. Clearly we need to have a civilian review commission to oversee BART police similar to that which exists in San Francisco.

              • bmaz says:

                Yeah, that is a pretty easy call on a proper motion in limine. Unless he had a conviction for it, or there was a seriously bad multiple repetitive history, that just is not getting in evidence.

  14. DWBartoo says:

    Thank you, bmaz.

    Juries are indeed, “fucking loopy”.

    However, they are merely playing their “part” in a legal system whose loops you’ve been well describing for many moons.

    The myth that those who “represent” the “law”, from “the cop on the beat” to all the “officers of the courts” are fair and honorable, and always, above reproach or question, remains untarnished, at least in the eyes of many who “practice” the law … because such questions as you raise have no standing … “looking forward”. You have recently discussed the “case” of a certain judge who dismissed a certain “moratorium”, when a rational and reasonable observer would clearly consider that the judge had somewhat conflicted “interests” and recusal should have been his only response.

    This business of deference to the “practitioner” of the law at the “moment” in “question” is absolutely necessary to the honor and integrity of the legal system itself.

    Should questions be allowed, then where would it stop?

    Why, even the behavior of a President or a Vice President or other IMPORTANT muckety-muck might become subject to question.

    Is it not enough that the law claims (it is always those who currently “practice” the law who do the claiming) to be on the up and up, to be primarily concerned with those quaint notions of truth and justice?

    That it is not so at all, is no surprise, really, to any of us when we consider the true purpose, as opposed to the stated purpose, of the law.

    That we find this disappointing is to our credit, but, frankly, the “law” doesn’t give a damn, and until “it” does, that primary function of the law, today, will continue, as it has been, in the favorite words of many attorneys …”ever thus.”

    Change would be nice, and it’s about time.

    Yet, it is primarily about courage. And humanity.

    So, bmaz, thank you, most sincerely, for yours.


  15. polizeros says:

    With the enhanced gun charges, Mehserle will do 5-14 years. California’s sentencing laws are severe and not open to interpretation. Judge’s have little if any leeway and can not override the enhanced charge.

    The Alameda County DA was quoted saying he will do at least the 5 year minimum.

  16. b2020 says:

    The man was judged by a jury of his peers.

    The worse a common crime, the worse the peers.

    Say what you will about the revolutionary concept of jury trial, but it is uttelry democratic. Yes, nullification does challenge the concept of “The Law” as sacred and immutable, and yes, the worse the people, the less justice, decency or common sense, but that is democracy. The real question is, is the open society stable, sustainable, and can it be reformed?

  17. alank says:

    It’s not in good form for Drum to pontificate about what he did not follow. Surely, there are reporters who could share the details of the trial.

  18. Mithras61 says:

    Isn’t that his taser on his LEFT hip? In most departments, it is standard practice to carry your taser on the opposite hip from your pistol to avoid this very thing, and it appears to me that Mehserle is in compliance with that practice.

    I don’t see anything in the video that would justify tasering Grant either, but even beyond that, I don’t see how he could be grabbing something from the right side when he supposedly meant to grab from the left. His claim is extraordinarily difficult to believe. It would be sort of like accidentally turning left when you meant to turn right at a 4-way stop.

  19. buckinnm says:

    My comment is not about the jury system but about the fact that the author does not know the difference between a revolver and an automatic pistol which police carry today. Misstatements and misidentification distort reality to the point that it becomes hard to decipher the authors intended statement.

    • bmaz says:

      Couple of things. Kevin’s “intended statement” is crystal clear; it is that there is a distinct difference between the feel of a Taser and that of of a service weapon, and that is entirely true. They are also standardly carried in quite different locations on an officer. Above and beyond that, however, if Oscar Grant died from Mehserle’s action, which he did, then second degree (and, to be honest, felony murder), attached the second Mehserle reached for excessive force of any kind. Even if Mehserle intended to reach for his Taser, that was an illegal act under the circumstances when Grant was in custody, face down on the ground and no threat whatsoever. Mehserle intended to use illegally excessive force and Grant was killed. End of story.

  20. Gitcheegumee says:


    Family Says Nephew of Justice Clarence Thomas Was Beaten, Tazed at West Jeff Hospital

    Source: Chicago Tribune

    MARRERO — Family members of Derek Thomas, nephew of U.S. Supreme Court Justice Clarence Thomas, are alleging that the younger Thomas, was punched and tazed when he was admitted to West Jefferson Hospital Thursday.

    The family says the use of the taser caused Thomas to have a seizure.

    According to at statement from the family, Derek Thomas, who is epileptic, refused to put on a hospital gown and tried to leave his examination after a possible suicide attempt. They say security “punched him in his lip, pulled out more than a fistful of his dredlocks and tasered him to restrain him.”

    Read more:

    NOTE: West Jefferson is a parish outside New Orleans,where the city of Marrero is located.

    • hotflashcarol says:

      Any response yet from Uncle Tom Clarence Thomas? Something along the lines of, his nephew should not have argued with those nice authoritays?

  21. greenhouse says:

    State sponsored terrorism, like Israeli commandos murdering unarmed civilians on a boat bringing aid to those trapped in gaza. Nothing more, nothing less. As long as it’s got the power and imprimatur of the state and media to demonize the victims, (god forbid you’re black, brown or muslim), it’s justifiable homicide. Of course, it also helps to have no blacks, browns or muslims on the jury either. My friends, the cards are stacked. No need to scratch your head anymo’ in befuddled, powerless anger and indignation. Call a spade a spade, no pun intended neither.