The defense plans to question friends of Grant who were detained with him.Another person expected to be called is Tommy Cross Jr., a 20-year-old San Francisco State University student who captured the shooting on his digital camera. Wilkinson and other attorneys who have seen the footage say it is the clearest of the shooting; it has never been shon publicly.
Hearing to give detailed look at BART shooting
such hearings ordinarily are cursory affairs in which prosecutors introduce just enough evidence to persuade a judge to bring a case before a jury, while defense attorneys often decline to call a single witness – saving their strongest material for trial.
But the BART police shooting is no ordinary case. Prosecutors are anxious to show they were justified in making the unusual decision to charge a police officer with an on-the-job murder, something that hasn’t happened in California in at least 15 years.
Defense attorneys are just as eager to knock the case down to manslaughter before it ever goes to a jury. They say Mehserle, 27, fired his pistol at 22-year-old Oscar Grant of Hayward early New Year’s Day while intending to shock the supermarket worker with a Taser stun gun.
Both prosecutors and defense attorneys have issued subpoenas ordering witnesses to appear in front of Judge C. Don Clay in Alameda County Superior Court in Oakland. Attorneys expect the hearing to last at least two weeks.
The hearing was initially scheduled to begin March 23 but was postponed in the aftermath of the shooting deaths of four Oakland police officers. There is still a chance it could be put off, if Mehserle’s attorneys succeed today in having the Alameda County district attorney’s office thrown off the case for trying to question the former officer after his lawyers said he didn’t want to talk.
Largely unseen video
In preparation for the preliminary hearing, attorneys have assembled video of the shooting from several cameras, footage that has been picked apart and enhanced by experts. Much of the video circulated on television and the Internet after the shooting at Oakland’s Fruitvale Station, but some of it has never been shown publicly.
Mehserle’s attorney Michael Rains is also preparing to raise questions about the adequacy of the training that BART officers received last year before they were armed with Tasers, said a source close to the case.
Magnifying the hearing’s significance is a gag order that a judge imposed to try to limit pressure on witnesses and keep potential jurors from developing strong opinions. Prosecutors and defense attorneys have been barred from speaking publicly about their interpretation of the evidence.
“I think it’s going to be a sneak preview of what the defense case is,” said Alison Berry Wilkinson, an attorney for five BART officers, not including Mehserle, who were on the Fruitvale Station platform when Grant was shot. “Because of the gag order, this is their only opportunity.”
“My sense,” said John Burris, an attorney for Grant’s family, “is that Rains is going to use the preliminary hearing to make a public statement.”
Those expected to testify include Mehserle’s partner on the night of the shooting, Officer Jon Woffinden; Officer Tony Pirone, who detained Grant while investigating a reported fight on a train and made the decision to arrest him; and Officer Marysol Domenici, Pirone’s partner.
Friends to be questioned
The defense plans to question friends of Grant who were detained with him.
Another person expected to be called is Tommy Cross Jr., a 20-year-old San Francisco State University student who captured the shooting on his digital camera. Wilkinson and other attorneys who have seen the footage say it is the clearest of the shooting; it has never been shown publicly.
Other footage that may be aired openly for the first time at the hearing includes video from a BART surveillance camera mounted at Fruitvale Station. It shows a Dublin-Pleasanton train pulling in and Pirone detaining Grant and his friends.
Minutes later, after being told he was under arrest for resisting officers, Grant was forced to the ground, prosecutors said. Footage shows Mehserle trying to handcuff Grant, then pulling out his pistol and firing into his back.
Hands behind back
In a court filing opposing bail for Mehserle, Alameda County prosecutor John Creighton wrote that Grant had his hands behind his back when he was shot.
Creighton said he did not believe Mehserle had meant to fire his Taser. He said Mehserle told Pirone minutes after the shooting, “Tony, I thought he was going for a gun.” Police reports indicate that Mehserle said the same thing to a second officer on the night of the shooting.
Wilkinson, though, says enhanced footage of the shooting – including Cross’ video – suggests it was accidental and not a murder.
“The public will have an entirely different view of what happened after the preliminary hearing,” Wilkinson said.
Burris disagreed. Although he said he had not seen Cross’ video, he said other footage shows a second-degree murder.
Mehserle resigned after the shooting and is now free on $3 million bail.
Preliminary hearings are typically shorter than jury trials and impose less of a burden on the government.
To send the case to trial, prosecutor David Stein must convince Judge Clay that there is probable cause to believe Mehserle committed murder – not the proof beyond a reasonable doubt needed for a conviction.
It’s possible the defense will do little more than size up the prosecution’s case and test some witnesses. But Jim Hammer, a former San Francisco prosecutor, said the hearing may take on a “different flavor” because of the intense public interest in the case.
“In 99.9 percent of cases, no one pays attention to the preliminary hearing. There’s no court of public opinion,” Hammer said. “But in this case, the defense has an uphill climb to somehow overcome the public sentiment that their client is guilty.”
Protesters plan to demonstrate outside the hearing, though one veteran Bay Area attorney said that might backfire.
Michael Cardoza, a defense lawyer and former prosecutor, said Rains may argue that such protests are bound to continue at trial, so the case should be moved out of Alameda County to protect jurors from pressure.
Mehserle would benefit if the trial ends up in a more conservative county, Cardoza said, adding that protesters “could get hoisted on their own petard.”
E-mail Demian Bulwa at firstname.lastname@example.org.