LOS ANGELES — Not long after the verdict against former BART police Officer Johannes Mehserle was announced Thursday, confusion over its meaning and implications began.
In finding Mehserle guilty of involuntary manslaughter, the jury also concluded that the 28-year-old is guilty of a gun enhancement, immediately raising questions among legal scholars about whether that enhancement contradicted the jury’s primary verdict.
How Los Angeles Superior Court Judge Robert Perry chooses to answer those questions when he sentences Mehserle later this summer will determine if Mehserle receives a lenient punishment of felony probation, a serious sentence of 14 years in state prison or something in between.
“It leaves us with a wonderful amount of legal motions,” said Laurie Levinson, a professor at Loyola Law School in Los Angeles. “This has now become a legal issue that the judge has to deal with.”
The confusion centers around the legal definition of the gun enhancement, what lawmakers intended when they added the charge to the state’s criminal codes and how the jury was advised to interpret the law when it was sent to a backroom to deliberate the case.
The gun enhancement law was added to California’s penal code in an effort to more severely punish criminals for using guns when they commit crimes. The law allows prosecutors to seek harsher punishments against defendants found guilty of using a gun while committing a felony.
By its definition, the gun enhancement states that a person should be found guilty of the crime if they “personally and intentionally discharged a firearm” while committing a felony.
Had the jury in the Mehserle case found the former officer guilty of second-degree murder or voluntary manslaughter, confusion over the gun enhancement would not exist because both felonies would require the jury to find that Mehserle knew he had his gun in his hand when he shot Oscar Grant III in the back Jan. 1, 2009.
But the jury’s conviction of Mehserle on involuntary manslaughter has created some confusion regarding the gun enhancement, because involuntary manslaughter, for the most part, suggests the jury believed Mehserle thought he had his Taser in his hand when he pulled the trigger.
If the jury believed Mehserle did not know he had his gun in his hand, it would not be logical to convict him of intentionally firing a gun, legal experts said.
“There could be a legal argument that the gun enhancement doesn’t apply to the conviction,” said Michael Cardoza, a Northern California criminal attorney. “The judge could stay the enhancement charge.”
Mehserle’s defense attorney, Michael Rains, said Friday he will make that argument later this year when Mehserle is sentenced.
Although Perry scheduled the sentencing for Aug. 6, Rains said he requested and received approval to have the sentencing postponed to give him more time to research the legal implications of the jury’s decision.
A new date for sentencing has not been set, Rains said.
“The issue that jumps out is that the jury had come to the conclusion that Johannes did not intentionally pull out and fire the firearm,” Rains said. “But of course, the enhancement by its very nature says that he intentionally fired his firearm. It’s a dramatic inconsistency from the verdict.”
Rains said he believes the jury also was confused about the gun enhancement charge because it was the last question jurors asked the court before reaching their verdict.
About 50 minutes before announcing it had reached a decision, the jury asked the court to define the gun enhancement charge.
Should Perry agree with Rains, the judge has the option of not enforcing the gun enhancement and sentencing Mehserle on only the involuntary manslaughter conviction. Such a decision could result in Mehserle receiving, at the least, a sentence of felony probation.
“Some people, including myself, believe (the judge) can do felony probation,” said Edward Steinman, a criminal law professor at Santa Clara University School of Law. “I do not think the gun enhancement applies.”
While many legal scholars have focused on the definition of the gun enhancement to raise questions about its use in the Mehserle case, others said the focus instead should be on the instructions jurors received before they deliberated the case.
In those instructions, the jury was told that in order to find Mehserle guilty of a gun enhancement, they would have to conclude only that he “fires a weapon.”
And that weapon could be a Taser.
“Once you dig deeper into the jury instructions, the gun enhancement is consistent with the verdict,” said Jim Hammer, a former San Francisco homicide prosecutor. “All the instructions told them to do is to find that he fired a weapon.”
Hammer said the jury could have concluded that Mehserle intended to fire his Taser and as a result found him guilty of the enhancement.
Nevertheless, most are in agreement that Perry will most likely keep the gun enhancement in place and force an appellate judge to make a decision on whether it should apply to the case.
“Judges are usually loathe to overturn a jury’s verdict,” Cardoza said. “He may just leave that to the appellate court to decide.”
In addition, many said they believe Perry will not go easy on Mehserle when he pronounces a sentence.
Those who believe the judge will sentence Mehserle to a stint in state prison pointed to Perry’s decision to immediately place the former officer in jail rather than allow him to remain free on bail pending the sentencing.
“If I had to predict, I think the judge will bend over backward to treat Mehserle at least as harshly as someone else or even more harshly,” Hammer said. “What the judge would want to avoid the most is the appearance that he is giving Mehserle special treatment.”
Be the first to comment