LOS ANGELES — To a lay person watching the daily proceedings of the murder case against former BART police officer Johannes Mehserle, it might appear as if Mehserle’s defense team is slowly gaining an advantage as it moves toward opening statements this week.
A number of pretrial rulings by Los Angeles Superior Court Judge Robert Perry have been made in favor of the defense, angering the family of Oscar Grant III, of Hayward, who was shot and killed by Mehserle on the Fruitvale BART station platform early New Year’s Day 2009.
Last month, Perry ruled that the jury could learn that Grant had a scuffle with the San Leandro Police Department during which he resisted arrest. The jury will also learn, Perry ruled, that Grant was a parolee at the time he was shot and killed by Mehserle.
And just last week, Perry once again sided with the defense, allowing Mehserle’s attorney, Michael Rains, to have a video expert testify during the trial about what he sees in the half-dozen videos of the shooting. That expert said he will testify that he saw both Grant and one of his friends try to swing a punch at two officers just before the shooting.
The rulings were criticized by Grant’s family and, before he was covered by a gag order, the family’s attorney, John Burris.
“Our view was that it was irrelevant,” Burris said last month about the motion allowing Grant’s scuffle with police to be entered as evidence in the trial. “We certainly
would have preferred if the judge ruled differently.”
On Monday, Cephus Johnson, Grant’s uncle, also questioned many of Perry’s rulings.
“It appears that we have been getting a lot of disadvantages,” Johnson said outside of the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.
But Bay Area criminal attorneys who are following the trial say they are not surprised by the judge’s pretrial rulings and said that, while those rulings might give the defense a slight advantage, the case is still wide open for interpretation.
“Does it give them a leg up? Certainly,” said Michael Cardoza, a Contra Costa County criminal defense attorney. “But let’s see how the evidence gets in and let’s see how the jury interprets it.”
While the rulings could give the jury a reason why Mehserle thought he needed to use force on Grant, the evidence presented will not discount the videos that clearly show Mehserle firing his gun into the back of an unarmed and prone Grant, the attorneys said.
Mehserle is charged with murder in the case, as prosecutors have argued that he intended to use his gun and shoot Grant. Meanwhile, Rains has argued that his client meant to use his Taser on the resisting Grant but by accident pulled out his gun.
“It’s not a surprise the motions were granted, but Rains is not necessarily winning,” said Darryl Stallworth, a former Alameda County deputy district attorney who now has his own criminal defense firm.
Stallworth said he was not surprised that Perry allowed some of Grant’s past criminal history to be presented to the jury and said it’s not a certainty that the jury will believe the testimony of the defense’s video expert.
“Sometimes, an expert on the other side might end up helping your side,” Stallworth said. “It all depends on how it is presented to the jury.”
For example, Cardoza said, the jury could discount everything the expert said because he is hired by the defense to give analysis.
“It depends on how the jury views the expert,” Cardoza said. “To them, he could be just a hired gun coming into court to say what the defense wants him to say.”
At this point, the attorneys and a jury consultant said, the important task for both deputy district attorney David Stein and Rains is to pick a jury that they believe will help them win the case.
For Stein, that jury needs to be liberal and believe that police officers make mistakes, the attorneys and jury consultant said.
For Rains, the jury needs to have a full trust in law enforcement, they said.
“If I was the prosecution, I would be asking people who are liberal and minorities to serve,” said Howard Varinsky, an Emeryville jury consultant who has worked on a number of high-profile cases. “I would want to try to rehabilitate them and convince them that they can put their beliefs aside and be fair.”
Cardoza said having the case in Los Angeles will allow the prosecution to find the type of jurors it wants.
“You want people who have interacted with the police before,” Cardoza said. “That is why Los Angeles is a good venue for the prosecution.”
Stein and Rains have spent the last several days looking through roughly 100 jury questionnaires that were given to potential jurors last week. Both will return to court Tuesday to begin asking for probative questions of the 100 residents who filled out the questionnaires before selecting 18 to serve as either the 12 members of the jury or six alternates.
In looking through those questionnaires, both Stein and Rains will learn many details of each resident’s life and personal beliefs, ranging from their job and education to their thoughts on gun control.
Varinsky said Stein will have to pick jurors he is usually not accustomed to working with.
“The prosecution usually doesn’t want minorities, as a general rule of thumb, and they don’t want liberals either,” he said. “They are usually fearful of those groups because the minorities might have thoughts about law enforcement from actual life experiences and the liberals are always going for the little guy.”
Perry has said he hopes to have a jury seated by Wednesday and have opening statements begin Thursday morning.
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