Home Bart Police Shooting Attorney for Mehserle says new evidence found, wants new trial

Attorney for Mehserle says new evidence found, wants new trial

Former BART Police Officer Johannes Mehserle photographed by Oscar Grant moments before the fatal shooting. (Courtesy Los Angeles County Superior Court)

The defense for Johannes Mehserle, the former BART Police officer convicted of involuntary manslaughter for the shooting of unarmed passenger Oscar Grant at the Fruitvale BART Station New Year’s Day 2009, has filed a motion seeking a new trial, claiming “newly discovered evidence” supports Mehserle’s case.

The motion, filed Friday and posted Monday to the Los Angeles County Superior Court’s website, includes a statement from a Kentucky police officer who said he shot a man in the back in 2008 because he confused his Taser with his gun, despite the fact that his Taser, the same model and color as Mehserle’s, was in a “strong hand, cross draw position” — the same place Mehserle’s was.

In his statement, Lieutenant William Jones of the Nicholasville Police Department, who said he had 18 years prior law enforcement experience at the time of the shooting, claimed he had “no conscious recollection of making the necessary movements” to draw his handgun from his holster. When he noticed the Taser wires didn’t come out, “I looked in my right hand and saw I was holding my gun,” he said.

The shooting victim, a white male, did not die despite being critically injured. Jones was suspended three weeks without pay, but not charged with a crime. “I was informed that no charges would be filed against me as the case was determined to be a ‘muscle memory accident,’” he said.

Defense attorney Michael Rains says the defense was unaware of the details of this incident until July, after the verdict in Mehserle’s trial.

Rains, who argued at trial that Mehserle confused his Taser and his gun when he shot Grant, argues the statement is evidence demanding a new trial because prosecutor David Stein repeatedly argued at trial that “never […] had any officer” whose Taser was set up the way Mehserle’s was accidentally confused the Taser with a gun.

According to Rains, the prosecution’s closing argument “contains nothing upon which the jurors could have based a finding that Mehserle was criminally negligent other than its argument that the mistaken shooting here was so extraordinarily unlikely because of the color, weight, and holster configuration of Mehserle’s Taser.”

But Grant’s uncle Cephus Johnson questions the validity of admitting this case as new evidence.

“It really doesn’t make sense to call this new evidence because six other [Taser/gun confusion] cases were presented in the trial already,” he said.

Judge Robert Perry, who presided over the trial, will hear the motion for a new trial November 5 in Los Angeles, where the case was moved due to concerns over whether Mehserle could receive a fair trial in the Bay Area. If the motion is denied, Mehserle will be sentenced that day.