The defense for Johannes Mehserle, the former BART Police officer charged with second-degree murder for the shooting of BART passenger Oscar Grant on New Year’s Day 2009, is asking the judge to take away the option for a jury to convict on a lesser charge, while the prosecution claims to have evidence that shows that that the shooting was an intentional act, according to court filings made public this week.
Defense attorney Michael Rains argued in a filing that involuntary manslaughter, the unintentional killing of a human being through gross negligence, is an inappropriate charge given the facts of the case, and should therefore not offered as an option to the jury alongside second-degree murder.
Legal experts characterized the move as a high-stakes gamble. If, after the arguments in the case, a jury is unconvinced that Mehserle is guilty of murder, removing the option of involuntary manslaughter could result in an acquittal. But a jury that would have otherwise convicted Mehserle of involuntary manslaughter, which carries a lesser penalty, could well decide to convict him of murder.
Meanwhile, Alameda County prosecutors asked Judge Robert Perry to permit them to use an alcohol test form signed by former BART Police officer Johannes Mehserle on the day of the Oscar Grant shooting as evidence that the shooting was not accidental.
The alcohol test form, which is attached to the filing, contains a series of checkboxes to indicate the reason for the test, one of which reads “post-accident”, but none of those boxes are checked — instead, “discharge of a firearm” is hand-written onto the form.
Prosecutor David Stein argued that Mehserle’s signature on this form is an admission that the shooting was not an accident. Stein said that the change to the form was insisted on by David Mastagni, Mehserle’s attorney at the time, who told BART Police officials that “this was not an accident. It was an intentional act.”
BART spokesperson Linton Johnson told the San Francisco Chronicle that the “post-accident” box on the form was intended to refer to an accident involving a train.
In other motions, the prosecution and defense disagreed on whether Grant’s status as a parolee should be admissible as evidence before the jury. The defense argued that Grant’s parole status, the conditions of his parole, and his drinking on New Year’s Eve are relevant to showing why Grant might have resisted arrest and therefore given Mehserle reason to use his Taser. However, the prosecution said that the main effect of admitting Grant’s parole status would be to prejudice the jury.
The defense also asked for the Meyers Nave report to BART Police officials on the events leading up to the shooting to be excluded from evidence in the case as hearsay.
Oral arguments on these motions will be heard Friday, May 7 in Los Angeles, where the trial has been moved due to concerns about whether Mehserle could receive a fair trial in Alameda County.