(6/17) — UPDATED 23:36 PDT — LOS ANGELES — Former BART Police Officer Marysol Domenici, whose role in the events leading up to the shooting of unarmed BART passenger Oscar Grant by former BART Police Officer Johannes Mehserle has sparked controversy, took the witness stand Thursday in Mehserle’s second-degree murder trial.
Domenici was one of the first officers to respond to the Fruitvale BART station in the early morning hours of New Year’s Day 2009, working with fellow former BART Police Officer Anthony Pirone to detain Grant and his friends on the platform after reports of an altercation on the train.
Both Domenici and Pirone were terminated from BART Police earlier this year after a third-party review of the incident recommended their firings. Both are appealing the decisions.
On the witness stand Thursday morning, Domenici appeared to have problems giving answers to questions posed by Deputy District Attorney David Stein, who grilled the former police officer about testimony she gave to an Alameda County judge about how volatile the situation at Fruitvale BART was moments before the Grant shooting.
“Did you ever exaggerate the behavior of the people on that platform so as to make it appear officers were in more danger than they were to justify the shooting of Grant by Johannes Mehserle?” Stein asked the former officer.
“No, sir,” she replied.
During preliminary hearings held in Oakland to determine whether Mehserle should be tried, Domenici testified that Grant and his friends ignored orders she gave to sit down on the platform. She told the judge that the shooting could have been prevented if Grant had followed orders from officers.
The prosecution jumped on another statement the former officer gave about Grant grabbing her left arm and holding on to her after she attempted to detain another individual on the platform, Grant’s longtime friend Jackie Bryson.
Domenici testified that her lawyer told her amateur video footage recorded by BART passenger Daniel Liu proved that Grant touched her before he was shot by Mehserle.
When the video in question was played by Stein, it appeared to show Grant’s arm crossing with Domenici’s. But Stein then played footage from another video — shot from a different angle by Karina Vargas — that shows Grant touching Bryson’s arm, not the former officer’s.
After watching the videos, Domenici appeared frazzled on the witness stand. She later reneged on the claim that Grant had touched her.
“I don’t remember his hand at all […] I don’t remember him grabbing my arm,” she told the jury.
She later admitted that the young men on the platform “never struggled with me.” She also said that when she and Pirone drew their Tasers, the young men “calmed down.”
Mehserle’s defense strategy relies in part on the argument that Grant “actively resisted” officers, including Domenici, on the Fruitvale station platform.
Stein also criticized Domenici’s characterization of what she saw when she arrived at the platform.
“You said during the preliminary hearing that about 40 to 50 people came off the BART train and that you felt threatened,” he said. “Do you remember giving that testimony?”
“I saw people,” she responded vaguely.
When Stein played security camera footage of the platform, Domenici can be seen running down an empty platform without anyone walking off the train.
When questioned where the 40 to 50 people were, Domenici first said they could not be seen in the video. She said they were on board the Dublin/Pleasanton-bound BART train.
“When I said the platform, to me the train is an extension of the platform,” she said.
The former officer’s testimony became strained and rambling at times during questioning by Stein, causing Judge Robert Perry to intervene and ask Domenici to respond more carefully.
“Listen to the question and try to understand it before you answer it,” said Perry, adding he noticed a “disconnect between the questions asked and the answers” Domenici was giving.
Her responses caused a stir in the courtroom gallery when members in the audience were heard murmuring comments about Domenici.
“She’s dumb,” an audience member remarked.
The comment prompted a stern lecture to the courtroom from Judge Perry, who reprimanded the audience for making “audible comments” during her testimony. He threatened to ban from the courtroom anyone who continued to make audible responses.
Outside the courtroom, Grant’s family reacted strongly to Domenici’s testimony, saying that her statements weren’t backed by video evidence.
“She did the same thing at the preliminary hearing,” Grant’s uncle Daryl Johnson said. “She has trouble remembering things that have happened unless her lawyer told her that they did. Her verbal accounts don’t match what she sees on video.”
Pirone, who partnered Domenici that night, is expected to take the stand Friday after Domenici is cross examined by the defense. Every witness who has taken the stand so far who was present at Fruitvale BART that night has described Pirone’s behavior as aggressive and offensive.
Domenici’s testimony came after a surprise in the morning session, when an expert witness for the prosecution, ex-Berkeley Police Officer Sean McCann, told the court under cross examination that he had once drawn his gun on a suspect without realizing it.
McCann testified that he was attempting to detain a violent robbery suspect in Berkeley when he suddenly discovered he had drawn his weapon on the man. The former Berkeley cop said he did not remember pulling the firearm out of its holster.
McCann is currently a defensive tactics instructor for law enforcement organizations and was brought on by the prosecution to testify about use of force by police officers.
Defense attorney Michael Rains seized on the admission, immediately asking McCann about the incident. Stein, who appeared to be caught off-guard by the officer’s recollection, attempted to differentiate McCann’s incident from the Grant shooting, a move Grant’s family agreed with.
Johnson said that while the witness appeared to help the defense, the situations cannot be compared.
“The difference between what happened with that officer and Mehserle are night and day. That officer was fighting for his life. Mehserle was not,” he said.
Earlier, BART Police training instructor Sergeant Eugene Wong finished testimony begun Tuesday. Court was not in session on Wednesday due to a state-mandated furlough.
Rains asked Wong, who has worked directly with Mehserle, about the amount of time he spent teaching the Koga Method of search and arrest techniques to incoming officers.
Wong said they spent seven hours teaching nine techniques. He called it an ambitious agenda and said that officers were not required to demonstrate proficiency.
Rains used his line of questioning to try to establish that Mehserle was undertrained. The defense contends that poor training contributed to Mehserle accidentally firing his gun when he meant to use his Taser.
BART no longer uses the Koga Method for police training.
Stein then brought on David Chlebowski, a BART Police officer in Internal Affairs. Questioned about Mehserle’s training, Chlebowski confirmed the former officer passed multiple assessments administered by the agency on using his Sig Sauer handgun, tests which were given during both day and night.
Stein had Chlebowski recite each date Mehserle received training, in an apparent effort to show that Mehserle was indeed sufficiently trained. The prosecution argues Mehserle meant to reach for his gun, after allowing emotions to impede restraint during the chaotic atmosphere on the platform.
Testimony in the trial continues Friday in Los Angeles, where the case has been moved due to concerns over whether Mehserle could receive a fair trial in the Bay Area.
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