The defense for Johannes Mehserle, the former BART Police Officer charged with murder for the New Year’s Day 2009 shooting of unarmed BART passenger Oscar Grant, is trying to prevent former BART Police Officer Tony Pirone’s use of a racial slur shortly before the shooting from being brought up at trial, according to documents made public today by the Los Angeles County Superior Court.
Defense attorney Michael Rains is also seeking to prevent Sophina Mesa, the mother of Grant’s child, from testifying during the trial, or barring that, that he be allowed to bring up the fact that Grant was on parole during Mesa’s cross-examination.
In a motion dated June 3, Rains says that approximately one minute before the shooting, Grant, and Pirone engaged in a heated exchange, during which Grant called Pirone a “bitch ass n–,” using a racial slur referring to African-Americans. In reply, Pirone repeated the words to Grant, saying “I’m a bitch ass n–, huh, bitch ass n–, right?”
Rains argue that this is irrelevant to the case, but could prejudice the jury against Mehserle. “This case is not about race,” Rains writes, saying that “there is no evidence that [Mehserle] expressed any racist sentiments or acted out of any racial purpose.”
But allowing the prosecution to bring up the remark at trial would create the danger that “the jurors will take the inappropriate conduct of one man and generalize it to BART police in general, and to the defendant specifically,” Rains says.
“This is all just part of the continuing process to show that the aggressiveness on the part of the BART officers was not there,” said Cephus Johnson, Grant’s uncle, when asked about the filing. “The so-called video expert they now have is trying to say the boys were the aggressors, so of course they don’t want footage of Pirone calling Oscar a bitch ass n– to be allowed in the case,” he told the Beat.
In a separate motion, Rains asks for Sophina Mesa, the mother of Grant’s child, to be prevented from testifying at trial.
Rains argue that the only evidence Mesa has to offer is that Grant told her during a phone conversation that “the police were beating Grant and his friends for no reason.”
But the prosecution already has two other witnesses who can testify that Grant said this, Rains says. He argues that “it seems clear that the District Attorney seeks to offer Ms. Mesa simply to remind the jurors that Grant was a father of a small child at the time of his death,” saying that this would create “unnecessary and undue prejudice” against Mehserle.
“Rains is trying to water down the assault of Oscar and the other boys on the platform that night,” Johnson said when asked about the attempt to exclude Mesa’s testimony.
If the prosecution is allowed to call Mesa to the stand, the defense needs to be able to bring up the fact that Grant was on parole at the time of the shooting during Mesa’s cross-examination, Rains argues.
Judge Robert Perry denied a previous request by the defense to bring up Grant’s parole status at trial, saying that it wasn’t relevant to the case but could prejudice the jury against Grant.
Rains had argued that the possible revocation of Grant’s parole status would give him a motive for resisting arrest, but Perry disagreed, saying that resisting arrest would increase the likelihood of parole being revoked.
Rains now argue that, since Mesa told Grant to remain on the BART train to avoid arrest because she was afraid his parole would be revoked, the defense needs to be able to bring Grant’s parole up in cross-examination to avoid violating Mehserle’s Sixth Amendment right to confront witnesses against him.
“It would be impossible to fully and fairly cross-examine Mesa […] on interest and bias, as well as to explore her substantive involvement in the events, without eliciting testimony regarding Grant’s probation and parole status,” Rains writes.
Arguments on these motions are expected to be heard sometime next week in Los Angeles, where the case has been moved due to concerns over whether Mehserle could receive a fair trial in Alameda County.
Filings, in this case, are available from the Los Angeles County Superior Court’s website.
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