Lawyer for ex-BART cop wants gag order lifted

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Monday, February 09, 2009

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SAN FRANCISCO — The lawyer for the former BART officer accused of fatally shooting an unarmed man is asking a judge to lift a temporary gag order in the murder case.

Michael Rains, who represents Johannes Mehserle, says the gag order has limited Mehserle’s efforts to “set the record straight” and could prejudice potential jurors in the case against his client, according to court documents Rains filed last Friday in Alameda County Superior Court in Oakland.

“The defense believes that the (gag) order has hamstrung Mehserle by preventing any attempt he might otherwise make to address the barrage of negative publicity in the case, which has presumed his guilt as a murderer,” Rains said in the filing.

Mehserle, who grew up in Napa, has pleaded not guilty to murder in the New Year’s Day shooting of Oscar Grant on a train platform in Oakland. Prosecutors say Mehserle, 27, shot Grant, 22, in the back while he lay facedown on the ground.

Rains argued at a Jan. 30 hearing that Mehserle, who was released last Friday on $3 million bail, may have mistakenly pulled his pistol instead of a stun gun.

In Friday’s court filing, Rains says the attorney for Grant’s family, John Burris, who is not covered by the gag order, has been free to make allegations against his client that the defense cannot counter.

Rains says Burris has “offered a number of inaccurate and typically inflammatory statements.”

Burris said Monday he’s not involved in the criminal case.

“My job is to protect my clients’ interests,” he said.

Superior Court Judge Morris Jacobson issued the gag order after Rains gave a copy of his motion for bail to the San Francisco Chronicle before the bail hearing, according to Rains’ filing.

Rains says the motion had already been filed with the court before it was released to the newspaper.

Rains is calling on Jacobson to allow lawyers on both sides to talk to the media inside the courthouse within 30 minutes after each proceeding.

A hearing on the gag order is scheduled for Friday in Alameda County Superior Court.

Mehserle is a 2000 graduate of New Technology High School in Napa and a 2006 graduate of the Napa Valley College Police Academy.

7 comment(s)

krusty wrote on Feb 9, 2009 8:13 PM:

" No, Mehserle had his chance to “set the record straight.” That's what a police investigation is for. When he refused to speak with them , his actions spoke for him instead. "

supernapawoman wrote on Feb 9, 2009 8:33 PM:

" Krusty...Have you ever been involved in Johannes Mehserle's situation ?? With all the rioting how could he have set the record straight ??? I am sure his legal counsel advised him not speak !!! Now I am sure that Michael Rains is giving him different advise. The legal world is like being in a foreign country !!! I hope that the Judge will allow his attorney's request. "

lookwhatyoumademedo wrote on Feb 9, 2009 9:06 PM:

" You only get one chance to make a first impression.

It's too late for Mehserle to sincerely say I made a mistake, I'm sorry. "

Mr. Feasor wrote on Feb 9, 2009 10:30 PM:

" I certainly hope that Rains' comments to the press regarding the gag order does not violate the gag order.

Otherwise, he has some explaining to do before Judge Jacobsen at the hearing! "

amazed wrote on Feb 10, 2009 8:32 AM:

" Criminal defendants usually aren't advised to make media statements. Why is his own attorney pushing for this? "

reality1 wrote on Feb 10, 2009 1:05 PM:

" I think Mehserle's first attorney really did him a dis-service by shutting him away from reporters and by having him immediately resign from the force to avoid an internal investigation. That succeeded in giving everyone the impression this guy was guilty. I don't know about you, but my impression from watching the video was that this was an accidnetal discharge of Mehserle's weapon. Remember his standing there immediately after the shot, looking stunned? You don't look like that if you meant to shoot. If I were Mehserle's first attorney, I would have had him fully particpate in the department's internal investigation, and I would have had him in front of the whole world screaming, "accidental discharge". True, the victim is still dead, true, it should not have happened, true it is still ugly, and the inevitable lawsuit would still have happened, but the officer would not be in the mess he is in now, and maybe the riots could have been averted. I'm not just trying to float strategy. I really think this was an accidental discharge, and the guy's first lawyer told him to keep his mouth shut. "

Dwayne wrote on Feb 10, 2009 1:46 PM:

" Sorry reality1, but you're still arguing the case as if intent had anything to do with negligence... "Oops, I'm sorry," doesn't get it morally or legally..... "

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