BART cop's lawyer wants murder charge dropped

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BART shooting coverage

November 20th, 2009

Murder trial of BART cop moved to LA

November 19th, 2009

Murder trial of BART cop moved to LA

November 18th, 2009

Judge to say where BART shooting trial to be held

October 26th, 2009

Finding spot for BART officer's trial no easy task

October 21st, 2009

Civil trial date set for BART shooting

October 20th, 2009

Civil trial date set for BART shooting

October 17th, 2009

Judge grants change of venue in BART shooting case

October 16th, 2009

Judge grants change of venue in BART shooting case

October 14th, 2009

Oscar Grant's friends sue over treatment after BART shooting

October 9th, 2009

Day 4 for Mehserle change of venue hearing

NoonAlameda County Superior Court Judge Thomas Reardon this morning postponed the hearing until Sept. 4 to give the prosecution time to respond to defense attorney Michael Rains' motion to throw out Alameda County Superior Court Judge C. Don Clay's decision to have Mehserle stand trial for murder.

6:15 a.m. update — The lawyer for the former BART officer who grew up in Napa and is charged in the fatal shooting of an unarmed man is seeking to have the murder charge against his client thrown out.

Defense attorney Michael Rains says he will present a motion Friday to throw out Alameda County Superior Court Judge C. Don Clay’s decision to have Johannes Mehserle stand trial for murder.

Mehserle — a graduate of New Technology High School in Napa and the Napa Valley College Police Academy — was working as a Bay Area Rapid Transit officer when he shot Oscar Grant after Grant was pulled off a train for allegedly fighting.

Rains has argued that Mehserle, 27, meant to use his stun gun, not fire his handgun, to try to restrain Grant. He maintains that there is not enough evidence for the murder charge.

Mehserle has pleaded not guilty in the case.

42 comment(s)

Rocketman wrote on Jul 24, 2009 7:07 AM:

" Rains is correct. The judge is Alameda is doing nothing more than political posturing. IF the charges of murder are dropped, watch what will happen in the city of Oakland. This is what has become of our society..........decisions made based on race. "

Ruff Limblog wrote on Jul 24, 2009 7:50 AM:

" Attorneys do what attorneys do.

I'm content to let the courts do what courts do.

~Ruff "

Rocketman wrote on Jul 24, 2009 7:54 AM:

" That's fine Ruff............just don't accidently shoot a person of color in Oakland..... "

Marinemom wrote on Jul 24, 2009 7:55 AM:

" Rains is absolutely correct. The murder charge was out of line. It should have been manslaughter all along.

And yep...if the murder charge is dropped...they protests will begin again. But oh let's see...five cops were gunned down and caucasians didn't go riot in the street.

Hmmmmmm...go figure. "

Rocketman wrote on Jul 24, 2009 8:07 AM:

" If there is truly justice in the system, the trial will be moved (change of venue) and appropriate charges will be instituted. "

Bauhausfan wrote on Jul 24, 2009 8:27 AM:

" Rocketman - So if your son was shot like that you would say it was an accident?

Really?

Oops they shot my son while he was face down on the ground. I am just a ok with it.

Why was a taser needed?

Hello? "

Rocketman wrote on Jul 24, 2009 8:34 AM:

" Bauhausfan wrote on Jul 24, 2009 8:27 AM:

" Rocketman - So if your son was shot like that you would say it was an accident?

Really?

Yes really...........it is what it is........

So Bauhausfan, if your son killed someone accidently and he was convicted of first degree murder, you're OK with that...........Really?? "

firststreetmayor wrote on Jul 24, 2009 8:52 AM:

" Sure why not ?
Lets give all police a stay out of jail card, for decades the law has covered up their killings and major mistakes by back room deals with the DA's office, try covering this one up and watch the city of Oakland
burn with riots and protest that might even end up all the way to Napa valley.
Lets reduce the crime the officer is charged with to pulling out his taser then pulling the trigger as a man was laying on his back, not struggling , no weapons, hands behind his back and four officer's over him, Oops it was my gun Law, simple sorry won't work this time boys and girls your law men and women are under scrutiny and the common folk people won't take it any more, no matter how pretty you paint the picture, but thats just my view. "

Shrapnal wrote on Jul 24, 2009 8:53 AM:

" How they were not able to get the trial moved shows how committed they are to truly serving justice... he can't get a fair trial in Alameda county and assuming the murder charge is dropped or they find him innocent they'll be tons more race riots "

Rocketman wrote on Jul 24, 2009 9:28 AM:

" firststreetmayor.........I see that you have the whole story.........I guess there is no real reason to have a trial is there?? "

old_napan52 wrote on Jul 24, 2009 9:30 AM:

" Marinemom said - And yep...if the murder charge is dropped...they protests will begin again. But oh let's see...five cops were gunned down and caucasians didn't go riot in the street.
Actually, two cops were shot, then the caucasian led police force came down on the shooter with the full force of the swat team to inact justice as only they can. In the process two more police officers lost their lives...nothing says sad and crazy like the loss of life...any life. "

Joe wrote on Jul 24, 2009 10:12 AM:

" I thought it was a good thing that Mehserle was chargedd with murder. There's no way he would be convicted for murder. It obviously wasn't intentional to shoot him with his gun.
Who cares if these residents of Oakland protest. They usually just end up destroying their own community, so let them. If they start really getting out of control and damaging the suburbs the national guard will be called in and make the situation that happened in Iran look peaceful. "

srsly wrote on Jul 24, 2009 10:52 AM:

" I hope the charge is dropped. Anyone with a brain who watched the videos could see what happened and the reactions afterwards. "

Rocketman wrote on Jul 24, 2009 11:57 AM:

" old_napan52 wrote on Jul 24, 2009 9:30 AM: Actually, two cops were shot, then the caucasian led police force came down on the shooter with the full force of the swat team to inact justice as only they can.

Uh, what fictitional program were you watching??? The Oakland Chief is Black. The SWAT Commander is Asian......get the facts before you comment.......... "

old_napan52 wrote on Jul 24, 2009 12:09 PM:

" Come on now rocketman - be nice - it doesn't take a rocket scientist to know that the police are not run by the chief and a swat commander. "

bdnf wrote on Jul 24, 2009 12:21 PM:

" The judge found that there was sufficient evidence to try the defendant for murder. Absent any new evidence since the hearing where that was decided, I'd say the defense attorney is just pulling at straws to try and overturn that procedural decision. I don't know what Mehserle's state of mind was at the time, but on the surface it looked like a deliberate killing. Courts have to go on what is seen and known, not on speculation about the state of mind of someone who has consistently refused to speak to investigators. "

Rocketman wrote on Jul 24, 2009 1:53 PM:

" Sorry old_napan52, I thought you were trying to infer that most police agencies are out of control. There is no chain of command and that all the officers just run amuck, shooting people, violating everyone's rights, etc. Maybe it is time that the Governator bring in the National Guard and start saving us from all this police corruption. "

Rocketman wrote on Jul 24, 2009 1:56 PM:

" bdnf wrote on Jul 24, 2009 12:21 PM:

" The judge found that there was sufficient evidence to try the defendant for murder.

.........and as we all know judges never take into consideration racial bias in their decisions.........as old_napan52 states: Come on now bdnf it doesn't take a rocket scientist to know that the judge is putting his personal predjudice into this situation........isn't he?? "

ibanezz707 wrote on Jul 24, 2009 3:47 PM:

" I would like to bring to everyone's attention that Oscar Grant and his friends were fighting and acting obnoxious. They were taunting BART police and making vulgar comments saying to the police officers that "they aren't real cops," therefore they don't have to listen to them. Do you know how stupid you have to be acting in order for a police officer(s) to tell you to get on the ground? Grant was not complying to the officer's commands. He didnt' just put his hands behind his back as soon as police gave him the order to do so; He had to be forced to do s. If 5 police officers had me on the ground, I would do what they say and I would definitely not reach for my pockets. It was tragic accident and if he would have complied with police, then this accident would not have happened. Johanis is a good man. I went to school with him. I have known him for over 20 years. I wish they wouldn't have got it on tape. I'm surprised Al Sharpton isn't involved. "

Cowboy wrote on Jul 24, 2009 4:26 PM:

" Being a sworn police officer, wearing the uniform, having the badge and a deadly weapon, carries with it a higher level of responsibility, and therefore more serious consequences for abuse, whether in error or intentional.

"Aww shucks, I made a mistake," for a trained law enforcement officer doesn't wash, especially when it takes someone's life. This was an unjustified killing, and needs to be treated as such to send a message to all cops that this will not be tolerated. This is not a police state, yet. "

justnana wrote on Jul 24, 2009 4:52 PM:

" When the President of our nation states that police departments act stupidly...because of his own racial bias, it is giving the populace permission to ignore the authorities. We're fast sliding into a place I never thought we would be. "

anticommie wrote on Jul 24, 2009 6:04 PM:

" bdnf wrote on Jul 24, 2009 12:21 PM:

"I don't know what Mehserle's state of mind was at the time, but on the surface it looked like a deliberate killing. Courts have to go on what is seen and known, not on speculation about the state of mind of someone who has consistently refused to speak to investigators. "

State of mind has a major impact in these kind of charges. State of mind usually determines if the murder was 1st degree or 2nd degree. Was it premeditated? Or heat of passion? On the surface to me, it looked like an accident. I have been through the napa police academy, and the training on these situations are quite thorough. And why would a young cop that just had a baby deliberetly kill an unarmed man, knowing full well of the consequences? This was an accident, and a tragic one at that. It is a shame to see this whole process running on politics of color of skin, instead of the truth. Good luck to Mehserle, his life is ruined too by this event. "

Ruff Limblog wrote on Jul 24, 2009 7:21 PM:

" justnana- Everybody acts stupidly some times, just take a look at Republican Senator John Ensign.

This Republican hypocrite was all over Bill Clinton's infidelity and said that Republican Senator Larry Craig should resign for his Minneapolis airport bathroom shennanigans.

But when his little brain got stupid, he talked to his mom and dad who decided to give his sexual partner some $96,000 in gifts when the relationship was finally ended.

It was kind of stupid to arrest an old man on his front porch. It was also kind of stupid to yell at a police officer.

There's been lots of stupid to go around lately.

Today Barack Obama spoke with the police officer and said that both men had made mistakes and had a hard time backing down from them.

A tempest in a teapot, fortunately nobody was shot in the back of the head while laying face down on the ground with their hands behind their back, eh?

~Ruff "

Rocketman wrote on Jul 24, 2009 7:26 PM:

" Cowboy wrote on Jul 24, 2009 4:26 PM:

" Being a sworn police officer, wearing the uniform, having the badge and a deadly weapon, carries with it a higher level of responsibility, and therefore more serious consequences for abuse, whether in error or intentional.

No problem cowboy..........so is he guilty of intentional murder or should we have a trial first and let the evidence show the truth?? "

Rocketman wrote on Jul 24, 2009 7:27 PM:

" justnana wrote on Jul 24, 2009 4:52 PM:

" When the President of our nation states that police departments act stupidly...because of his own racial bias, it is giving the populace permission to ignore the authorities. We're fast sliding into a place I never thought we would be. "

Isn't that special????? "

antipc wrote on Jul 24, 2009 7:31 PM:

" Unfortunately we are seeing reverse racism controlling the way we administer justice. Anarchy should not be considered in our decisions to prosecute & sentence or exonerate.

The precedent set after the King trial needs to be reversed. And, the sooner we show a zero tolerance for that kind of behavior the better.

Allowing the criminal element to rule the streets in certain areas has been a monumental mistake....... thanks to liberal ideology. "

Cowboy wrote on Jul 24, 2009 7:37 PM:

" anticommie wrote on Jul 24, 2009 6:04 PM: "....Good luck to Mehserle, his life is ruined too by this event. "

Too bad you can't wish Oscar Grant good luck. "

Mr. Feasor wrote on Jul 24, 2009 7:58 PM:

" I'm not sure who sounds more like a broken record here...Rains, or the posters...

I would be interested in reading the motion, though. If any new facts have come out to justify dropping the murder charge, I would like to know what they are.

Hey NVR...could you guys get copies of the motion and post it online? "

Rocketman wrote on Jul 24, 2009 8:24 PM:

" Ruff, The problem is taht BHO started backpeddling after he got a lot of heat. Like putting his nose in a situation that didn't belong. So now the great one needs to comment on minor police actions??? He should have said no comment........but he didn't, because he acted........well stupid. He put his foot in his mouth without knowing all the facts. Interesting that the same actions are occuring with THIS subject matter.- "

anticommie wrote on Jul 24, 2009 9:16 PM:

" Cowboy wrote on Jul 24, 2009 7:37 PM:

" anticommie wrote on Jul 24, 2009 6:04 PM: "....Good luck to Mehserle, his life is ruined too by this event. "

Too bad you can't wish Oscar Grant good luck. "

With this statement, you would think that I believe Grant should have been killed. On the contrary cowboy, it is a shame that that this guy was killed, but it was not intentional from what I saw. Manslaughter would be a correct form of this death, not murder.

Manslaughter-

–noun

Law. the unlawful killing of a human being without malice aforethought.

Murder-

–noun

Law. the killing of another human being under conditions specifically covered in law. In the U.S., special statutory definitions include murder committed with malice aforethought, characterized by deliberation or premeditation or occurring during the commission of another serious crime, as robbery or arson (first-degree murder), and murder by intent but without deliberation or premeditation (second-degree murder).

But you are right, it is too bad I cant wish Grant good luck. "

Cowboy wrote on Jul 24, 2009 11:12 PM:

" A "motion" in court is pretty much what itt implies...Going through the motions.

The lawyer is just doing his job. If hhe didn't file the mundane motion to dismiss, then he'd be guilty of malpractice. It's just part of the legal process and means nothing. Without it, it gives grounds for an appeal later on based on inadequate representation. "

reason-ator wrote on Jul 25, 2009 12:57 AM:

" Joe. There are lots of decent people who live in Oakland who do not deserve to have their property destroyed by rioters.

Think of it this way. Let's pretend you live in American Canyon.

Let's say an American Canyon youth gets off a bus and gets shot by American Canyon Police. Let's say that the citizens of American Canyon have had several incidents like this, and are whipped up into a frenzy by the media and start breaking your windows and burning your truck.

Should we say it's OK because the rioters in American Canyon are just destroying American Canyon.

If it is OK, we'll import rioters from neighboring cities to help with the riots. You don't REALLY think that the rioters from Oakland were ALL from Oakland, do you ? "

gogojr1 wrote on Jul 25, 2009 2:36 AM:

" only the cop knows if it was intentional, just stop all this blah blah blah and see the outcome, "

guesswhoiam wrote on Jul 25, 2009 11:02 AM:

" Ibanezz has the most comprehensive description so far.

Ruff blah blah blah barf barf barf, you always spout off your liberal propaganda every chance you get. stay on topic. I think the moderators should use their discretion and delete you when you go this far off topic. "

WhatWhat wrote on Jul 25, 2009 11:51 AM:

" firststreetmayor, Its obvious you have not followed the story or even watched the tapes. Mr. Grant was not laying on his back as you say. Mr. Grant was struggling as you say he was not. Mr. Grant's hands were not behind his back as you say (if they were and he was laying on his back as you say he would have had his hands hidden from officers which would dictate the use of a taser. To this point, his hands were tucked under his body as he layed on his stomach and had ample time and warning to get them behing his back. Thus the taser theory is correct. That being said, this is a horrible tragedy for both families and all involved. The original charge of murder was a huge mistake on the DA's part and will come back to haunt him. I can understand manslaughter but no reasonable person can say that Mr. Mehersle went to the bart station with intent to murder Mr. Grant. "

WhatWhat wrote on Jul 25, 2009 12:03 PM:

" Mr. Feasor and bdnf. The problem is that the no new evidence needs to be submitted to drop the murder charges because the murder charge was not the right charge in the first place. Could you honestly look at the situation and say that Mr. Mehersle committed the act of murder as written by the law. If so, I truly hope you do not have the means or brains to pass law school because we can not afford more judges like the one who upheld the original charge. "

Mr. Feasor wrote on Jul 25, 2009 6:51 PM:

" WhatWhat - I would also like to see the motion to review the arguments in support of dropping the charge. The intent of this motion is to reconsider Judge Clay's decision to have Mehserle stand for trial. And that determination was based on a seven day preliminary hearing.

If it's the same old "he meant to use the taser" argument - and no new facts have been discovered since the last hearing - then I fail to see how this motion will make any difference. That's why I want to read it.

WhatWhat asks: "[c]ould you honestly look at the situation and say that Mr. Mehersle committed the act of murder as written by the law[?]"

The problem with the taser argument is - among other things - that it conflicts with Mehserle's initial statements after the shooting. BART police Officer Terry Foreman (who spent more than five hours with Mehserle after the shooting) testified that Mehserle kept saying he thought Grant had a gun. The taser was not even brought up. One would think that Mehserle would say he meant to tase Grant right after the incident...

So that's a disputed fact which cannot be resolved as a matter of law. It's an issue of fact that can only be determined by triers of fact (the jury). I don't care which way it goes, everyone is entitled to due process regardless of profession, gender, or race.

WhatWhat says: "If so, I truly hope you do not have the means or brains to pass law school because we can not afford more judges like the one who upheld the original charge."

You piqued my curiosity, what law school did you go to? "

sfbella wrote on Jul 26, 2009 12:01 AM:

" WhatWhat wrote, 'I truly hope you [Mr. Feasor and bdnf] do not have the means or brains to pass law school because we can not afford more judges like the one who upheld the original charge' I, too, am curious about WhatWhat's legal background.

And, Marinemom. You state that 'The murder charge was out of line. It should have been manslaughter all along.' Could you elaborate please? Semper Fi. "

vocal-de-local wrote on Jul 26, 2009 1:41 PM:

" Undoubtedly it was an accident, nevertheless an accident which necessitates some form of punishment. Those in charge of protecting the populace are expected to be "trained" to respond appropriately to complex situations. If there's any doubt that they can't be trained to respond appropriately, they should be weeded out, either at the educational level before they are ever allowed to carry weapons, or at the level where the mistake is so profound, the person should never ever again be allowed to carry a deadly weapon.

There are lessons to be learned here. It seems to me that tazer guns should probably not be in the exact same "form" as a gun. They should not have a trigger but a push button or some other mechanism that does not resemble a gun trigger. This was bound to happen, sooner or later.

When people are under stress and fearful for their lives, it's human nature to panic and respond in unexpected ways. Our brains are imperfect. Stress hormones block normal pathways. In this situation, Mehserle's initial pathway probably stated "danger". It overrode the pathway which should have used some common sense in selecting an appropriate weapon.

I think the issue here should probably revolve around whether there was justification for using ANY weapon. We, as a society, need to decide just how much punishment should be allocated to those who are hired to be in charge, but lack, at least for a moment, the basic common sense needed to maintain order. "

shareathought wrote on Jul 29, 2009 7:58 PM:

" justnana Jul 24, 4:52 PM writes:
"...the President of our nation states that police departments act stupidly......because of his own racial bias..."

1) It seems that "our" President was referring to behavior, not mentality, of an officer (in one particular situation), arresting a person who, was on his own private property because, the officer had his feelings hurt or felt insulted. It seems that the person arrested was behaving badly as well, but he did not commit a crime.

2) calling our President "racially biased" may be a reflection of one's own preconceptions. "

shareathought wrote on Jul 29, 2009 8:04 PM:

" "Cowboy wrote on Jul 24, 2009 11:12 PM:
" A "motion" in court is pretty much what itt implies...Going through the motions."

Ditto "

shareathought wrote on Jul 29, 2009 8:17 PM:

" Googleling both Taser Gun and 9mm Smith & Wesson finds two tools that "appear" similar.

http://images.google.com/imgres?imgurl=http://www.spy-equipment-buying-guide.com/images/tazer%2520guns%2520resized.jpg&imgrefurl=http://www.spy-equipment-buying-guide.com/tazer-guns.html&usg=__B78Bk2ZOTyq2BaXiP_d9BDCyEkc=&h=131&w=188&sz=10&hl=en&start=2&um=1&tbnid=E_WNC68doH-QnM:&tbnh=71&tbnw=102&prev=/images%3Fq%3Dtazer%2Bguns%26hl%3Den%26client%3Dsafari%26rls%3Den%26sa%3DX%26um%3D1

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