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Hearing on whether to toss BART cop murder charge
Friday, September 04, 2009
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12:30 p.m.OAKLAND — The lawyer for the former BART police officer accused in the New Year’s Day fatal shooting of an unarmed man on a train platform is arguing that the murder charge should be tossed out.

On Friday, defense attorney Michael Rains said at a hearing that Alameda County Judge C. Don Clay’s ruling to have Johannes Mehserle stand trial for murder is “arbitrary, capricious and patently absurd.” Rains says Clay excluded key evidence during Mehserle’s preliminary hearing.
Judge Thomas Reardon did not render a ruling Friday, telling Rains and prosecutors that he could issue one early next month.

Mehserle -- a graduate of New Technology High School in Napa and the Napa Valley College Police Academy -- shot in the back Oscar Grant after he was pulled off a train for allegedly fighting.
Mehserle has pleaded not guilty. Rains has said Mehserle had intended to use his stun gun but accidentally pulled his handgun.
10 comment(s)

Not so common sense wrote on Sep 4, 2009 12:50 PM:

" This is a no-brainer. He obviously made a HUGE mistake and should be accountable for it, but it was not murder, nor was it pre-meditated in any way. The murder charge was a political move to appease those who were affected by this terrible event. Drop it. "

srsly wrote on Sep 4, 2009 1:14 PM:

" "patently absurd" is an AWESOME way to describe the murder charge. crossing my fingers that it gets dropped for Mehserle! "

sfgiantsfan wrote on Sep 4, 2009 2:55 PM:

" Pre-mediation is not the only standard for murder. There is also murder 2, which applies when there is "willful and wanton" behavior -- behavior that is so likely to lead to murder that it almost amounts to pre-meditation -- for example, shooting a gun into a crowd. So likely to cause death that it is almost premeditated. Doesn't sound like this fits, either, but cops should be especially aware of the difference between a gun and a TASER, especially before firing it into someone's back! "

Byoung wrote on Sep 4, 2009 4:22 PM:

" Its redicolous they are even thinkin of droppin his charge.... Even if it was a mistake it isnt just a small mistake.... "

Baraki wrote on Sep 4, 2009 5:31 PM:

" sfgiants -- the charge in question is first degree murder (murder one) not second degree (murder two). "

crooked6pence wrote on Sep 4, 2009 7:06 PM:

" Another example of a Napa Police Academy graduate depriving an American citizen of their Civil Rights. A little more emphasis on The Constitution is in order at Harvard by the Highway, and maybe a refresher on what constitutes excessive force and due process for our local rookies... "

asahigo wrote on Sep 4, 2009 7:30 PM:

" I wonder what underlying (lesser) charges were included in this case. I would be very surprised if he is convicted of murder, but would not be surprised at all if he was convicted of negligent homicide. "

supernapawoman wrote on Sep 5, 2009 8:00 AM:

" I think that this case should be dropped by the judge. Let's not forget why the BART police where called out to this location because Oscar Grant and his posse were fighting !!! He was not following to keep his hands behind his back. From the video it is clear that Officer Mehserle thought that he was using his taser. Now the real kicker of the case is that Oscar Grant's father who has been in prison for murder has filed a civil suit against BART. Obviously for money !!! I hope for Johannes Mehserle this nightmare situation will be dropped against him. "

bdnf wrote on Sep 5, 2009 10:32 AM:

" So Mehserle's "nightmare" is equivalent to Oscar Grant's death and we should just forget the whole thing?

According to press reports, Mehserle's cooperation with investigators has been zero. Exculpatory explanations from his attorney at this point are pure speculation. Let's hear from Mehserle himself and other witnesses in a fair trial. "

rangerdad wrote on Sep 5, 2009 9:16 PM:

" bdnf...Clearly you have no knowledge of the legal issues beyond simply the Penal Code that a police officer faces when charged with ANY crime. Given the Districts Attorney's Politically motivated charge of 1st degree murder is seem to make complete sence that that no statement was given. Also, a police officer has a right to remain silent (Miranda) just as any other citizen until he/she has been given access to their attorney...once again another citizen seems to feel the police entitled less rights than the rest of society. "

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