CrimeWatch

OAKLAND (CBS 5 / AP / BCN) ― A judge ruled Thursday afternoon that there was sufficient evidence to have former Bay Area Rapid Transit police Officer Johannes Mehserle stand trial for murder in the fatal shooting of an unarmed man on a train platform.

"There is no doubt in my mind Mr. Mehserle meant to shoot Oscar Grant with a gun, not a Taser," Alameda County Superior Court Judge Don Clay said concluding a seven-day preliminary hearing. "It's a dangerous act, an intentional act, a deliberate act."

Mehserle, 27, sat looking straight ahead and showed no emotion after the ruling. Grant's mother burst into tears and sobbed.
 
The judge noted that Mehserle's case marked "the first time a peace officer has been charged with murder" in California.

Amateur videos of the incident that spread across television and the Internet showed Mehserle firing a shot into the 22-year-old's back as he lay face down early on New Year's Day. Officers had detained Grant and four friends at Oakland's Fruitvale BART station for allegedly fighting on a train.

Mehserle's lawyer Michael Rains had contended that Grant's death was "a tragic accident," because Mehserle accidentally grabbed his pistol instead of his Taser stun gun during the incident.

Rains said Mehserle shouldn't face a murder charge because there was no evidence that he exhibited malice during the short, two-and-a-half minute time period he was on the station's platform before the shooting, arguing that Mehserle's actions were "consistent with an officer deploying a Taser."

But Judge Clay said he was heavily swayed by eyewitness Daniel Liu, who testified that Mehserle pulled out his gun with his right hand, held the gun with both hands and then fired into Grant.

Clay said that in pulling out his gun with his right hand, which is his strong hand, Mehserle's actions were "totally inconsistent with using your weak hand to use your Taser."

Several BART officers who testified at the hearing said they use their weak hand for their Taser and their strong hand for their gun.

But Dale Allen, a San Francisco attorney who's defending BART against a $50 million wrongful death lawsuit filed on behalf of Grant's family by Oakland civil rights attorney John Burris, said after the ruling that Mehserle uses his right hand for both his Taser and his gun.

"That's why there was confusion" on Mehserle's part, said Allen, who attended most of Mehserle's hearing.

Before final testimony began earlier Thursday, Rains had wanted to call two witnesses who he said would testify about Mehserle's state of mind during the shooting. But the judge disallowed the witnesses, saying that only Mehserle - who did not testify at the hearing - could talk about his mindset that night.

Although the video shows Mehserle shooting Grant, Clay said, "it does not show his state of mind. No one can tell me what Mehserle's thoughts were at the time."

"I cannot be stopped from defending my client from this serious charge," Rains argued to no avail.

Rains said he had wanted to call to the witness stand a training expert who would testify that Mehserle "probably was ill-trained" in using a Taser and that drawing his gun was an accident.

But in not allowing the expert to testify, Judge Clay said Rains' offer of proof was "speculation" because the expert "can't tell us his (Mehserle's) motor skills and what he was thinking."

Allen, who confers frequently with Rains, who was not allowed to speak to the press because of a gag order in the case, said the expert would have testified that Mehserle used his right hand for both his Taser and his gun.

Clay also didn't allow Rains to call another witness, Jackie Bryson, a friend of Grant, whose testimony Rains claimed would indicate that Mehserle had "harbored no malice when he drew his weapon."

In previous statements, the friend had said he heard Mehserle state that he planned to stun Grant with his Taser.

"Bryson's testimony doesn't add anything" to the case, Clay said.

The judge's rulings prompted Rains to complain: "The court is trying to gut our defense."

Later in the day, Clay cut short testimony by a defense forensic video expert who was playing an enhanced video of the shooting that he said indicated Grant was struggling up to the time that he was shot by Mehserle.

Rains angrily said, "I need more time. I cannot be stopped by the court arbitrarily."

But Clay responded, "None of this (the enhanced video) is relevant to the court. There's nothing new in the analysis. The witness (the video expert) wasn't there."

As he walked out of the courtroom during a break that followed Clay's comments, Mehserle's father, Todd Mehserle, muttered to a fellow spectator, "There's no justice in Oakland. They only see what they want to see. This town's a sham. S-H-A-M."

After the court session, Grant's mother Wanda Johnson said, "I'm hurt. I'm saddened. Even if Mehserle goes to jail, his family is going to be hurt just like my family. They will have a loss. But their loss they will be able to go see. My loss, I have to go to the gravesite and look at my son's headstone."

She added, "I know that justice will be served but that still won't bring Oscar Grant back."

Johnson said that she believes that BART police officers "need to handle situations with more sensitivity."

She said she wants to be known for reforming police tactics so that other families "won't have to endure what I've had to endure" in dealing with her son's death.

Mehserle, who had previously pleaded not guilty and is free on $3 million bail, was scheduled to return to court on June 18 to have a trial date set.

During the preliminary hearing, prosecution and defense attorneys called numerous witnesses and presented evidence in the controversial video-recorded shooting that prompted sometimes violent protests in Oakland.

Testimony by witnesses included train passengers and Mehserle's colleagues on the BART police force.

On Thursday, BART police officer Terry Foreman testified he was brought in to provide support to Mehserle in the hours after the shooting. He said Mehserle did not say he shot Grant by accident and meant to use his Taser.

BART officer Tony Pirone concluded his third day of testimony by reiterating that Mehserle said he was he was "going to Tase" Grant before fatally shooting him and said he thought Grant "was going for a gun."

Deputy District Attorney David Stein asked Pirone, who was holding down Grant's head during the shooting, "if there was anything you would've changed that night?"

"No, Sir," Pirone replied.

Rains later asked Pirone, if Grant and his friends had "gone along with the program," would he have let them go?

"Yes, Sir," Pirone said.

Judge Clay said later when announcing his ruling that "These young men, as the videotape shows, did nothing to justify the use of deadly force."

He said Grant and his friends might have been loud and argumentative, but Mehserle committed "an unlawful killing with malice and without legal justification."

Burris, the Grant family's attorney who sat with them during most of the hearing, said he believed that the prosecution "shredded the credibility" of the BART police officers who alleged that Grant was resisting arrest.

Burris said Grant was "a peacemaker" during the incident and alleged that the chaos that occurred was caused by BART police officers who were overreacting to the situation.

Cephus Johnson, who is Grant's uncle, said the shooting incident "was no accident" in his view. 

Johnson said that if it had been an accident he believed that Mehserle's parents "would have made a public apology," but he noted that they never have done so.

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