CrimeWatch

OAKLAND (CBS 5 / AP) ― The attorney for the family of a Hayward man who was fatally shot by a Bay Area Rapid Transit police officer said he was "surprised" that BART's investigators referred the case to prosecutors without a recommendation of charges against the officer.

John Burris, the lawyer for Oscar Grant III's family, said BART could have made a statement that would have inspired public confidence in the transit police following the Jan. 1 slaying that was captured on amateur videotape.

"The best way to say that is,' we don't condone it and what we saw is not consistent with how we train our police officers and we're referring this case on for criminal prosecution,' Burris said.

"And what they [BART] said was 'we're just referring it on… we're not saying it's criminal conduct or not," Burris added.

The report summarizing the results of BART's internal investigation, sent to the Alameda County District Attorney's office on Monday, doesn't make a recommendation on whether charges should be filed against the officer — but does include interviews with seven officers and 14 witnesses at the scene.

Witnesses said officer Johannes Mehserle fired into the back of Grant while he was lying facedown on a train platform at Oakland's Fruitvale station early New Year's Day. Amateur video taken by several onlookers showed Grant, suspected of being involved in a fight on a train, being pushed to his stomach before the officer fired.

Some have speculated that the officer may have intended to fire a stun gun but accidentally pulled his firearm instead.

District Attorney Tom Orloff has said he hopes to decide by next week whether to bring criminal charges against Mehserle, who resigned from the BART police force last week and has refused to provide a detailed statement to investigators.

The fatal shooting has sparked public outrage, violent protests and accusations of police brutality and racism. In addition, Burris has filed a $25 million wrongful death claim against BART on behalf of Grant's family.

The case has also created tremendous legal and political pressures for Orloff, with politically powerful black ministers trekking to Orloff's office to urge him to prosecute the officer.

Former prosecutors, law school professors and other legal analysts said the case boils down to Mehserle's reason for pulling the trigger and his state of mind. And they said that task is complicated by Mehserle's resignation and his refusal to speak with investigators.

But legal experts said Orloff probably will charge the former officer with something, possibly voluntary manslaughter, after reviewing the video of the shooting and the results of the BART probe.

Orloff, a prosecutor since 1970, is a Republican who has run unopposed for district attorney four times on a tough-on-crime platform.

"You couldn't write a script with more subplots," said Darryl Stallworth, who worked as a prosecutor for Orloff for 13 years.

Stallworth said Orloff and his deputies are probably sorting through scores of witness accounts and viewing the videos frame by frame to determine if charges are warranted. "I suspect, from what I can see in the videos, there is going to be a charge," he said.

Former San Francisco District Attorney Terrence Hallinan said the shooting appears to be "negligent homicide" and likely will lead to criminal charges.

Few legal analysts believe Mehserle will face first-degree murder charges because prosecutors would have to convince a jury that the former officer intended to kill Grant.

A less serious manslaughter charge either voluntary or involuntary is more likely, the analysts speculated.

Voluntary manslaughter carries up to nine years in prison and prosecutors need to convince a jury that the former transit officer's actions were "grossly dangerous or grossly negligent," said Golden Gate University law professor Peter Keane.

Involuntary manslaughter is a much less serious charge and could result in a sentence of probation. To convict Mehserle of that charge, legal experts said, a jury would have to conclude that he acted improperly but accidentally.

A second-degree murder charge carries a potential life sentence, but proving that Mehserle's actions were so outside the norm to warrant such a serious accusation will be difficult, experts said.

"It's hard to argue with those who believe this is a crime," said Jim Hammer, a former San Francisco prosecutor who helped win a second-degree murder conviction for Marjorie Knoller after her vicious dogs fatally mauled a neighbor in 2001. "But were the actions so outrageous that he didn't care about life?"

Michael Rains, a former police officer who defends them now as a lawyer, said he expects Orloff to charge Mehserle because of the case's high profile. Rains said that prosecutors often "overcharge" a case to position themselves for a plea bargaining.

They attorney said he expects Mehserle to raise a self-defense argument because he was responding to reports of a brawl and people had not been searched before he arrived at the train station.

Orloff has handled many high-profile Northern California cases, including racially charged accusations that a group of Oakland police officers conspired to plant evidence on hundreds of suspects. Yet, the analysts say, this may be Orloff's thorniest case yet.

"He has a potential Rodney King-debacle developing, and that puts him in a very difficult position," Keane said. "But he can't use this cop as a sacrificial lamb to throw to the mob to lower the political heat."

(© 2009 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)