Local News

OAKLAND (BCN) ― The lawyer for former BART police Officer Johannes Mehserle has filed a motion asking a judge to reconsider two rulings that the lawyer says interfere with Mehserle's right to defend himself against charges that he murdered unarmed passenger Oscar Grant III.

Mehserle, 27, is charged with murder in connection with the shooting death of Grant, a 22-year-old Hayward man who worked as a butcher at an Oakland grocery store, at the Fruitvale station in Oakland about 2 a.m. on New Year's Day after Mehserle and other officers responded to reports of a fight on a BART train.

Mehserle, who resigned the week after the incident, is in the midst of a lengthy preliminary hearing during which Alameda County Superior Court Judge C. Don Clay will determine if there's enough evidence to have him ordered to stand trial on murder charges. The hearing has met for five days over the past two weeks and will resume Wednesday.

Attorney Michael Rains told Clay last week that he believes Mehserle shouldn't be charged with murder because he didn't exhibit malice during the incident.

The defense lawyer previously said that Mehserle meant to use his Taser on Grant and fired his gun by mistake. Rains also has said that Grant was resisting arrest during the incident.

In a supplemental motion filed last Wednesday, Rains said he thinks Clay should take a second look at a ruling that barred him from presenting evidence about Grant's criminal background as well as a ruling that barred him from presenting evidence that Mehserle told a fellow officer just before the shooting incident that he planned to use his Taser on Grant.

Clay made his rulings last Tuesday.

Rains said in his motion, "Both rulings amount to grave errors under longstanding and never-questioned California authorities" and alleged that they "substantially interfere with Mehserle's federal due process right to defend against the murder charge."

Clay ruled that Grant's criminal record, which includes two short terms in state prison, isn't relevant to Mehserle's case because Mehserle wasn't familiar with Grant's record.

But Rains said in his motion that Mehserle should be allowed to present circumstantial evidence, in the form of his record, that Grant is "the sort of person or character" who would resist arrest, which is what the defense claims was the case at the Fruitvale station.

In a related offer of proof filed May 21, Rains said he wants to call a San Leandro police officer to testify about an Oct. 15, 2006, incident in that city in which the officer arrested Grant for carrying a loaded firearm inside his left front pant pocket.

Rains said the officer ordered Grant to place his hands on the headrest in a car that had been stopped, but Grant fled on foot and ultimately was arrested by another officer who fired his Taser at Grant.

Rains said that even after Grant was Tased he "continued to resist efforts of the officers to handcuff him" and while running from police he threw a loaded pistol, which was recovered by officers.

In his supplemental motion, Rains also said Clay should reconsider his ruling barring BART police Officer Anthony Pirone from testifying that Mehserle "repeatedly ordered Grant to put his arms behind his back and stop resisting" and said, "I'm going to Tase him, I'm going to Tase him."

Clay ruled that Pirone's testimony about Mehserle's statements would be inadmissible hearsay, but Rains said they should be admitted as spontaneous statements made during a chaotic scene in which "he had no time to contrive or misrepresent."

Prosecutor David Stein said at the hearing last Tuesday that to be admissible Mehserle's statements "must be made while he's under stress" and he said there's no evidence that there was any excitement at the Fruitvale station Jan. 1, even though Pirone and three other officers have testified that there were riot-like conditions.

Stein asked, "What evidence is there of any excitement?"

Stein said Mehserle was simply trying to make an arrest and said it's something the former officer did daily.

Stein wasn't available to respond to Rains' motion because there's a gag order barring the lawyers in the case from talking to the news media and there's no record that Stein has filed a response to the motion.

Pirone, who testified for about half an hour last week, will resume his testimony when Mehserle's hearing resumes Wednesday.

(© CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed. Bay City News contributed to this report.)