The Mehserle Verdict
Update, July 08, 2010: Little bump here, as the jury has returned a verdict.
Update, July 02, 2010: Much appreciation to one of the anonymous commenters for drawing attention to this excellent rundown on the trial, the charges, and the potential aftermath. Thanks.
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This thread comes per comment requests in the bar thread.
The murder trial for the BART police officer who shot and killed Oscar Grant is wrapping up. The defense has rested and the jury is expected to begin deliberating on Friday.
This morning the judge issued a tentative order taking first degree murder off the table, ruling that the facts as presented to the jury could not support the premeditation element of the charge. It looks like the jury will be allowed to consider second degree murder and manslaughter, but expect some legal wrangling over the next two days -- the defense wants the jury to consider only murder or acquittal, and noting between. (My barbri outline suggests the defense will fail on this point -- lesser included offenses, baby -- but if they do win, I'll joyfully add the incident to my list of indictments against barbri.)
Meanwhile, Oakland just laid off ten percent of its police force. What timing. I am not sure whether the city has already sent those 80 police officers packing, but as the commenters in the other thread rightly suggest, an acquittal verdict seems likely to put Oakland in a state of, um, "disquiet."
. . . also. Somewhat apropos to this thread is this story about a BART officer who tased a fleeing man at Downtown Berkeley for fare evasion. Without sharing my own thoughts, suffice it to say that Mehserle's jury likely knows nothing about it.
Update, July 02, 2010: Much appreciation to one of the anonymous commenters for drawing attention to this excellent rundown on the trial, the charges, and the potential aftermath. Thanks.
_______________________________
This thread comes per comment requests in the bar thread.
The murder trial for the BART police officer who shot and killed Oscar Grant is wrapping up. The defense has rested and the jury is expected to begin deliberating on Friday.
This morning the judge issued a tentative order taking first degree murder off the table, ruling that the facts as presented to the jury could not support the premeditation element of the charge. It looks like the jury will be allowed to consider second degree murder and manslaughter, but expect some legal wrangling over the next two days -- the defense wants the jury to consider only murder or acquittal, and noting between. (My barbri outline suggests the defense will fail on this point -- lesser included offenses, baby -- but if they do win, I'll joyfully add the incident to my list of indictments against barbri.)
Meanwhile, Oakland just laid off ten percent of its police force. What timing. I am not sure whether the city has already sent those 80 police officers packing, but as the commenters in the other thread rightly suggest, an acquittal verdict seems likely to put Oakland in a state of, um, "disquiet."
. . . also. Somewhat apropos to this thread is this story about a BART officer who tased a fleeing man at Downtown Berkeley for fare evasion. Without sharing my own thoughts, suffice it to say that Mehserle's jury likely knows nothing about it.
posted by Patrick Bageant at 12:29 PM
112 Comments:
Oakland police have staged riots to prepare for the possibility of protests post-verdict. http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=7506312
Graffiti around Lake Merritt related to the case has been removed. http://www.sfgate.com/cgi-bin/blogs/abraham/detail??blogid=95&entry_id=66891
My office in downtown Oakland is closing immediately upon news that the verdict is in, and we've been told to avoid BART on our commute home that day.
I'm interested to see what happens, but I wonder if an L.A. jury really would acquit. I also wonder if there will be protests regardless of what the verdict is.
I am in Downtown Oakland too. I am interested to see what happens today since they have taken first degree murder off the table. That being said, I have heard nothing.
Also, thoughts on Judge Perry's comment that if he fears riots, he may release the verdict on Saturday?
Bar Bri in oakland is canceled for friday due to "unsafe condition"
As far as I can make out from news reports, the evidence presented on the Defendant’s intent—specifically, whether he confused his gun for his taser—is as follows:
Defendant's evidence:
1. D testimony that he was confused.
2. Video arguably shows D looking dumbfounded and saying “Oh shit, I shot him.”
3. Witness testimony: D appeared shocked after pulling trigger.
4. Expert testimony: D could have confused gun with taser.
5. Expert testimony: taser use would have been justified.
Prosecutor’s rebuttal:
1. D didn’t immediately mention confusion, and may have changed his story.
2. Video arguably shows D looking at gun before shooting.
3. D’s gun and taser weigh, look, and were holstered differently.
4. Witness testimony: D was trained not to confuse a gun with a taser.
Is that everything?
Carbolic: pretty much what you said, plus he shot an unarmed man in the back with fucking pistol.
Carbolic,
but you forgot what many people are focusing on.... the shooter is a white police officer, and the victim is a young black man.
And the diversity on the jury consists of one indian man.
3:00--Believe it or not, there's no res ipsa loquitur when it comes to murder charges.
3:04--I can't tell if you mean that the jury is nearly all white (favoring acquittal) or nearly all black (favoring conviction).
I realize that the verdict will turn on (1) the credibility the jury attaches to the testimony (which I can't assess, not being there), and (2) the opinions and attitudes that the jury brings into the courthouse. But this being a law blog, let's just pretend that the second point isn't determinative--pretty please?
3:04 here,
almost all White. And one juror is apparently leaving on vacation on Tuesday and so will be replaced by an alternate if the jury is still deliberating.
Carbolic, I agree that it will come down to a credibility determination.
3:04 here,
almost all White. And one juror is apparently leaving on vacation on Tuesday and so will be replaced by an alternate if the jury is still deliberating.
Carbolic, I agree that it will come down to a credibility determination.
3:00 -
I hope for your sake you don't get a bar question asking you to differentiate between actus reus and mens rea.
It's too bad that the black community only cares about the welfare of its members when the violence comes from someone white. It's disappointing that despite the high numbers of violent crimes committed by blacks against blacks we are not outraged in the same way.
To the anonymous poster before, the black community all over this nation has held MANY protests, vigils and marches due to black on black crime. You don't hear about them unless MAYBE you live in those areas due to selective media reports, you forgot about the more publicized Million Man March on Washington. So before you make a statement on what the black community DOES NOT do, do your research first.
8:55:
good point. I have to confess, I am one of the people who has to say gets lost in the publicity.
However, I do have to say, that though I understand the sentiments (I really do) underlying the vitrol at Mehserle, I think emotions are overriding the facts. Many people see white cop shooting black man and think guilty. where are the facts?
I may get attacked in the next post, but I really don't see them and would really love it if someone could point out FACTS and not statistics.
When was the last protest in Oakland? The only protest/vigil/march you mention took place fifteen years ago.
And while certainly there are people who make this their primary concern, it is disappointing that Al Sharpton is out trying to figure out who killed Michael Jackson instead of using his status within the community to address the tough issues.
Last few points aside, I'd like to keep this thread--and ideally, the Mehserle trial in general--from being subsumed into race politics.
Again, I'm not in court, so I can't really evaluate the evidence. Still, based on the types of evidence submitted on both sides, it seems like the prosecution's evidence wouldn't be enough to prove murder or manslaughter beyond a reasonable doubt. Of course, civil liability would be an entirely different story.
Agree with you Carbolic
Can an aspiring crim law prof give a short tutorial on the intersection of mens rea, "beyond a reasonable doubt," and the reasonable person standard for involuntary manslaughter?
That seems like the most probable (and just) outcome, b/c as I understand it, the reasoning would go something like this:
-- A reasonable police officer wouldn't feel the need to use serious force on someone lying on the ground surrounded by cops.
-- Even if he did, a reasonable officer wouldn't draw a gun when he meant to draw a taser.
-- Even if he did, a reasonable police officer would be able to tell the difference between a gun and a taser.
-- Even if he couldn't tell the difference in the split second after drawing, a reasonable police officer should have taken the additional half-beat to confirm he was holding the right weapon -- especially b/c his life wasn't in danger.
So it seems like a pretty clear case for involuntary or negligent manslaughter.
But, in this area, what does the jury needs to be convinced of "beyond a reasonable doubt" -- that the officer had a grossly negligent state of mind? That a reasonable officer would have behaved differently in that situation? And what is our "reasonable man" standard -- reasonable person, reasonable cop, reasonable BART cop, reasonable BART cop with little experience?
Inquiring minds want to know.
Does he need to be charged with involuntary manslaughter to be convicted of it, or is the jury permitted to parse between voluntary and involuntary if he is just generally charged with manslaughter? I assume that being charged with manslaughter implies voluntary, but I'm sure were I to spend the twenty seconds it took writing this and searched for the answer, I would obviate someone doing the work for me.
@ 9:12 (specific answer towards the end)
Well, first, certainly the prosecution has a tough row to hoe on the 2nd degree murder front. We've got:
Intent to kill: If the jurors believe Mehserle at least somewhat, clearly he didn't intend to kill Grant if he thought he was reaching for his gun. Even if they don't believe Mehserle, it would take some tough-minded folk to think he just shot Grant in the back for shits and giggles.
Intent to do serious bodily harm: See above
Reckless indifference to human life: Here Mehserle would have had to be doing something reckless that he knew or should have known could cause death or serious bodily injury. If Mehserle had shot a rubber bullet at close range, that would probably do the trick. It wasn't as if Mehserle knew or should have known that a gun would cause death. He argues he didn't even know it WAS a gun so, again, if he's believed at all I don't see how this can be extreme recklessness.
Voluntary MS:
Heat of Passion: I don't know how they're going to get this one in. There was no sufficient provocation in the tape and none that I've heard from the testimony. Even then, it would require Mehserle admit that he killed Grant (see above).
Imperfect Self-Defense: Did Mehserle have an honest but mistaken belief in his need to use the gun? Again, he stated he didn't even think he had the gun. I don't know how the jury can find imperfect self-defense when the defendant doesn't even argue self-defense. However, there apparently was some testimony that Mehserle drew the "taser" because he though Grant was reaching for something in his front jeans pocket (a weapon?). Pretty unreasonable to think that either Grant had something in his front jeans pocket or that Grant could actually use whatever was there since he was face down with another officer's knee on his head. But maybe the jury could think honest and unreasonable fear for life and limb (but again, see no pleading above).
So your actual question. Involuntary Manslaughter:
I think this is actually the way to go here if the jury thinks something is warranted. From the legal standpoint, there needs to be something beyond the "reasonable person" duty/breach torts standard. Criminal negligence is something more akin to tort recklessness, e.g. there doesn't need to be knowledge or imputed knowledge of death or serious bodily injury, but it has to be an extreme act where risk is foreseeable. So, reaching for a weapon and shooting it without checking whether it really was a taser and not your gun (especially when the two weigh and feel different and are located on opposite sides of the body), is a pretty damn negligent act.
So, the last question is what's the mens rea. My gut, without having the statute in front of me, is that this is a general intent crime. Mehserle must have intended his actions, but need not have intended the outcome. Logically, one can't intend to do a criminally negligent act. If Mehserle argues that he "blacked out" and involuntarily pulled his weapon and shot, perhaps you could get out of the mens rea altogether. But other than that, he admitted he pulled something, the question is what he thought he pulled and whether it was grossly unreasonable for him to have done it.
As far as the reasonableness standard, I believe it's akin to tort: reasonableness of a person under the circumstances taking into account any special knowledge/skill/training. So, reasonable police officer in the circumstances. I don't think that necessarily helps Mehserle.
@ 9:12 (specific answer towards the end)
Well, first, certainly the prosecution has a tough row to hoe on the 2nd degree murder front. We've got:
Intent to kill: If the jurors believe Mehserle at least somewhat, clearly he didn't intend to kill Grant if he thought he was reaching for his gun. Even if they don't believe Mehserle, it would take some tough-minded folk to think he just shot Grant in the back for shits and giggles.
Intent to do serious bodily harm: See above
Reckless indifference to human life: Here Mehserle would have had to be doing something reckless that he knew or should have known could cause death or serious bodily injury. If Mehserle had shot a rubber bullet at close range, that would probably do the trick. It wasn't as if Mehserle knew or should have known that a gun would cause death. He argues he didn't even know it WAS a gun so, again, if he's believed at all I don't see how this can be extreme recklessness.
Voluntary MS:
Heat of Passion: I don't know how they're going to get this one in. There was no sufficient provocation in the tape and none that I've heard from the testimony. Even then, it would require Mehserle admit that he killed Grant (see above).
Imperfect Self-Defense: Did Mehserle have an honest but mistaken belief in his need to use the gun? Again, he stated he didn't even think he had the gun. I don't know how the jury can find imperfect self-defense when the defendant doesn't even argue self-defense. However, there apparently was some testimony that Mehserle drew the "taser" because he though Grant was reaching for something in his front jeans pocket (a weapon?). Pretty unreasonable to think that either Grant had something in his front jeans pocket or that Grant could actually use whatever was there since he was face down with another officer's knee on his head. But maybe the jury could think honest and unreasonable fear for life and limb (but again, see no pleading above).
So your actual question. Involuntary Manslaughter:
I think this is actually the way to go here if the jury thinks something is warranted. From the legal standpoint, there needs to be something beyond the "reasonable person" duty/breach torts standard. Criminal negligence is something more akin to tort recklessness, e.g. there doesn't need to be knowledge or imputed knowledge of death or serious bodily injury, but it has to be an extreme act where risk is foreseeable. So, reaching for a weapon and shooting it without checking whether it really was a taser and not your gun (especially when the two weigh and feel different and are located on opposite sides of the body), is a pretty damn negligent act.
So, the last question is what's the mens rea. My gut, without having the statute in front of me, is that this is a general intent crime. Mehserle must have intended his actions, but need not have intended the outcome. Logically, one can't intend to do a criminally negligent act. If Mehserle argues that he "blacked out" and involuntarily pulled his weapon and shot, perhaps you could get out of the mens rea altogether. But other than that, he admitted he pulled something, the question is what he thought he pulled and whether it was grossly unreasonable for him to have done it.
As far as the reasonableness standard, I believe it's akin to tort: reasonableness of a person under the circumstances taking into account any special knowledge/skill/training. So, reasonable police officer in the circumstances. I don't think that necessarily helps Mehserle.
[cont...]
That's the legal standard. Though I'd bet the way it actually works is that a jury's got a choice in-between murder and nothing, and they think something really fishy happened, they'll go with involuntary. That's why the defense team wanted to gamble with just a 2nd degree charge, thinking that the jury would simply not go to that extreme (plus they've got a good case that the evidence simply doesn't support it). But as someone else pointed out, the judge is right to charge the jury on lesser included offenses that have sufficient evidence.
I think a reasonable officer that had the same training as Mehserle could mistake his gun for his taser.
I think a reasonable officer in the same situation as Mehserle could think that serious force was necessary.
In case you are like me and dependent on public transportation,
bart has set up nifty alerts that you can sign up for so you won't accidentally walk into a bad situation or get stuck on the BART.
I encourage anyone thinking of using the bart from today through the middle of next week from anywhere to anywhere to sign up.
bart.gov/alerts.
9:12--Your tutorial would be better if you started with the elements of the crime and moved on from there. To be honest, I'm having a hard time figuring out what you are trying to say.
Let's assume that the jury accepts Mehserle's claim that he meant to fire his taser. In order to satisfy the elements of involuntary manslaughter, he must have acting either with criminal negligence or during the commission of a non-felony-murder crime.
The defense has submitted uncontroverted (as far as I can tell) testimony that Mehserle would have been justified in tasering the victim. As a result, the only hook for manslaughter would be if confusing the gun for the taser is criminally negligent.
I simply don't see how mistaking one handheld, belt-carried weapon with another handheld, belt-carried weapon can meet that standard--especially during the tense and quick-moving scenario of subdoing a person resisting arrest (supposedly).
10:15--I like your analysis. But I think courts give the benefit of doubt to police officers, who are often forced to make quick decisions in potentially dangerous situations.
Race Wars are so '94.
I'm worried about the true victims of riots: korean grocery store owners.
@ Carbolic
I don't believe there's any misdemeanor-manslaughter rule in CA, so it can only be involuntary manslaughter if he was acting with criminal negligence.
192. Manslaughter is the unlawful killing of a human being without
malice. It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular--
(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.
This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
"Gross negligence," as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.
@ 5:12
Huh, go figure.
In reality, none of this legal analysis matters because the jury is gonna do whatever the hell it wants to do anyway.
Concur. What I want to know is this: will the jury will be returning a general verdict?
decent summary of what's going on: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/02/MNMO1E87UM.DTL&type=newsbayarea
also, the Alameda County Sherriff's department is the "riot police" -- they're trained for and in charge of controlling mass unrest. of course OPD will be involved, but the layoffs should affect the riots too much.
jury has it... predictions on the length of deliberations? I am going to go for 45 minutes if they find him not guilty. the longer is stretches out, the more likely that they are going to find him guilty of something. Because, the only way they can acquit is if they believed he thought the gun was a taser and that belief was not criminally negligent.
Deliberations could be longer even for acquittal; especially considering that some jurors may feel torn between what the law requires and what they feel would be "just."
Then again, they may want to finish quick so they can enjoy the 4th of July.
Sean, why does that reasoning apply to an acquittal verdict but not a guilty verdict?
I think it applies equally to both; the above anon poster said that a verdict not guilty would be 45 minutes. I was simply providing a context in which that would not be the case. I did not dispute the anon poster's claim that longer deliberations could result ina guilty verdict.
If I were on that jury, I'd just go along with whomever talks the loudest and just disregard what the law actually requires. I would hate for deliberations to ruin my annual Fourth of July BBQ.
10-2 hung jury in favor of involuntary manslaughter.
3:45, you must have done McBaine last spring.
"There is a 15-minute delay on the Fremont Line in the Dublin / Pleasanton, Fremont and SFO directions due to police activity." Wish I weren't BARTing back from SF in a few minutes!
Deliberations postponed until Tuesday.
Listening to the news coverage of this, I've been amazed at how poorly the general public understands criminal culpability. Many of the people interviewed on KQED yesterday said things like "How could he not be guilty? You can see on the video that he murdered him. It's indisputable." Follow-up on manslaughter: "We would be very disappointed with a manslaughter verdict."
1) You don't get to choose which verdicts you will tolerate and still claim to value our criminal justice system. 2) Do people really not know that the crime of murder requires a culpable mental state that cannot be proven by cell phone cameras? Maybe the justice system needs better PR, because mens rea is kind of a fundamental part of the equation.
I understand that this is a very emotional issue that has become intertwined with larger problems like racial injustice and police brutality, but people need to understand that "justice" in the courtroom is not the same thing as social justice. This trial could get us the former, but it will not bring us any closer to the latter, regardless of the verdict. I just hope the acts of one really stupid man don't cause any more harm than they already have.
I'll admit that I didn't know anything about mens rea or culpable mental states before I started law school.
Fair point, I guess I didn't either. We need to make a PSA or something
Have y'all seen the video? I think there's a plausible case for deliberateness in the officer's actions.
The difference between a taser and a gun is pretty large, from the weight to the balance to how the grips feel. Any officer who has undergone a standard amount of training should be able to tell the difference by feel. If you're sighting on a taser, which is how police are trained to fire their weapons, you'll notice immediately that the taster is colored differently than a police service weapon.
juror sick. No verdict today.
Tomorrow alternate will be brought in for ANOTHER juror so deliberations are going to start over again.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/06/BAIC1EA4LC.DTL
What if the vacationing juror publicly says that s/he would have favored the opposite of whatever verdict the jury reaches?
10:06, then if the verdict was not guilty (meaning the juror said he/she would have voted to convict) more anger and rioting.
Juror sick? Juror on vacation? Is this the laziest jury pool ever, or are they just afraid to issue a verdict. I'm actually surprised the Judge is putting up with this. In most of the jury trials I've seen, the judges have not been very tolerant of excuses from their jurors. I mean it's a constitutional duty, after all. It kind of takes priority over your annual Branson outing.
Dan,
I have to politely dispute one of your comments. I think it is nice of the judge to allow this guy to take his vacation.
Many hotels/airlines/etc will not issue refunds, so this guy would potentially (depending on where he was going) have been out a lot of money. Additionally, maybe he has kids who have been looking forward to this vacation for ages.
I also have to assume that this guy had to show the judge nonrefundable payments or some other compelling reason for the judge to put up with it.
I do agree with your comment about the illness excuse unless this juror were really sick. Also, aren't there three alternates? Maybe the judge didn't want to use up two alternates and have only one alternate standing between a mistrial.
I don't know. I'm troubled by seating a juror that you know might be likely to dip out of deliberations due to vacation plans. I'm fine with honoring the plans, but then, the juror shouldn't have been there to begin with.
The judge knew ahead of time (during jury selection) this this juror had a potential conflict and sat him anyway, meanwhile promising the juror that he would get to take his vacation. Don't know why he didn't just excuse that juror and seat someone with no conflict. when has any trial EVER gone according to schedule?
but I agree with a previous poster. Shit will definitely go down if the excused juror speaks out publicly about what he would have done.
At this rate, they might have a verdict by 2012.
Seriously. One of my friends and I were talking. We think maybe the judge thinks this is calming tensions, but I think the anticipation is making it worse...
Maybe he thinks the police etc are getting more of a chance to prep (tomorrow they are starting some campaign where they are handing out free hot dogs and talking peace) but the heightened anticipation is also heightening emotions. More people are getting a chance to hear about it.
So this delay tactic could also backfire on the city of Oakland. (Note, I said City of Oakland, because whatever Judge Perry does in LA does is going to come back to Oakland.)
Sorry if I sound irritated, but I am. I think its slightly irresponsible of the Judge to let tensions get this high.
Jurors asked for clarification regarding Voluntary Manslaughter on Friday... that is bad news for Mehserle.
And what was the judge supposed to do? Say "no, you may not seek medical attention?"
Yes, it was silly for the judge and attorneys to seat a juror that was planning a vacation, but the judge has no control of the health of the jurors so give the guy a break.
Given the hooky rate, they'll be asking for clarification on the legal standards this coming Friday as well.
I know it's uncouth to question a trial judge's discretion on something like the this . . . but a guy is facing a second degree murder charge. By way of comparison, those who had Professor Evidence (the queen of balancing interests) know that a doctor's appointment will not excuse a student from being on call.
Given the hooky rate, they'll be asking for clarification on the legal standards this coming Friday as well.
I know it's uncouth to question a trial judge's discretion on something like the this . . . but a guy is facing a second degree murder charge. By way of comparison, those who had Professor Evidence (the queen of balancing interests) know that a doctor's appointment will not excuse a student from being on call.
11:04 here,
One thing is, I think the Judge may be doing this on purpose because he thinks it will calm tensions and give Oakland more time to prep.
Remember this is the same judge who said he would delay reading the verdict to Saturday from Friday to help assuage riots.
That is the reason that I do call the judge out on some of this.
what is taking so long....
The verdict is in; it'll be read at 4 p.m. I'm getting sent home from Oakland now.
Good luck anyone. I will be taking a cab home from Oakland (as recommended) I urge all others relying on public transit to do the same.
Involuntary manslaughter
I think that article is incorrect with regard to sentencing; other internet source suggest that punishment should be between 2 and 4 years imprisonment--not 14.
Quick thoughts:
1. This trial was really not covered all that much here in LA. So my perspective is off.
2. I do not see how the jury could have reached murder or voluntary. Voluntary is just flat out inapplicable. And Murder 2 was always a reach. Given that the standard is beyond a reasonable doubt, a reach is not good enough. This is an example of the system working. Period. Full stop.
3. I'm watching CBS5's live feed. They are doing a piss poor job explaining the charges / elements. And they're outright stoking the flames: "What's their reaction to Mehserle not serving any more time?"
Good. From what I know, the jury got this one right.
Now can we have an investigation into why the prosecutor sought conviction of Mehserle for first or second degree murder without any evidence of intent to kill?
I seriously think there should be an ethics investigation of the prosecutor. A theory that "he shot him, so he must have meant to shoot him" is not evidence.
The evidence that the gun weighed more than a taser, would have been holstered differently, etc. fell so far short of being proof beyond a reasonable doubt as to be downright laughable. It is very questionable whether there was even prima facie/probable cause evidence of second degree murder. There was simply no evidence up to any standard to support a charge of premeditation.
KCBS news is also interviewing people about whether they like the range of possible sentences, not about whether they agree with the jury not finding evidence of an intent to kill.
It's all about how long the man on the street thinks Mehserle should have gone to jail, not about whether he actually committed the crime of second degree murder.
My own thoughts . . . I feel like the involuntary murder conviction was appropriate, and after watching the videos I think, like Armen, that voluntary manslaughter or murder was out of the question. That said, I have to confess that I had expected an acquittal.
Two thoughts as to the prosecutor's decision to bring a murder charge. First, I'm not sure the prosecutor needs more than circumstantial evidence of intent to ethically bring a murder charge. I think all he needs is a good faith basis to believe the evidence he supports the charge, and (weird as it may sound) 'he shot him so he must have meant to kill' is indeed circumstantial evidence of intent. That it's not very strong means, as Armen pointed out, that the system worked here. Second, I strongly - strongly - suspect that the charging decisions had as much to do with the mayor's office trying to handle Oakland's anger as anything else. The charges were filed what, like, two weeks after the shooting?
Patrick: I agree with you. I expected an acquital.
Am I the only one who thinks this attorney is stoking the flames?
I would like to point out that a white police officer was just convicted of homicide for the killing of a black parolee, by a jury that included no African Americans.
The family's lawyer is seriously out of control.
Oh and the uncle just poured gasoline. "At war with the system?" "The jury was denied evidence to see the true person who committed murder." Uh sounds like improper character evidence to me.
To be honest, I see even involuntary manslaughter as a stretch (although given the racially charged elements of this case, it's probably the best that the defendant could have expected to get).
Usually, criminally negligent requires behavior above and beyond "I made a mistake." It's not enough to drive negligently and get into a car accident; the driver must have been street racing or driving under the influence or have some other exacerbating factor.
As a police officer, Mehserle was required to carry a gun and a taser, and to interject himself into confrontations occuring on BART. So where is the exacerbating factor here?
Are you guys talking about John Burris? He's a Boalt grad.
OK, if you're so confident, you should carry a gun and a taser on bart, then pull out the gun and shoot someone and claim you only meant to tase them. The fact that he was a police officer raises the care that he owed as someone who is highly trained and authorized to carry a gun. Just because the underlying reason was a mistake, it does not necessarily follow that the gravity of the mistake is below the level of criminal negligence. I didn't follow this trial closely, I don't know the evidence, but I don't see too much quibbling with the involuntary man verdict.
The quibbling is any suggestion that somehow this verdict is a miscarriage of justice. It's not. And Oscar Grant's uncle just did a great disservice to the legacy of the kid, the city of Oakland, and California's criminal justice system. Terrible.
Oh man. what is the grant family and their supporters thinking... they are going to cause a riot.
Armen: I guess I agree with you. I guess I just also do believe that it was a true accident.
Armen: Actually, I think you're example shows why it WASN'T criminally negligent.
There could indeed be criminal negligence when a random person (A) decides to walk around carrying a mix of lethal and nonlethal weapons, (B) decides to use one of these weapons on some random third party, and (C) negligently uses the wrong one. That mitigating factor would be "What the hell were you doing walking around heavily armed and then trying to shoot people with tasers?"
But police officers don't CHOOSE to carry firearms, or to occasionally subdue individuals. They're required to.
Or another example. Drag racing is criminally negligent, and so is chasing after another car. But police officers are sometimes required to engage in high speed car chases. Do we hold them to a higher standard of care than we do a drag racer? Or do we actually give them the benefit of the doubt, because they are speeding lawfully and are putting themselves in a dangerous situation on behalf of "society?"
Well we PERMIT them to carry guns and tasers because they are highly trained professionals who aren't as prone to making a mistake between the two as Carbolic's drunken tase-fest on BART. Right?
We can go back and forth ad infinitum on the meaning of a police officer using his firearm in public. The general legal principle is that a highly trained individual is held to the higher standard. If you want to give police officers the benefit of the doubt out of the requirements contained in the job, that's Carbolic's choice. There's no legal principle requiring such a result.
@4:23, I think you are way off base. I agree with you and the other commenters that involuntary ms is probably the right verdict here, but to suggest that they shouldn't have sought murder at all or should be SANCTIONED for doing so is flat out absurd.
Yes, we all pretty much believe that he meant to pull his taser. Apparently the jury believed this as well. But there is certainly enough evidence that a reasonable person could reach the opposite conclusion. I mean the guy reached in his pocket, pulled out a gun, and shot a person in the back. Then he paused, waited, and said "shit, I shot him." This is all the evidence of the event we have, beyond Meserle's word, and it is certainly not conclusive in either direction.
In fact, I think the prosecutor would have skirted the line for misconduct had he not brought a murder charge here. The case hinges entirely on intent, and we can't know what was in Meserle's mind. The only option in such a scenario is to bring the full range of charges and let the jury sort them out.
Everyone, take a moment to savor this moment. Carbolic used the wrong form of "you're/your." Sorry Carbolic, I had to take a small amount of glee in that.
Erin Murphy is quoted in this Reuters article (still as a UCB professor!): http://www.google.com/hostednews/ap/article/ALeqM5gT6GJGL3quMPjCe1oU1W2zvpFfcAD9GR6ORG0
Here is the thing though, if the jury bought the he meant to pull his taser, then why the gun enhancement.
thoughts on sentencing?
I mean isn't the gun enhancement simply applied when a gun is used? I didn't think there was any kind of intent requirement for sentencing enhancements.
...And the looting begins. Because stealing shoes from a Foot Locker is a logical way to express moral outrage.
Armen,
Perhaps police officers should be held to a higher standard but I don't think they are for their personal criminal conduct. I think you're importing tort principles here.
Mind you, the looters are random "anarchist" white kids according to the SFGATE reports...
Well I don't practice criminal law, but as I understand the involuntary man statute, it requires gross negligence, which IS a principle borrowed from tort law.
I also can't quite follow what point you're trying to make. When a police officer shoots in the line of duty, we apply the same standard as you and me? If we take a lay person and set that person's ability to distinguish between a gun and taser in an instant, while full of adrenaline, as the baseline, I think cops must necessarily fall above that base line because they are trained and are expected to use the right force that we as the public have entrusted them. Failing to do so is not mere negligence but criminal. Carbolic thinks that goes the other way. You and I don't care guns and tasers every day, and are far less likely to make that mistake as a result, whereas police officers are called upon to use force, or even deadly force, at any given moment, therefore, the line must below the baseline. Reasonable minds can disagree. I just want to make sure I understand the ultimate point you're trying to make.
*carry
*be below
Was this a legally fair verdict? Maybe.
Was it a just verdict? Nope.
A police officer shot an unarmed, handcuffed man who was lying on the ground in the back from close range while his partner called the man a n*gger.
If nothing else, this fits VM pretty damn well. Cal. jury instructions for manslaughter:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;
AND
3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
Again with the standard caveats that this isn't my usual playground, how is there any evidence of a homicidal rage? There has to be provocation of such degree that it would induce a reasonable person into homicidal rage. The theory is that this negates any malice (intent to kill) that the person may have had. In other words, at least in this case, it's difficult to argue that he both showed intent to kill and that he's guilty of voluntary manslaughter.
The alternative theory of manslaughter, if I'm not mistaken is the self-defense theory or something like that. It's where you thought your life was in danger but you were wrong. I don't think that one applies since there's been no evidence put forth by anyone that Mehserle believed his life was in danger.
Here's my broader query to those who are bothered by the verdict: would you feel comfortable sentencing someone else, say yourself, to prison for the rest of your life based on evidence this thin? Why does the defendant's job, or the circumstances of the homicide, matter in terms of the burden that the government must bear to prove the charge of murder? Do we convict someone of murder because of the outrage surrounding the killing? I think the prosecutors have a lot of built in advantages in our system, I just don't feel comfortable giving them even more leeway, especially when it comes to their burden of persuasion and production in criminal matters.
Where are reports that his partner called him a nigger? I hadn't heard that before.
And yes, Grant was unarmed and handcuffed, but he was resisting the arrest still. You can try to paint him as an innocent victim, but as the video shows, he was not. Police officers have to make very quick decisions in response to the situations they are facing. When faced with a person that continues to fight against the police, Mesherle properly chose to tase him. Unfortunately, he grabbed his gun instead.
I agree that this was not a just verdict. He should have been acquitted.
I think, respectfully, that 9:29 is confused about the jury instructions. Remember that Mehserle is the defendant. So, for 9:29's analysis to be appropriate, 9:29 has to think that Mehserle was provoked to shoot Grant. Based on what? His partner's slurs?
The facts as 9:29 has given them (handcuffs, face down, etc.) prove that voluntary manslaughter is absolutely out of the question. There was no provocation.
Apparently the Feds are conducting their own investigation: http://www.eastbayexpress.com/92510/archives/2010/07/09/mehserle-could-face-federal-criminal-charges
My double jeopardy meter just went off. God, I hate the bar exam.
Pat, there is no double jeopardy issue because the charge would be violation of Grant's civil rights under the color of law. 18 U. S. C. § 242.
Oh, I didn't say there would be. I just said my meter went off. Separate elements, separate offenses, blah, blah, blah.
Ugh.
It's too bad that Obama administration is so concerned with the imaginary racial implications in this issue rather than the real issues facing this nation.
Racial politics... disgusting.
I liked this article so I thought I would share it.
Seriously, I think the feds are acting pursuant to Mayor Dellums' request in an attempt to placate the people of Oakland that they are going to investigate and look into this.
http://www.csmonitor.com/USA/Justice/2010/0709/Mehserle-trial-verdict-draws-violence-to-Oakland-legal-scrutiny
I suspect that the federal investigation is mostly for show and won't result in any actual charges.
For one thing, the jury's decision indicates that they believed that Mehserle intended to fire his taser, not his gun. If so, then Mehserle didn't willfully deprive Grant of his constitutional rights.
Armen: think of the public policy implications of what you are arguing regarding the standard of care. Imagine two scenarios:
1. A convicted murder breaks out of prison, grabs a hostage, and speeds away in the getaway car. For the safety of the hostage and the public, the police must pursue.
2. The scenario Mehserle faced: An officer is informed of a violent confrontation on a BART train. Resolving this dispute to the safety of other passengers would require the use of nonlethal force.
Increasing the threat of criminal liability for negligence would serve to dissuade ANY use of force or potentially dangerous activity, no matter how justified it might be. How can we expect a police officer to insert themselves in dangerous situations if we are going to punish them more harshly if they make a mistake?
Also, you're assuming that a police officer is "trained" to not make a mistake. But I think this trial shows that sometimes the training is insufficient. Should we imprison the officer when her department fails to properly train her?
Carbolic, I don't think it is correct that increasing the threat for criminal negligence would "serve to dissuade ANY use of force or potentially dangerous activity, no matter how justified it might be." It would serve to dissuade SOME use of deadly force in situations where it might not be justified.
As a background matter, you assume that it is indeed appropriate to use a taser in situations where it would not be appropriate to use lethal force.
That's what many people think, but not every police department sees it that way; tasers do indeed kill people. Many departments therefore permit officers to tase only when the facts would support lethal force (e.g., knife wielding guy in the street). If that policy were in place on BART, this would be a non-issue, because the "I thought I was grabbing my taser" argument would be no excuse.
It would also resolve the negligent use of deadly force dispute between you and Armen - reasonable apprehension of bodily harm would be present, or else it would not.
*increasing the threat _of_ criminal negligence
I.e., decreasing the threshold of liability.
Patrick,
Provocation does not have to occur the second before the trigger is pulled, but only within a time period before an adequate time to "cool off." There is certainly a perceived provocation.
Regardless, the use of unnecessary force has become much too common in the us. The taser was unneeded in this situation. As the video shows, grant was not a threat to either officer. These are the sorts of things that will happen when police are given the license to overreact.
That first paragraph is just a little too cute for my taste. It has to be provocation to evoke a homicidal rage. Leaving that last part out is just disingenuous.
The latter paragraph is irrelevant. How does "he should not have pulled a taser" give us any insight into any of the essential elements?
I disagree. I think the videos show that Grant was a threat to the officers.
1:22, I still disagree.
Provocation is an act by the victim that society deems would cause a reasonable person to act violently. Not just a threat, not just an insult, but something really provoking, like catching your spouse in bed with another person, and the like. It's like the law says "well, yeah, you murdered him, but it was sort of understandable, so how about VM instead?"
Further, provocation is used ONLY to reduce a murder charge to voluntary manslaughter. So, if you think provocation applies here, then you think (1) a murder charge was appropriate, and (2) it was reasonable in light of Grant's conduct for Mehserle to shoot him.
The facts as you set them forth don't make it sound like any reasonable jury could think Grant "provoked" Mesherle into a homicidal rage.
As to cooling off, well yeah, the provocation can be before the homicidal act, but remember that the whole time Grant was subdued on the ground, was cool off time.
I'm sorry, I just don't see anything that even resembles provocation.
I love how all of a sudden everyone is up in arms about protecting the defendant's constitutional rights -- "reasonable doubt!" "prosecutor should be sanctioned for even thinking about murder!" Where is that same outrage EVERY SINGLE DAY when prosecutors overcharge and jurors convict on thin evidence?
Involuntary manslaughter probably was the right verdict here, since there's no proof beyond a reasonable doubt that his intent was anything besides really really fucking negligent. But, those of you arguing acquittal, someone died. You don't get to shoot someone in the back and walk -- not if you're a cop or anyone else(just imagine for a second, ANY situation in which someone who wasn't a cop -- maybe a parolee, for example -- accidentally shot someone. Honestly, is there any situation in which you wouldn't think that carried some sort of criminal culpability?)
Absolutely, race played into the way this case played out and the reaction to the verdict. But if you're convincing yourself that race ISN'T playing a role in your feelings on the case, you're deluding yourselves.
I'm starting the slow-clap for 1:46.
Clap.
Clap.
Clap.
A letter written by Mehserle. For those of you who think he really isn't sorry or that it wasn't an accident...
http://www.mercurynews.com/ci_15478265?source=most_viewed
Armen,
I'm not sure I follow your argument regarding training and higher standards for liability. Are you saying that someone who is trained to use a firearm should be held to a higher standard than someone who is not? Why should training matter at all? Either you safely operate a gun or you don't. Moreover, in the non-police context your argument would seem to discourage people from properly training themselves in the use of firearms, as it would increase their liability (even though it would decrease the chance they would use a firearm negligently in the first place).
Of course I do think that police, like all people, should be held to a very high standard when operating a firearm, but I don't see why that standard should change based on the amount of training received.
Now if someone is trained to use a firearm, that does seem to make it less believable when they claim to have made a mistake in the use of it, which is the only relevance I see to the Grant shooting.
Not a law student, but I enjoy my flame-magnet status.
<> On training discussed, police training would elevate the standard of reasonable care. Why? The defendant is then compared to another officer in the reasonable person test, one who has a good feel for the weight and feel of a fire arm. This would certainly be higher than a person who doesn't even know how to rack the slide.
<> Another point on training that no one addressed, I believe that the paramilitary style training that officers receive facilitates excessive force. Officers are taught and told things like, "Even a minor traffic stop could end up with a bullet in your head!" Fact is, this is statistically far fetched. But, nonetheless, officers respond to even minor incidents with excessive levels of fear and epinephrine. I would've addressed this were I the defense.
<> On the gun/taser confusion, with poor training - which the D had, with spikes of epinephrine pumping through his system, and in an impulsive reaction, I can easily imagine swithcing them up.
It never ceases to amaze me how much race is a factor here. It also amazes me how secretive BART PD policies and procedures are. You'd think there'd be more of a focus on this.
SC: "[J]ust imagine for a second, ANY situation in which someone who wasn't a cop -- maybe a parolee, for example -- accidentally shot someone. Honestly, is there any situation in which you wouldn't think that carried some sort of criminal culpability?"
Hey, remember a couple of years ago when the Vice President of the United States negligently shot a guy in the face with a shotgun?
The presence of a firearm doesn't automatically convert negligence to criminal negligence. Also, manslaughter can't be proven merely by pointing to the actus reus.
Armen: I guess you and I simply disagree on standard that should be applied to first responders.
As for the distinction between criminal and "mere negligence," I think this case shows that it is quite murky. Just to be clear, I don't think that the Mehserle conviction was indefensible; I just don't agree with it.
"And even if that were the standard, handling a deadly weapon that results in a death is pretty much the definition of criminal negligence."
Well, that's obviously wrong. For one thing, almost anything can be considered a deadly weapon--the most common example being a moving vehicle. But we don't charge every driver that causes a fatal car accident with involuntary manslaughter. And I think it's safe to say that the Supreme Court doesn't see the mere presence or use of a firearm as proof of criminal negligence.
Once again N&B goes from crypto-fascist to fascist.
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