Jury deliberates on BART officer shooting

Jurors in the trial of Johannes Mehserle resumed their deliberations today. Meheserle was an Oakland transit police officer who shot and killed a black passenger, Oscar Grant, last year, as depicted in this video. The jury is in the process of deciding whether Mehserle will be guilty of second degree murder or voluntary or involuntary manslaughter.

The jury will not be considering a first degree murder charge because the judge ruled there was not enough evidence to convict Mehserle of first degree murder, although I would disagree.

Murder as defined by California penal code section 187 is “the unlawful killing of a human being, or a fetus with malice aforethought…”  The provision goes on to carve out exceptions for abortion, and section 188 explains that “malice may be express or implied.  It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

The video depicts very clearly that Mehserle deliberately shot the subject, who was struggling, but was lying flat on the ground.  Mehserle’s defense was that he mistakenly shot the victim instead of using his taser while trying to handcuff the victim (about 0:58 of the video).

However, this is questionable. The video shows Mehserle leaned over the victim at first; he then distances himself from Mr. Grant, shoots, and looks up, then back down. There is no indication of surprise, shock or mistake. Similarly, there are no gestures or actions from the officer whose back is facing the camera indicating shock, or that the action taken was an accident.

Thus, there is at least some evidence that the provocation was not “considerable” (who in their right mind thinks a man lying on the ground, outnumbered by armed men, is a considerable provocation?) or, that the “circumstances attending the killing show[ed] an abandoned and malignant heart.” I would think the argument certainly can be made that Mehserle manifested a deliberate intention unlawfully to take away the life of a fellow creature.

On the other hand, voluntary manslaughter is appropriate if the defendant would otherwise be guilty of murder, but the defendant acted out of sudden passion or a burst of rage. Juries are usually instructed that a voluntary manslaughter charge is only appropriate if the defendant not only was under the influence of intense emotion, but that the defendant was reasonable in that the provocation involved would have also caused an “average” person to react in the same way.

If the jury convicts Mehserle of voluntary manslaughter, our justice system indeed will be shown to be the joke that it is. I cannot think of a single person I know who would be provoked to shoot a person lying on the ground because they were wriggling around, much less conclude that the “average” person would do such a thing.

If anything, it seems much clearer there is zero evidence that Mehserle committed voluntary manslaughter, and this instruction should not have been given.

If the jury convicts Mehserle of voluntary manslaughter rather than second degree murder, they will be sending the message that laws do not apply to police officers the way they apply to you or me.

It is no excuse to whine about how hard an officer’s job is, and how difficult the circumstances they face are on a daily basis. It may be difficult to get a teaching credential and command the attention of 25+ children in a classroom, but teachers nevertheless go to jail if they molest children. No one is making excuses for the difficult job of teaching. There is no reduction of child molestation charges for teachers who engage in such despicable acts.

It is very difficult to get a law degree, but no one is defending lawyers who engage in malpractice or fraud because they suffered oh-so-hard through 7 years of additional schooling in addition to compulsory education.

It is extremely difficult to become a surgeon and constantly engage in risky surgeries, but no one thinks to cut them a break for bad results even when they make no mistakes – as evinced by the rampant incidence of frivolous medical malpractice cases all over the country. Certainly, surgeons don’t get any kind of break when they recklessly kill someone.

Teachers, doctors, lawyers and other professions don’t get excused for wrongdoings because society generally understands that child molestation, killing, and fraud are bad no matter how bad your day was, how hard your job is, or how much schooling you had. Being placed in a difficult situation or having a tough job is simply no excuse for killing someone for everyone else in society.

Police should be treated no differently.


Georgia Sand

Georgia (George) Sand is an attorney located in sunny California. She enjoys beer, jogging, the beach, music, and chatting with her cats in her spare time.

  • “Police should be treated no differently.”

    Amen, Jenn.

  • Jenn
  • Matt

    Good article Jenn. That last line sums up the exact point. Cops should be, and in fact ARE, no different then the rest of us.

  • Will Digg

    In my opinion those haters are the ones who don’t have a clue about what it’s like in the real world. It’s easy to sit in the comfortable confines of their living room and criticize about things that they have never experienced. Just let them feel the wrath of an out of control cop with an attitude once or twice and I bet they can immediately begin smelling those roses of the real world.

    Good job Jenn! Keep up the good work.

  • Jenn

    Thanks for reading, everyone! Appreciate the encouragement. A much nicer crowd over here than on Examiner, for sure…

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  • Whatever

    You all must have had some bad experiences with law enforcement and the government to become what you are here. It’s one thing to hold people accountable when the proof is there, it’s another to go looking for the slightest thing and then interpret it the way you want. You spend so much energy looking for the bad in others, why not focus on the good? For every story you dig up and twist to fit your way of thinking there are hundreds of positive stories of encounters with law enforcement. You all seem to want to excuse the erratic and disgusting behavior of these criminals and go after the cops who, unfortunately, make mistakes and have accidents. If this kid was a normal human and contributing positively to society then he never would have been involved in this accident and he might be alive today. Too bad his mama didn’t raise him right.

  • Jenn

    Focusing on the good when there is plenty of bad out there is a tool, or symptom of tyranny and fascism. There was nothing twisted here. He shot an unarmed man. If the cop’s mama had raised him right, he wouldn’t be out shooting unarmed people because they were wriggling on the ground and flouting authority. If any ordinary citizen had pinned down another citizen, and shot him in the back, it certainly would be charged as murder. Police must be held to the same laws and rules they swear to uphold

    Whatever – your arguments are illogical. Under your reasoning, if teachers molest children, we should really look past it, since teachers mostly do more good than evil. We should cut the Catholic church a break for all those children-molesting priests because the Catholic church mostly is ethical, with the exception of a few bad apples, and it’s really important to focus on the good! Why fight gang crime? Why fight hunger and poverty? Most people in America aren’t in gangs, and most people aren’t starving! I guess it’s not a problem then!

  • Jenn

    What proof do you want, exactly? We have an unarmed man wriggling on the ground, being held by two officers. The officer shoots him in the back. If that’s not murder, what is? If you’re going to take the clearest proof you have and say it’s insufficient, then I suppose police can never do wrong and can never be convicted of murder.

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  • Dr. Q
  • Jenn

    This is sick. What a joke. People drive me crazy! Is this jury out of their fucking mind? Yeah, I’m sure this officer feared for his life and was freaked out! He was so freaked out that after he shot and killed someone, he remembered police procedure perfectly, handcuffed the guy, and rolled his dead body over. Yeah, I’m sure when most people accidentally shoot and kill someone, that’s how they react. They don’t call an ambulance, attempt to resuscitate, or call for help or anything. They handcuff the person, and go “oh well.” And remember – UNTIL TRIAL, this officer told NO ONE that he mistook his gun for his taser. THREE other officers testified at trial that Mehserle never made any such claim after he killed Grant. WOW TOTALLY sounds like an accident!

    Involuntary manslaughter cases have involved things like not taking your very ill child to the doctor and locking your fire escape exits by accident and burning people to death. KNEEING SOMEONE IN THE NECK, PINNING THEM DOWN, AND SHOOTING THEM IN THE BACK IS NOT FUCKING INVOLUNTARY MANSLAUGHTER. IT IS MURDER, GODDAMMIT. IT IS SECOND DEGREE FOR SURE, IF NOT FIRST DEGREE! WHAT IS THIS SOCIETY COMING TO?!

  • Alowe

    Even if he HAD mistaken the gun for a Taser, what difference does it make? Are some deadly weapons somehow more acceptable to fire at restrained, unarmed men than others? Tasers kill, they just aren’t as good at killing as guns (in most circumstances – if I had a heart condition, I might take my chances with a bullet). If I killed a man with a 12 gauge slug, could I get off if I thought I was just shooting him with a load of birdshot from a 28 gauge?

  • Cradle2Grave

    welcome to the wild west!! society collapsing before your very eyes while the average man rides the candy lane fun bus to dullsville

    their ears are blocked. the people think they are free and secure but they are trapped and abandoned by an infinite layers of evil and corruption. you are officially the occupied United States.

  • Jenn

    Alowe – right on. Can’t agree with you more.

  • ML Lopel

    This is so far out of whack i don’t know what to say. How how how could a thinking jury come to a conclusion like that? Jenn you have it correct. How much more obvious could it be?

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  • Steve from Connecticut

    Ah…Where is the education on jury nullification when you need it. I would never in a million years choose a jury over a judge. The mindset of the people is quite different now then they would have been during the days of a free society. Picking a jurist in these times is like choosing a random person to operate a M-1 tank in a crowded city with absolutely no knowledge of how it works. 90% of Americans don’t even know their rights so how can they be expected to assemble evidence and lay a verdict?

  • Dr. Q

    Well, part of the problem is that prosecutors have way too much direction when it comes to striking potential jurors from the jury. They can strike people for completely arbitrary reasons. I’ve heard of prosecutors striking jurors for having long hair and other absurd reasons like that. I don’t doubt that most prosecutors use their power to strike jurors in order to secure convictions.

  • Jenn

    I would have to disagree that juries are worse than judges. I have read somewhere that roughly 90% of the time, judges agree with the jury’s decisions. And most of the disagreement in the remaining 10% stems from disagreement on the sentencing or damages awarded, not disagreement about the verdict.

    In this case, the judge would have done no better. The judge was the one who threw out the first degree murder charge to begin with, showing his very obvious bias. People just have a blind, idiotic love of power, authority and government. When it comes to someone in uniform, people no longer are able to think objectively.

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