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.


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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.