A trial was held and a verdict reached. But as a judge prepares to sentence former BART police Officer Johannes Mehserle on Friday for killing an unarmed rider, the prosecution and defense are still fighting over who won the hearts of jurors on the case's key question.
Prosecutors say Mehserle should be sentenced for intentionally shooting Oscar Grant during an arrest on Jan. 1, 2009, at the Fruitvale Station in Oakland. The defense says he should be sentenced for a tragic accident that occurred when he confused his Taser with his gun.
How Judge Robert Perry resolves the disagreement could mean a difference of several years in state prison for Mehserle, or even prompt a sentence of probation only.
The battle rages four months after Mehserle, 28, was convicted of involuntary manslaughter. As the defense points out in asking for a lenient sentence, jurors acquitted Mehserle of murder and voluntary manslaughter, both of which require an intent to kill.
Prosecutors seeking a longer prison term say that although jurors found that Mehserle did not intend to kill Grant, they did conclude that he intended to shoot him.
Jurors signaled that when they convicted Mehserle of a gun enhancement, the prosecution says, a charge that required the panel to find that the defendant fired a gun on purpose.
Defense attorneys say it is not possible that the jury found that Mehserle intended to shoot Grant from a distance of just a few feet, but not kill him. Their conclusion: The jury believed that the shooting was an accident but misapplied the gun enhancement.
Heated words
The disagreement is heating up as sentencing nears. On Tuesday, defense attorney Michael Rains said in a court filing that prosecutors' refusal to concede that the jury believed Mehserle when he testified he didn't mean to shoot Grant "borders on misconduct" and is part of a "dense fog of avoidance, obfuscation, misdirection and patent falsehoods."
Prosecutor David Stein said the defense was trying to substitute its judgment for that of the jurors.
"It's a bit of a mess," said Laurie Levenson, a Loyola Law School professor who watched parts of the trial, which was moved to Los Angeles from Alameda County because of extensive publicity in the Bay Area about the killing. "We tolerate inconsistent verdicts, but this one is of such great consequence that it might give the judge pause."
Overlooked charge
The prime inconsistency involves the gun-enhancement conviction, which could add several years to Mehserle's sentence.
During the trial, attorneys focused so heavily on the issue of whether Mehserle had committed murder that they never mentioned the gun charge. But while involuntary manslaughter carries a sentence of as much as four years in state prison, the gun crime means as much as 10 years.
"Now it's the tail wagging the dog," Levenson said.
Judge Perry has a lot to sort out on the gun question. Not only do the two sides disagree on whether police officers should be punished for using firearms they are required to carry, they differ on something more basic – what jurors were saying when they convicted Mehserle of the gun count.
Instructions key
The jury's verdict form said only that Mehserle "personally used a firearm … within the meaning of Penal Code Section 12022.5a." The shooting was captured on video, and no one contests that point.
But the judge instructed the jurors that the enhancement referred to an intentional firing of a gun. Prosecutors say jurors followed those instructions, concluding that Mehserle lost control and chose to shoot Grant, 22, as the Hayward man lay unarmed on the Fruitvale platform.
Defense attorneys, though, say that when the jurors acquitted Mehserle of murder – agreeing that he did not intend to kill Grant – that meant they believed the former officer when he said he had mistakenly shot Grant while intending to subdue him with a Taser.
According to the defense, jurors clearly ignored or misunderstood the judge's instructions on the gun enhancement count when they convicted Mehserle of it. They want the gun conviction thrown out.
Jury needed help
Jurors asked about the gun enhancement during deliberations, after getting no input from the lawyers. At 1:20 p.m. on July 8, they sent a note to Perry asking, "What is Penal Code Section 12022.5?"
The judge, with the consent of both sides, replied in a note that the section was "an allegation that the defendant personally used a firearm."
He made no mention of the issue of intentional use. But he added that the elements of the crime that prosecutors had to prove were in the instructions, which the judge had given to the jurors in written form.
The jury turned in its verdict less than 10 minutes later.
Plea for probation
Whether the enhancement is enforced or thrown out, the question of whether Mehserle told the truth at trial could be pivotal to his sentence.
The defense compared him to a handful of other officers in recent years who have said they mistook their gun for a Taser after a shooting. None was charged criminally.
Prosecutors say the former BART officer lied on the stand at the trial when he said he had meant to fire his Taser, suggesting he had no remorse.
In general, the sentence for involuntary manslaughter is two, three or four years, and the gun enhancement requires an additional three, four or 10 years. The middle terms are meant to apply to average cases, with a judge able to adjust up or down depending on factors such as a defendant's record and the circumstances of a crime.
The defense, however, is asking for probation, which state law allows in involuntary manslaughter cases that are considered unusual.
How hearing works
On Friday, Judge Perry must first decide whether to give the defense a new trial on either count. Before sentencing, Grant's relatives and Mehserle will be given the opportunity to speak.
Defense attorneys have also turned in letters from Mehserle's supporters, including his girlfriend. She said the couple's son, born a day after the shooting, needs his father, who has been jailed since the verdict.
"How do I tell our son," she wrote, "that his father thinks about him every day and cries every time we talk?"
Grant's uncle, Cephus Johnson, said that he felt for the child, but that Grant's 6-year-old daughter was worse off.
Johnson said the sentence will send a message. To many community leaders, activists and others in the Bay Area, the shooting of a black man by a white officer underscored a larger problem of police abusing people of color with little accountability.
"People of color," he said, "now have the opportunity to witness whether the system will work."
With unrest having broken out at two Mehserle-related demonstrations in Oakland since January 2009, police are preparing for the possibility of protests after the sentencing. Holly Joshi, an Oakland police spokeswoman, said more officers will be on duty and will be helped by outside agencies if needed.
"We're prepared if anything should go awry," Joshi said, "but we're not anticipating anything."
