Other than one post, I’ve avoided posting about Mehserle for a year and a half now; however, since I run the risk of being directly impacted this week when the verdict is reached, I figured now was as good a time as any to give my opinion.
187. (a) Murder is the unlawful killing of a human being, or a fetus,
with malice aforethought.
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.
**I've not added the third as vehicular doesn't apply here.**
The judge instructed the jury regarding the charges saying, “The crime of second degree murder and the lesser included crime of voluntary manslaughter require proof of the union, or joint operation, of act and wrongful intent. For you to find a person guilty of either of these crimes that person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state. For you to find a person guilty of the crime of involuntary manslaughter, a lesser included offense to the crimes of second degree murder and voluntary manslaughter, a person must do an act with criminal negligence.”
There are more instructions in the 500s section of the jury instructions (that are length-prohibitive for posting). In that section, the judge goes into depth regarding the definitions and requirements for the three charges
Now, what is my opinion? I think Johannes Mehserle made a tragic error. I am glad he is no longer a police officer. Having said that, however, I don’t think the charges against him apply. Let’s keep in mind that a lot of my opinion stems from media coverage and my experience as a police officer. No, I wasn’t at the trial. No, I wasn’t on the BART platform on that day.
BART’s FTO program is five months long. (In my original BART post, I said 18 months, I have since learned differently). BART extends to four separate counties. That means the officers have to learn each county’s laws. In addition, they have to familiarize themselves with muni codes for each city BART travels through, not to mention all the jails and court systems associated with those cities/counties. All that on top of learning how to be a police officer as well. My point? Mehserle was a BART cop for two years. That means he was on his own for about 18 months. He was still a rookie. They say in order to be a competent police officer, one needs five years on the street. He was not an experienced police officer. I am not offering excuses, simply facts.
In my opinion, there is absolutely no intent associated with this incident. That takes second degree murder and voluntary manslaughter off the table. The judge instructed the jury, “The defendant is not guilty of second degree murder or the lesser included offense of voluntary manslaughter if he did not have the intent or mental state required to commit the crime because he mistakenly believed a fact, namely, that he had drawn his taser and not his firearm. If the defendant’s conduct would have been lawful under the facts as he believed them to be, he did not commit second degree murder or voluntary manslaughter.”
It has been purported that Mehserle believed he was drawing his taser. Let’s ignore the cell phone videos, media coverage, and witness statements for a moment and look at common sense. Does it make sense that an officer, rookie or vet, would pull his duty weapon on a crowded platform with witnesses everywhere in a day and age of cameras documenting one’s every move, and intentionally kill a man while he is on the ground and unarmed? Give me a break.
Voluntary manslaughter requires a killing in the heat of passion. The judge’s instructions were as follows: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if: 1) The defendant was provoked. 2) As a result of that provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgement AND 3) The provocation would have caused a peace officer of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgement.
I would argue Mehserle wasn’t provoked. I would argue he was there doing his job. But, for the sake of argument, let’s say #1 is met. Both in the trial and the Grant family statements to the media, much has been made of Mehserle’s lack of emotion on the night in question. #2 seems to be an impossibility to reach as well. Those two points alone call up enough reasonable doubt in my mind.
Finally, there is the third charge of involuntary manslaughter. From the jury instructions: “The defendant committed involuntary manslaughter if: 1) The defendant (a) committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed or (b) committed a lawful act, but acted with criminal negligence; and 2) The defendant’s acts unlawfully caused the death of another person.
It seems the key in this charge is “criminal negligence”. Once again, from the jury instruction: “A peace officer acts with criminal negligence when the way he acts is so different from the way an ordinarily careful peace officer would act in the same situation that his act amounts to a disregard for human life or an indifference to the consequences of that act….In considering whether the defendant’s conduct was criminally negligent, you must not consider the consequences of that conduct. You must focus on the question of whether the defendant’s conduct itself was reckless and whether his actions were such a departure from the actions of a reasonable peace officer in the same circumstances that his acts amounted to a disregard for human life or indifference to the consequences of his acts.”
The last instruction with regard to this charge is key. From the jury instruction: “In considering whether the defendant’s conduct was criminally negligent, you should consider all the evidence in this case, including whether the defendant’s conduct violated applicable policies and training. A finding by you that the defendant acted in reasonable compliance with applicable policies and training would tend to negate a finding that he acted with criminal negligence. A finding by you that the defendant did not act in reasonable compliance with applicable policies and training would tend to support a finding that he acted with criminal negligence.”
This is key because if he acted in accordance with BART policy and training, criminal negligence is more difficult to prove, thus, reasonable doubt. Prior to this incident, I don’t believe BART had a policy regarding where on one’s person one was required to carry a taser. Much has been said since then about weapon confusion and making sure the taser is a cross draw. That is to say if you are right handed, your duty weapon is worn on your right hip and your taser on your left. It would not surprise me if BART has not enacted that very policy since this incident happened.
If you truly want Justice, you must follow the rules of law. Is BART being civilly sued? Is Mehserle? Oh, most assuredly. The Grant family is going to get paid. In this case, I think they should. Now, I’m not extolling the virtues of Oscar Grant by any means. This whole thing could have been avoided from the outset if he had A) not been in an altercation and B) not resisted. Neither of those actions, however, deserved anything close to the result he received.
At the end of the day, Mehserle made a deadly error. As I read both the law and the jury instructions, I don’t think Mehserle is guilty of a crime. As much as race has been ballyhooed about in this case, it seems to me that both the media, community, and Grant family have assigned that particular label. If Justice is truly blind, race shouldn’t play into this at all.
Where will Justice be when opportunistic vandals destroy downtown Oakland? Where were the riots for the four CHP officers killed this month? Listen people, civilized folks don’t riot. Civilized folks don’t loot. Civilized folks don’t react to a tragedy in order to use it as a crutch to commit a slew of crimes.
It is a sad state of affairs when the hard working, law abiding citizenry and merchants of Oakland are going to be doubly victimized when the verdict is announced. Make no mistake, it doesn’t matter what the verdict is to the kinds of scumbags that will be “protesting”. Look at Los Angeles. The Lakers won the NBA championship and people “celebrated” by vandalizing and looting. There were arrests. People got hurt. It was a fucking sporting event! This issue is so much more volatile it nearly defies definition.
Truth be told, I don’t really believe the majority of people the media has featured in the last year and half. I don’t think they want Justice…at least not true Justice. When the trial first started, people were screaming for first degree murder. These are the uneducated, ignorant (albeit angry) masses. Their knowledge of law is non-existent. They simply want their pound of flesh. That is their perverted sense of “justice”. They want to get back at the cops that have been locking up their baby’s daddies. They want to rail against decades of perceived inequities. They want an excuse to rape and pillage (be it figurative or literal). In short, they want legalized, sanctioned anarchy.
While they are committing a litany of crimes, we, the police, will still be out there enforcing the law. We will not bow to the mob mentality. We will win the day. The sad thing is I agree with those that have called for Justice in this case. I just adhere to a different, more lawful, sense of said Justice. Hold Mehserle responsible for what he did to the fullest extent of the law. It needn’t be solely criminal law, either. He and/or his department should be held civilly responsible for the actions of that night. Unfortunately, tempers are running high in and about the city of Oakland and I don’t think the kinds of people that will be running rampant have any desire to have any kind of intellectual discussion about rules of law.