Thursday, July 1, 2010

Murder, Manslaughter, or Not Guilty?

By Robert Gammon
Thu, Jul 1, 2010 at 12:40 PM

Although we haven’t attended the Johannes Mehserle trial in person, we’ve been closely following the coverage of it. And we thought it would be helpful to compare the four possible verdicts (five, if you include a hung jury) against the reported evidence so far:

1. Second-degree murder. To reach this verdict, the jury would have to conclude that Mehserle, after attempting to subdue Oscar Grant, stood up, purposely pulled out his gun, and shot the unarmed Grant in the back as he lay face down on the ground.

To reach this verdict, the jury would have to disregard Mehserle’s statements to fellow BART cops after the shooting that he thought Grant was reaching for a gun. But this verdict is bolstered by the fact that cops are trained to not stand up and let go of a suspect who they think is arming himself. The reason is that the suspect might roll over and shoot the cop.

But to reach this verdict, the jury would have to disregard Mehserle’s testimony in the trial that he meant to use his Taser on Grant, but mistakenly pulled out his gun instead.

2. Voluntary manslaughter. To reach this verdict, jurors would have to conclude that Mehserle killed Grant in the “heat of passion” or because he unreasonably thought that Grant posed a threat to his life. That is, the jury would have to accept the testimony from several BART cops that Mehserle said after the shooting that he thought Grant was reaching for a gun, when, in fact, Grant had no gun.

In other words, Mehserle thought Grant posed a threat, when he actually didn’t. The jury also would have to conclude that Mehserle’s belief was unreasonable. This conclusion is substantiated by video of the shooting, showing then-BART cop Anthony Pirone with his knee on Grant’s back, holding Grant’s arm — the one that Mehserle said he thought was going for a gun. In short, Mehserle could not have reasonably thought that Grant was reaching for a gun when he couldn’t have physically done so.

This verdict also is bolstered by the fact that the BART cops who testified that Mehserle said he thought Grant was going for a gun were called to the stand by the prosecution. But to reach this verdict, jurors would have to disregard Mehserle’s later contention at trial that he meant to use his Taser.

3. Involuntary manslaughter. To reach this verdict, jurors would have to conclude that Mehserle meant to reach for his Taser, but instead grabbed his gun and then recklessly killed Grant. This verdict is bolstered by Mehserle’s own testimony.

But it requires that jurors disregard his repeated statements after the shooting that he thought Grant was reaching for a gun. The reason is that police officers are trained to use a gun — not a Taser — on a suspect armed with a deadly weapon. Officers are trained to use lethal force when faced with lethal force.

However, this verdict, often viewed as a compromise decision in homicide cases, may be preferable for jurors who believe Mehserle killed Grant by accident but don’t want to vote not guilty, or for those who believe that Mehserle meant to kill Grant but are reluctant to convict a cop of a more serious crime.

4. Not Guilty. This verdict requires jurors to conclude that Mehserle meant to pull out his Taser but accidentally grabbed his gun instead and that such an accident was reasonable under the circumstances. This conclusion is bolstered by testimony that BART gave officers only cursory Taser training. But it requires that jurors disregard testimony by fellow BART officers that Mehserle thought Grant was going for a gun.

5. Mistrial. This occurs when jurors can’t agree on any of the above verdicts and are said to be "hung." This result is not uncommon in police-officer-involved shootings, where there is evidence that a crime occurred but some jurors just don’t want send a cop to prison. This verdict also likely would take some time to reach, because judges routinely tell juries to keep deliberating until they come to a unanimous conclusion, as required under the law.

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