The show trial of the former officer in the BART shooting case begins

I know that using the term “show trial” is inflammatory and conjures up images of Stalin-era style of jurisprudence. But show trial refers to a highly public trial, which certainly applies to the prosecution of Johannes Mehserle. He is the 27-year-old former BART police officer and recent Lafayette resident accused of murdering Oscar Grant, an unarmed, 22-year-old African-American man early New Year’s morning isturbance at Oakland’s Fruitvale BART station.

Show trial also has the strong connotation that the judicial authorities have already determined the guilt of the defendant and that the goal of the trial is merely to make an example, political or otherwise.

I gotta say it, but I think show trial is the correct term to apply to how Oakland’s legal and political establishment is handling this case. That is evident from reading news accounts of last Friday’s bail hearing for Mehserle—at which a judge set bail at $3 million—and then reading the defense attorney’s thorough and persuasive argument that Grant was the victim of a tragic accident—not murder—and that Mehserle meant to stun Grant with his Taser gun, not fire his pistol into his back.

Mehserle’s attorney, Michael Rains of Pleasant Hill, says that at most Mehserle should be facing manslaughter charges, not murder charges. From what I've read and seen so far, including the various grainy videos shot by witnesses, it sounds right to me.

In saying that I think Mehserle's attorney makes a strong argument, I realize that I come off as going against my usual lefty, liberal grain. On the other hand, I have strong views on the need for criminal trials to uphold principles of fairness and justice. Like a fellow Walnut Creek blogger, The DUBC, I strongly question whether Mehserle can get a fair, just trial in Alameda County.

This is a politically messy situation, one in which I open myself up to charges of racism and classicism in calling Mehserle's prosecution a show trial. I’m white and middle class, just like Mehserle, so naturally I will identify with him, or so that argument goes. I’m sure there is some truth to that. I have said before I have sympathy for Mehserle.

At the same time, I’ve made it clear that I don't have a starry-eyed view of police. I have covered crime as a daily news, web, and magazine writer in several jurisdictions for much of my journalism career. Most of the cops I’ve met are regular men and women, just trying to do their job the best that they can. They are decent people who want to help others and ensure public safety. Nonetheless, I’ve come across a few of those “bad apples” who spoil the reputations of their departments and contribute to rifts between themselves and residents in the communities they serve, notably in tough, urban towns like Oakland and Richmond. These are the cops who use excessive force, who conveniently misrepresent or deliberately lie about evidence to secure search warrants, who lie on the stand, and who speak disparagingly about, for example, grieving parents of young homicide victims.

I just don’t see one of those bad apples in Johannes Mehserle--not yet anyway. No information has yet emerged, even from what the judge or prosecutor said at Friday’s bail hearing, to convince me otherwise. In fact, I found the statements of Judge Morris Jacobson to be a little concerning. He convinced me even more that Mehserle’s trial is not going to be about justice—that is, getting to the truth of what happened on that BART platform—but about Alameda County’s legal establishment trying to prove their political correctness.

White cop; dead black detainee. In the “politically correct” view, Mehserle is probably a racist who exploded in some kind of sudden rage during that New Year’s morning confrontation on the BART platform, directing it at the young black man who, some witnesses say, according to the defense motion, was not being as cooperative with police as was earlier portrayed.

Jacobson attacked Rains’ account of the shooting as “inconsistent” and accused Mehserle of being willing to “make up something that's not true" to escape consequences for shooting Grant.

It sounds to me like Jacobson is one of those judicial authorities in the classic definition of show trial who has already determined the guilt of the defendant.

Here’s the Chronicle’s summary of Rains' motion and the bail hearing. You can also read the motion yourself here:

Mehserle and other BART officers detained Grant and four of his friends just after 2 a.m. while investigating reports of a fight aboard a Dublin-Pleasanton train. Two people on the train told police that about 20 people had been involved in what amounted to a "barroom fight" and that the participants were "hammered and stoned.”

Rains said Mehserle had been in a tough situation, trying to handcuff Grant after being told Grant was under arrest for resisting an officer. Rains quoted Officer Tony Pirone as saying Grant had disobeyed instructions and cursed officers. [Pirrone, by the way, is the officer who has subsequently been accused by John Burris, the Grant’s family attorney, of using excessive force by punching Grant.]

Grant, after learning he was to be arrested, ‘attempted to stand up, but was forced to the ground face-first.’ Mehserle and Pirone ordered Grant to put his hands behind his back to be handcuffed, but Grant resisted.

According to the motion, “Pirone said he heard Mehserle say, 'Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back.'

“Then Mehserle said, 'I'm going to tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband,' " Rains wrote. "Then Mehserle popped up and said, 'Tony, Tony, get away, back up, back up.' "

Rains wrote that several witnesses described Mehserle as looking stunned after he shot Grant. One said Mehserle "had an expression on his face like, 'Holy s-, what happened, or what did I do, with his hands around his head,' " the attorney wrote.

According to the Chronicle, the prosecutor in the case, John Creighton, also questioned Rains’ portrait of the shooting as an accident.

"If he intended to pull his Taser and pulled his service weapon by mistake, why would he say to another officer after the fact, 'I thought he was going for a gun'?" Creighton said in an interview before the court hearing. "Why wouldn't he say, 'Oh, my God, Tony, I meant to pull my Taser' or something to that effect?"

So, what if Mehserle didn’t say “I meant to pull my Taser”? Just prior to pulling out his weapon, Mehserle was heard by several witnesses as saying he intended to tase him.
Isn’t it also possible that Mehserle intended to stun Grant to prevent him from going for a gun? Maybe Mehserle, even faced with the fear the Grant had a gun, still tried to avoid using lethal force—by going for what he believed was his Taser gun, not his pistol.

I remember talking to a police lieutenant and SWAT team commander about use of force, and he said you generally approach most confrontational situations in as calm and low-key way as possible, then step up the force incrementally as the situation demands. Unlike TV or movies, you don’t go into most situations with your gun drawn, unless you’re facing one of those rare instances when that action is required. You don’t immediately go to DEFCON 1.

And maybe that’s what Mehserle was trying to avoid: a cop’s version of DEFCON1.

Fellow East Bay blogger Mayor of Concord has some good photos showing the similarity between a Taser gun and the semiautomatic pistol Mehserle used to shoot Grant. At the same time, the Mayor of Concord notes that the two weapons weigh a lot different and would be carried on different sides of the officer’s belt. “The differences are what is going to be called into question.”

It will be interesting to see what additional facts come out at the trial. I’ve already seen enough to make me think the Oakland establishment so far is reverting to its usual mode of appeasing politically correct thuggery—those who allude to more riots and violence erupting if the white cop who murdered the African-American detainee isn’t convicted of murder.

This is the same kind of thinking that led the current mayor, Ron Dellums, Congresswoman Barbara Lee, and others in Oakland establishment to coddle a criminal enterprise, otherwise known as Your Black Muslim Bakery, that terrorized the city for years, under the guise of “empowering” poor African-American residents. That reign of terror ended when the Bakery's employees finally crossed a line and (allegedly, yeah right) assassinated an African-American journalist who had the guts to try and do what Oakland’s authorities long failed to do: expose the danger and hypocrisy in bowing to certain violent-laced forms of political correctness.