By TERRY COLLINS Associated Press Writer
Posted: 06/06/2010 09:01:56 AM PDT
Updated: 06/06/2010 09:31:04 AM PDT
OAKLAND, Calif.—After the outcry, the lengthy legal wrangling and a controversial change of venue encompassing 18 months, jury selection in the trial of a white former San Francisco Bay Area transit police officer accused of murdering an unarmed black man is to begin Tuesday in a Los Angeles courtroom.
Johannes Mehserle's on-duty fatal shooting of Oscar Grant was captured on bystanders' cell phones and video cameras, setting off protests that turned violent. The trial could be the most racially polarizing of it's kind in California since four Los Angeles police officers were acquitted of beating Rodney King in 1992.
"I think people in the Bay Area definitely have that impression," said Laurie Levinson, a law professor at Loyola Law School and a former federal prosecutor, about Mehserle's trial.
But, she said, the climate for the trial could be different in Southern California. "People down here in L.A. see it as 'Rodney King Lite,'" she said. "It just hasn't become that highly visible...Not yet anyway."
Defense attorney Michael Rains argues that Mehserle, 28, accidentally pulled out his handgun instead of his Taser when he fatally shot Oscar Grant, 22, in the back on a Bay Area Rapid Transit station platform in Oakland on New Year's Day 2009. Grant was prone, face down, with his hands behind his back.
Mehserle has pleaded not guilty to murder.
Observers say Mehserle's legal team has built momentum heading to trial, even beyond the
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change of venue. A judge recently ruled that a video expert will be allowed to testify and that Grant's past criminal record could be used during trial.
Rains wrote in court filings that Mehserle will not argue that Grant's death was conducted in the heat of passion or in self-defense.
Rains said prosecutors have not shown evidence that the fatal shooting was either voluntary or involuntary manslaughter. He also said they haven't demonstrated that Mehserle's conduct constituted reckless "disregard for human life."
Meanwhile, the prosecution, using a downtown Los Angeles hotel to work through trial strategy, contends that Mehserle did intend to shoot Grant and that he used his weapon because officers were losing control of the situation.
Grant's uncle, Cephus "Bobby" Johnson, said he hopes they can make their case stick.
"Right now, it doesn't even look good with (Mehserle) being charged with at least second-degree murder," Johnson said. "While I continue to believe that justice will be served, it's almost happening right before our eyes that the stage is being set for him to either get manslaughter or no charges at all."
Last year, two Alameda County judges said they believed Mehserle meant to shoot Grant.
But Bay Area defense attorney Michael Cardoza, who attended several pretrial proceedings, believes it will be "impossible" convincing 12 jurors to convict Mehserle of first-degree murder, a premeditated act that carries a maximum 25 years to life sentence.
"I just don't believe anybody in their heart of hearts believes that," Cardoza said. "I will tell you that will not happen...the prosecution should not argue that.
"Jurors may end up saying, 'You really think that? Then I don't trust you.'"
Bill Portanova, a former federal and state prosecutor, said "it almost defies belief" that Mehserle would pull his weapon and deliberately shoot to kill.
"It makes much more sense in the confusion of the moment that the wrong weapon was used," said Portanova, now a criminal defense attorney in Sacramento. "Both are holstered, triggered weapons. It looks like a terribly unfortunate accident."
The shooting, which came after Grant and his friends were allegedly fighting onboard a train, was video recorded by bystanders (some who will testify at trial) and shown across the Internet, which sparked protests and outrage.
Several of the videos were used as evidence during an intense preliminary hearing last spring and will again have prominence at trial.
Levinson said while the video of King's beating in 1991 was disturbing, that case didn't boil over until the officers were acquitted the following year, sparking the deadly Los Angeles riots.
"That case didn't become as important until there was a verdict," Levinson said. "(Mehserle's) case may be similar."
Said Portanova, "While we've seen the videos, we think we know what happened, the truth—which is infinitely messier than the image—can only be examined through sworn testimony and aggressive cross examination."
John Burris, Grant's family attorney, has said the video will be the trial's most important witness—even more so than Mehserle, who is expected to testify.
"The fundamental aspect of this case is that Oscar Grant was shot. He was shot dead by an officer who pulled a gun out and shot and killed him," said Burris during an emotional news conference in February. "The videos of the shooting will speak to that."
Last week, a judge placed Burris under a long-standing gag order for the prosecution and defense.
Johnson, Grant's uncle, agrees about the importance of the video.
"Our prayers are that the videos stand on their own," Johnson said. "Then we look back at the Rodney King case and saw he was getting beaten pretty badly with the batons. Those cops still got off.
"We hope the jurors can see things for themselves, not what some video expert tells them."
Karen Ginn—a noted Bay Area jury consultant who worked with Rains on jury selection in the infamous 2005 Oakland police corruption "Riders" retrial—wonders how many times jurors will see videos of Mehserle shooting Grant.
"That is what catapulted this case," Ginn said. "Yes, in the Rodney King case, there was videotaped footage, but that was old school and rare, but so many recorded (Grant's killing), that's what got people talking."
Other questions loom as the trial nears. How will jurors respond to the testimony of former BART officer Tony Pirone, who has been described by witnesses as being the most aggressive officer on the platform prior to the fatal shooting?
And how will jurors react to likely powerful testimony from Grant's friends who were also on the platform when Grant was killed?
The trial was moved from Alameda County 400 miles south to Los Angeles because of excessive media coverage and racial tensions. Protesters from Oakland and Southern California are expected to be outside the courthouse.
"I know that no matter if Mehserle is found guilty, it's still not going to bring Oscar back," Grant's mother, Wanda Johnson, said after last year's preliminary hearing. "Even if Mehserle goes to jail, his family is going to be hurt just like my family. They will have a loss, just like I will have a loss.
"But their loss they will be able to go visit. My loss, I have to go to the grave site and look at my son's headstone."
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