Killer Cop Preliminary Hearing Update from Week One

Justice for Oscar Grant III:
The People vs. Johannes Mehserle Preliminary Hearing
Notes from Day 1 Inside the Courtroom

Today at 8:30 AM the trial of former BART police officer Johannes Mehserle for the murder of Oscar Grant III on January 1st of this year began with preliminary hearings. The people of Alameda County and the Grant family were represented in court as the prosecution was led by Assistant District Attorney David Stein. On the other side of the courtroom were Mehserle and his defense team led by Michael Rains, an attorney frequently used by police officers standing trial in the Bay Area. Family members of Oscar Grant and his supporters were allowed only twenty-seven seats in the courtroom and press who had drawn names in a lottery in order to attend occupied several of those seats. There was no closed-circuit viewing room available for those waiting in the hallways that were turned away due to the lack of space. Many folks had lined up as early as 6:30 AM in order to get a spot in the courtroom. Those in attendance to support Oscar and his family wore shirts emblazoned with his picture and the words “Gone but not forgotten” on the back. Upon entering the courtroom we were told we could not leave at any time and we had to be silent.

Michael Rains presented his first motion to Judge C. Don Clay asking that the district attorney be removed from the case for allegedly violating Mehserle’s 6th amendment rights by having officers question him after his arrest in Nevada on January 12th. Rains was able to recite some of the information in the brief even though he was told only to present new information. Rains also at one point referenced the public pressure around the case and asked the judge to “not succumb to the mobs outside.” Judge Clay tried to keep Rains in line by stating that his courtroom would be a “forum of law” and the motion was quickly dismissed. The prosecution was then allowed to begin calling witnesses to present their case for why Mehserle should be charged with murder.

The prosecution called four witnesses: two eyewitnesses from the BART platform who had taken video footage of the murder and the events surrounding it and also the forensic pathologist who examined Oscar’s body and the video expert from the county DA’s office. The first eyewitness to take the stand was Karina Vargas who was on the BART train on January 1st and took video of what happened that night. She started off by recounting that BART Officer Tony Pirone forced his way onto the train car in front of her and yelled “You get the f**k off the car” to several young men who were doing nothing that warranted them being removed from the train. Her testimony went on to emphasize that the young men who were with Oscar that night as well as Oscar himself were completely cooperative with the officers and that the reason she had begun filming was that it appeared that the officers were being violent towards the young men for no reason. Karina Vargas’ footage did not show the actual murder but the loud gunshot was caught on tape and she also captured the stunned reactions of the crowd of witnesses who were clearly horrified by what had happened. On the defense’s cross-examination Rains tried to get Vargas to say Mehserle was not acting aggressively prior to when Oscar was pinned to the ground and that he seemed “dumbstruck” after the shooting. Clearly the defense will try to make out Mehserle’s actions as somehow accidental and that Officer Pirone was the real instigator of the violence that night. The video footage demonstrates completely that Oscar Grant III was totally non-violent and cooperative through the entire incident and that he was murdered for no reason. This begs the question, though, of why has Tony Pirone not been charged in this crime since the video evidence shows he was in the middle of the whole thing and at one point even has his knee on Oscar’s neck.

The second prosecution witness was the forensic pathologist, Dr. Thomas Rogers, who established that after examining Oscar’s body he died of a gunshot wound to the torso. He pointed out the angles at which the bullet entered and traveled through Oscar’s body and the defense on cross-examination tried to get him to testify about where the gun was held and the position of Oscar’s body using the angles he had outlined. Dr. Rogers said he was unable to determine that and basically exposed the defense strategy for what it was: a desperate measure to try to implicate Oscar and say he was leaning back and trying to rise up at the time he was shot. The defense also pushed on the issue of blunt force trauma and whether or not there was visible evidence that Oscar was hit before he was shot. Dr. Rogers said he found no visible evidence of trauma but that did not mean that it did not happen. Rains also tried to insinuate that the only thing that would have saved Oscar would have been to get him into a trauma emergency room immediately after being shot so therefore the lack of lifesaving measures done by the officers after the shooting was somehow justified. The problem with this analysis is it assumes that Mehserle and Pirone and the other officers were as knowledgeable as doctors and knew exactly what kind of trauma Oscar was experiencing which is obviously false. This was just another straw the defense tried to grasp at to attempt to overcome the overwhelming video evidence that shows the guilt of their client and the other officers on the platform that night.

Vicky Long was called to testify third and she has been a video technician for the Alameda County DA’s office dealing with video evidence in cases for over 28 years. She validated the way the video evidence was preserved and viewed, and authenticated it as not having been tampered with or altered in any way by her office. She also showed the court how she was able to view footage frame by frame to allow for close examination of what was happening in the form of still images.

Long set the stage for the final prosecution witness of the day, Margerita Carazo, another eyewitness from the BART train who also took video footage of the incident. Carazo was extremely well spoken and gave her testimony in such a way it was clear she was relaying factual information. She also stated that she began filming when she realized that the police were behaving in an inappropriate way and she wanted to get it documented. At one point in the video she can be heard saying “I’m getting this on video motherf**kers” to the police who were trying to confiscate her camera and intimidate the other passengers as part of their initial cover-up after the shooting. Carazo and Vargas were both very clear that they had voluntarily given up their video evidence after learning Oscar had died and were not initially contacted by John L. Burris, the Grant’s attorney in their civil suit, and did so on behalf of justice and not for any material reward. Both Carazo and her testimony showed that Oscar had been doing nothing to warrant getting dragged off the train, slammed into the concrete wall of the station and then forced onto his stomach with his hands behind his back which was the position he was in when he was shot. The background noise on her video captures the outrage and disbelief of the train passengers as they witness the harassment of the young men by the police and then the unjustified murder of Oscar Grant III before being pushed back onto the train and having the doors closed in their faces. Carazo can be heard at the end of her tape asking someone to hold the door open so she could continue filming as the train pulls away from the Fruitvale station moments later.

Overall the prosecution took the day in court on the sheer magnitude of their video evidence and eyewitness testimony. The defense, though, under the devious leadership of Rains has already to begun to insinuate that Mehserle was not the real aggressor on the platform, even though he is the one who murdered Oscar, and that perhaps Oscar was trying to resist and that is why he was shot. Both of these insinuations are utterly false and cannot be proven by any of the hard, video evidence of the crime but we cannot be naïve and must understand that this looks to be a long and painful trial with a rabid defense team that will try anything they can to cover up the truth and get the charges reduced to manslaughter. It is critical that we continue to be a public presence both in the courtroom and outside and that we realize it will only be through the vigilance of the people in the community and the family members that we will be able to get justice in this case. The evidence is on our side: it is time for us to make history and convict an on-duty officer of murder in the first degree.

Submitted by: Dana Blanchard

Justice for Oscar Grant III:
The People vs. Johannes Mehserle Preliminary Hearing
Notes from Day 2 Inside the Courtroom

The second day of the preliminary hearings in the trial of Johannes Mehserle continued today, May 19th with the prosecution, led by David Stein, calling three more witnesses to the murder of Oscar Grant III on January 1, 2009. The defense team, led by Michael Rains, again tried to disprove what the video evidence showed happened that night. He also tried repeatedly to get witnesses to give contradictory statements but had no success. The witnesses, in the same manner as the previous day, were clear, level-headed and articulate about what they saw and each of their stories was supported by the others’ testimony and the video evidence that was shown in court. The prosecution rested today and the defense will be presenting tomorrow.

The first witness, Tommy Cross, an African American college student who was on the train that night with a couple of friends took what has been described as the clearest video footage of the murder. After disembarking at Bay Fair station Cross was viewing the video with his friends and trying to figure out what exactly had happened when their group was approached by a BART police officer. The officer saw a group of young men of color around a video camera and invited himself into their group. When he looked over their shoulders and saw that they had footage of what had happened at Fruitvale he immediately asked them to come to their office. The Lieutenant had been radioed from Fruitvale about what had happened and were on the look out for anyone who had taken video at the station. Cross was invited back to the BART police office where his camera was confiscated and the memory chip removed. When asked why he gave up his camera and memory card Cross replied that he was “fearful” and was worried that he did not want the same thing to happen to him that had happened to Oscar. The BART police only handed over the video footage to the DA’s office after it was subpoenaed in April. The video and witness testimony showed Mehserle pulling his weapon, stepping back, grasping it with both hands and firing it at a completely cooperative Oscar Grant on the ground. Cross also reiterated the same details that had come up in previous testimony that Officer Pirone and Officer Dominic were acting very aggressively and used unnecessary force repeatedly. The most incredible part of Cross’ testimony was when he teared up describing the trauma he experienced when visiting Fruitvale BART in subsequent weeks. He explained he was unable to go to the Fruitvale platform for weeks after the murder and would hyperventilate and had to close his eyes when passing through the station on his way home from San Francisco to San Leandro.

The second prosecution witness, Lui Tong, also included video footage he had captured to the courtroom. When asked why he started videotaping he explained that he always carried his camera with him and when things began unfolding on the BART platform he knew what was happening was “unusual and interesting” so he began filming. This is consistent with what the witnesses said yesterday about why they were able to capture the murder on tape. Tong came across very articulate and precise in his answers even when questioned by Rains who tried to get him to contradict his story.

The third prosecution witness was a sixteen year old who was one of the many friends who was with Oscar Grant III the night he was murdered. Though he was young and had never appeared as a witness before he was clear and did not appear intimidated by Rains and his personal questions. He was straight-forward in his testimony and decisive in his thoughts and what he knew and had seen. It was clear he was telling the truth. The witness also took video footage of what happened. Because he was a close friend of Oscar’s who was traveling with him that evening he was particularly harassed by Rains on cross-examination. He was able to add more details about what led up to the police pulling everyone off the train. The youth were pulled off unfairly and though the defense tried to get him to admit that there was a fight on BART prior to them being removed from the train he admitted only that there was a small struggle but it did not warrant any police action and was not occurring at the time the train had pulled into Fruitvale. Rains also asked about the audio on the video that had the young man using the N word. Rains asked pointedly why he was using racial slurs and he answered that he was using a common slang term used by his friends and this is supported by the fact that there were no Black officers on the platform that night. Rains also tried to cast doubt on Oscar and the witness’ character by asking about gang colors and what his clothing represented that night. The witness handled this line of questioning well and clearly showed in the video the variety of clothing worn by the youth on the platform and that none of them were gang-affiliated. Rains additionally tried to assassinate Oscar’s reputation by asking the witness if he had seen Oscar drinking that night. The witness calmly replied that he “was not Oscar’s shadow” and did not follow him around the entire night but was sure he did not have more than one beer. Rains also asked the witness if he was being represented by John Burris and why during his interview he was with Jack Bryson, the father of two of the young men on the platform that night. He calmly answered that Bryson was his uncle and is “supposed to stick with me.” Again the truth prevailed and the video and candor of the witness testimony proved that there was no reason that Oscar was shot and no reason the youth were pulled off the train in the first place.

The prosecution rested today and presented enough evidence that the charge of murder should stand as the trial proceeds. The defense will begin their smear campaign tomorrow and try to break down the mountain of evidence provided by the prosecution. There will be no trial Thursday or Friday of this week and defense arguments will resume on Tuesday after the Memorial Day holiday.

Submitted by: Dana Blanchard

Justice for Oscar Grant III:
The People vs. Johannes Mehserle Preliminary Hearing
Notes from Day 3 Inside the Courtroom

The preliminary hearing continued today with the defense attorney Michael Rains presenting his first witness to try to prove that Johannes Mehserle should not be charged with murder in the killing of Oscar Grant III. Rains started out saying that this wasn’t a murder and that it wasn’t intentional before he called his first witness. In theory the purpose of a preliminary hearing is to establish that a crime was committed not how it actually happened. The first witness for the defense was a man named Dennis Zoroto. Zoroto testified that he had seen a scuffle on Bart and that it was a large group of young Black males and someone else, then he later stated it was a fight and that it was between a black male and a white male. He said that he got on a Richmond train and then transferred to a Dublin train and that he sat on the first car. The fact he was on the first car is very crucial because all of the witnesses from Day 1 and 2 who had taken video were actually on the third or fourth car of the train. It became clear Zoroto couldn’t provide the best account of what happened since he said that he couldn’t see because of the train being too crowded. Zoroto was also the one who alerted the BART authorities that there was some sort of problem on the train. Rains then tried to establish that Oscar was the one who was fighting on BART. Assistant District Attorney David Stein said that none of the defense witnesses had anything to do with this case and didn’t want to try the case, he just wanted to make it clear that a crime was committed, and that the crime was murder. However, Judge C. Don Clay wanted to hear if the testimony was relevant. It also became clear on Stein’s cross-examination that when BART investigators spoke to Zoroto and his wife on the phone two days after the murder that she gave a very different statement which cast a doubt on Zoroto’s credibility as a witness.

The second defense witness was David Horowich. He was the person who was alleged to have had a fight with Oscar on the train that night. Horowich was on BART with his two sons and Horowich knew Oscar from county jail and he and Oscar were good friends. Rains asked if he had seen Oscar at the Fireworks show and he said that he had. When asked what Oscar did when he saw him Horowich stated Oscar gave him two fingers and when Rains asked what did those two fingers mean he answered the two fingers were the peace sign. The courtroom then burst out laughing because Rains had been trying to make it out to be a gang sign of some kind.

The third defense witness was a woman name Alika Rogers. She wasn’t any more effective than the first two witnesses. She testified that she boarded the train at Civic Center and that nothing happened on the train she was on. Rains purpose for calling her was to establish that the train got chaotic at one point but then settled down. She was seated by a door on the second train and attributed some of the supposed “chaos” to it being New Year’s Eve. Her testimony was that she noticed the BART police acting aggressively at Fruitvale and that everyone was hysterical when the BART police kneed Oscar in the face. She said that Officer Pirone was the one acting aggressively and that she had told all this to the BART investigators who she spoke to the next day. She also testified that Mehserle was the one who she had seen shoot Oscar in the back and that she witnessed Officer Pirone hit someone in the face and that he pulled people off in a very aggressive manner. She also happens to be a paramedic and she was the one who called BART about what she had witnessed. She said that after seeing officer Mehserle shoot Oscar and before the train pulled off nobody responded to Oscar in a medically correct manner.

As is standard practice in a case against the police the defense called as a witness another BART police officer, John Woffinden. Woffinden began his testimony by talking about what a “busy, chaotic” night it was on New Year’s Eve, as if to make some excuses for the officers behavior on the platform that night. He spoke about an incident at the West Oakland BART station and was quickly silenced by Judge C. Don Clay when he tried to elaborate more on this completely unrelated event. The defense clearly wanted to make links between what allegedly happened at West Oakland and the reason why the officers took the young men off the train in Fruitvale. When he got a call to go to Fruitvale, Woffinden said his “adrenaline was pumping” and that he heard yelling and commotion over the radio.

The scene that Woffinden paints at the Fruitvale BART station is very different than the one that everyone saw on video in the previous days of the trial. Woffinden said he saw Officers Pirone, Dominici and Mehserle with some young men on the ground and against the wall. This part is accurate and true to the video footage. What he left out was that Pirone was physically assaulting one of the young men and that there were not “two groups” of citizens on the platform but rather two groups: one of citizens and one made up of cops. The people the train who were not the people being directly harassed were screaming and yelling at the officers. Woffinden testified that the crowd on the trains and the young men were yelling loud expletives and he tried to get them to obey but “to no avail” so he got out his baton and began advancing on them. Two additional officers then arrived and a couple of minutes after that Mehserle had shot Oscar Grant. The footage on the video clearly shows that the young men were not resisting arrest and were in fact cooperating with everything they were being told to do. Woffiden’s version of events simply does not fit with the video. Woffinden had his back to Mehserle when Oscar was shot and he testified to still “dealing with the crowd” when he heard the gunshot. He said people threw paper and a cell phone at him from part of the group. When he says “the group” one can only assume he is referring to the group of people on the train because all of the young men against the wall had their hands in plain sight.

Woofinden then finished his defense testimony by stating that after Oscar was shot he was “very, very” afraid for his own safety, the officers were extremely outnumbered and he had called for backup. At no point did he discuss why no one called for an ambulance and he tried to make it seem like the situation was completely out of control when the only out of control people were the officers who were armed to the teeth and had just killed an innocent young man.

The Assistant District Attorney, David Stein, was then allowed to cross-examine Woffinden. He asked about the noise that Woffinden heard and Woffinden said it sounded loud, like a taser and that afterwards Mehserle looked flushed and sweaty but did not say anything. Stein then asked about the report that was written about the incident and Woffiden said he wrote it later that morning but could not recall if he had spoken to any of the other officers who had been there that night before writing the report. It was also noted that Woffinden had his own attorney present in court but he declined to state why he felt he needed one in the first place. Stein then pressed on the issue of the scene when Woffinden arrived at Fruitvale. He asked Woffinden why his adrenaline was pumped and he admitted it was due to earlier radio calls involving potential situations with guns and not with what was actually happening at Fruitvale. Stein clarified that the “crowd” Woffinden mention in his first testimony was actually a group of four or five people but Woffinden insisted that they had “clenched fists” and were advancing on him though none of this is evident in any of the videos. The worst violence against him was eventually exposed as people throwing cell phones and shouting rude things. Woffinden then pretended that when he heard the gunshot he did not realize who had been shot or if it had even been a shot or a taser sound despite the fact that blood was coming out of Oscar’s mouth. He then said that he saw many people filming and then he took out his baton and raised it like bat telling someone he would hit them if they did not get back. He went on to talk about how this incident was the scariest incident he had ever been involved in, yet at no point in the evening had he pressed his emergency button. He even went so far as to say that he could have used twenty to thirty more officers on the scene to control the crowd.

After Woffinden finished his testimony it was clear that his version of events in no way matches the video evidence presented in court. Even his own behavior in the situation does not fit the assessment that this was a highly volatile scene. The defense is trying to make it seem like the use of force that night was somehow justified and that the cops were terrified and feared for their safety. This is disputed by the videos which show all the violence and frightening behavior coming from the cops and absolutely nothing being done to deescalate the situation, instead an “adrenaline pumped” group of officers openly terrorizing and murdering innocent young men on the platform. The very fact that Woffinden had his own lawyer in the courtroom is proof that he knows, and everyone else knows, there is no way to justify the actions of the BART police that night.

Though the defense tried to demonstrate something other than murder they were completely derailed and the main reason for this is that the murder was caught on video by at least five people and these videos, no matter the angle, point to cold blooded murder.

Submitted by: Dana Blanchard