Mehserle's Trial to Be Held Outside of Alameda; Judge Buys Rains' Lies; City Leaders Complicit, 10/16/09: PDF

Nevermind that one of the primary reasons the judge cited for granting the motion was demonstrations being held outside of the courthouse, because community activists and Oscar Grant's family have already vowed to travel to any county that should hold the trial. In a similar vein, Jacobson refers to over 100 people being arrested in January, but he ignores the fact that charges were dropped against all but three of those cases because there was no evidence against those arrested. Most importantly, Jacobson ignores the fact that the largest protests were held during first two weeks when Mehserle had not even been interviewed about the murder nor charged with any crime.

Nevermind that another reason cited by the judge was the press coverage the case has received, because wherever the trial moves in California certainly has already had plenty of news coverage about the case and undoubtedly now will have lots more, including the publicly-released video footage of Johannes Mehserle shooting Oscar Grant III in the back then dragging him around on the Fruitvale BART platform. Judge Jacobson admits that the vast majority of news stories on the case were not prejudicial.

Nevermind that Jacobson takes the time to note that there were factual inaccuracies in some news reports yet he himself repeats one of Michael Rains' many dishonest claims from Mehserle's change of venue motion, that is that a police car was set on fire during prior protests. A police car was jumped on and one of its windows was broken, but it was not set on fire. A nearby dumpster was lit on fire and pushed into the police car, but the car itself never caught fire. Two other cars later that night were set on fire, but never a police car. While this may seem like an insignificant detail, it's ironic that Jacobson twice declares "Police cars were set afire" in his 18 pages of "FINDINGS OF FACT". Self-serving factual actual inaccuracies ran throughout Mehserle's written change of venue motion and Rains was called out for simply making things up in the venue hearing.

Despite being called out several times for obvious bias in "expert" witness testimony, inaccurate claims, and deliberately provocative stunts, Judge Jacobson, still saw fit to grant Mehserle his change of venue. For instance, Jacobson details the following incident in his order for a change of venue:

12. In other areas substantial defense bias by the experts has been established. 
This bias appeared in several areas of significance, and thus rises to the level of 
being the subject of a factual finding.

First, in direct examination, Dr. New, in response to a question that did 
not signal in any way the type of answer that was coming, apparently took 
a rehearsed cue from defense counsel Rains and rapidly spouted off several highly 
offensive racist comments attributed to survey respondents.2  There was no 
warning that such vitriol was about to come forth. 

At the point in the hearing when this premeditated vituperative display was 
conducted, there was not an empty seat in the courtroom....

When Dr. New suddenly spewed these inflammatory remarks, members of 
the audience audibly gasped. The court intervened and stopped the gratuitous 
display of racial hostility. Although Rains half heartedly sought to justify this 
lowbrow and unnecessary tactic, it was obvious that he was attempting to cause a 
disturbance in the courtroom, presumably to show the need to change venue. It 
was also clear that Dr. New was quite willing to assist. This testimony 
demonstrated the expert’s lack of independence from defense counsel. [pg 7]

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2 Dr. New offered the following quotes: “One less black person in this city is fine with
me.” “I have to walk through a damn bunch of black people asking me for things.” “We
ought to shoot these people”. “Black people seem to have extra rights.”

Of course, these supposed quotes from survey respondents were used to provoke anger in the community rather than to show that there are numerous people in Alameda County not inclined to convict Mehserle under any circumstances. And yet somehow, according to Mehserle's change of venue motion, it's African Americans who cannot be impartial jurists. [Note that African Americans make up only 13% of Alameda County residents, yet the survey focused inordinately on African Americans, claiming they were too biased to fairly judge the case. The overall sample of the survey itself was exceedingly small with just 397 telephone respondents total, only 37 of whom were African American. The survey virtually ignored the many races of people who live in Alameda who are not of European or African descent.]

Furthering Rains' war on the freedom of speech of community activists, Judge Jacobson points to Exhibit 13 in the defense's change of venue motion and notes that

some of these groups appear to be 
committed to maintaining a visible and vocal presence at all court proceedings in 
Alameda County to “insure justice for Oscar Grant” [pg 15]

as if free speech were a crime. It must be asked if Judge Jacobson looks down on other families and supporters of murder victims who demand justice for their lost loved ones. Disingenuously, the judge claims that

protestors have gathered in the lobby area 
outside of the courtroom where proceedings are being heard [pg 15]

when he knows full well that no protests have been held directly outside of court rooms. No one has chanted or held signs in the lobbies. People who could not get in due to the small size of many of the court rooms simply waited inside the building for the hearings to conclude. One has to wonder how the judge determined those waiting outside to be "protesters". Did he make such a determination by their appearance? While not letting it get in his way of ordering a venue change, Judge Jacobson calls out the threatened racist approach to jurors that Rains' declared he intends to take should he not get his dream all-white jury for Mehserle.

25. Defendant has made clear in his moving papers that he is contemplating 
disparate treatment in voir dire and systemic exclusion of potential African 
American jurors in this case. (Defense opening brief at pp.67-69.) Defendant’s 
use of his experts to justify this strategy not only shows their bias, but is plainly 
disturbing. Systematic exclusion of any cognizable group of jurors, because of a 
party’s prejudgment that there exists a group bias, is wrong.

Nothing in defendant’s evidence or arguments in this motion justifies 
violating the State or United States Constitutions in regard to jury selection. 
Both the defense and prosecution are entitled to a fair trial, which includes a 
fairly selected jury. [pg 19]

If that jury is selected from a predominantly white county, certainly the prosecution and the people of Alameda will be denied their right to a fair trial -- in favor of the first police officer ever to be charged with an on-duty shooting in the state of California. The hundreds of other incidents of people killed by police over the last ten years in California are considered to have been justifiable shootings, despite tens of millions paid out by various cities in settlements for the killings or the alarmingly large number of victims, like Oscar Grant III, that were unarmed.

Michael Rains and his "experts" Edward J. Bronson and Craig New argued on behalf of Johannes Mehserle that if this trial was not moved then no trial would ever qualify for a change of venue. They also argued that Mehserle's status as a police officer, and as an "outsider" who does not live in Alameda County, required a change of venue. But if Meherle cannot be fairly tried in Alameda because he is a police officer who lives outside of the county, then virtually no police officer in Alameda could ever be tried locally for crimes committed here as most police who work here live outside of the county. And so as a boost to Mehserle's chances of beating the murder charge, Judge Jacobson writes in his order on page 24 that "Defendant’s status as a police officer is a factor that weighs heavily in favor of a venue change," thereby risking sending the trial to a county where Mehserle's status as a police officer will grant him and his defense an unfair advantage with potential jurors who more blindly favor police and are less likely to impartially examine the facts regarding police crimes.

The venue change is Mehserle's best shot at avoiding accountability for his actions, by potentially relocating the trial to a less diverse county where his defense could more reliably count on a jury acting on biases sympathetic to police abuses and prejudiced against young African American men rather than the evidence of the case. As the decision is made as to what county will host the trial, it is hoped that a county with demographics similar to that of Alameda will be found.

As for City of Oakland complicity in at least the timing of the venue change announcement, the SF Chronicle reported that Councilman Larry Reid told them Oakland officials recommended to city employees that they leave work early today. It is doubtful that a decision as momentous as this was not made without consulting beforehand with Mayor Dellums, City Council members, and others in high office. In all likelihood, police forces were tipped off so that they could staff up tonight. (A possible police helicopter was noted buzzing over downtown within hours of the public announcement.) Alameda County Sheriff Gregory J. Ahern, in charge of court house security, admitted previously in a meeting with community activists that nothing would make him happier than moving the trial out of Alameda. He and other police across the county, state, and country must be celebrating Judge Jacobson's decision tonight.