A Cursory Look at Some of the Issues of the Johannes Mehserle Trial - FIVE

The People v. Mehserle begins in Los Angeles on June 10, 2010. The waters have been somewhat muddied, however, due to much of the mainstream media coverage surrounding this case.

FIVE: MEDIA MATTERS

The court system strives to make sure that jurors are fair, impartial, objective, and are capable of using reason and critical thinking skills.

Should that fail however, attempting to influence the populace before they even get into the courtroom is a nice back-up plan.

Michael Rains, attorney for Johannes Mehserle, has been under a gag order in the case since last year, but one shrewd way he gets around the order is to play to the press through his legal motions. The issues he chooses to focus on and the reasons why make for great copy and are thus carried to the populace with very little effort.

Media as Judge

Some news organizations insist on calling the proceedings the “2nd degree murder trial” of Johannes Mehserle (http://bit.ly/bL8nhZ, http://bit.ly/c1apLP, http://bit.ly/9zoGjr, http://bit.ly/9nCyFg, http://bit.ly/aZIZyF).

The Alameda County District Attorney has charged Mehserle with murder but has not specified what degree – what type of murder – he should be charged with.

Murder in the second-degree – or outright acquittal – is what Michael Rains wants the jury to choose. Rains doesn’t want the jury to convict his client of murder in the first-degree, or voluntary manslaughter or involuntary manslaughter.

Rains submitted a motion to the court outlining his desires for the jury, however, regardless of what it is that Rains wants, the judge has not yet ruled on this request. More than likely, the judge will not rule on the request until all evidence has been presented in the case.

At that time the judge will decide to instruct the jury, based on the evidence presented, on what they should convict Mehserle of; it could be all five options, or it could be as Rains has requested, or it could be something other.

It is, therefore, factually inaccurate for a news organization to state what type of trial this is when the District Attorney hasn’t, or before the judge in the trial has even made his decision.

Media as Cheerleader

Pre-trial hearings are held in order to determine the types of evidence, lines of questioning, types of witness testimony, etc., that can be used when the trial actually gets started. Instead of gambling on certain items or issues being ruled inadmissible or being overruled during the trial, it is one avenue for attorneys to ensure that their game plan is part and parcel of the trial.

Rains’ pre-trial motions in this case make various requests; one motion asked the judge to instruct witnesses for the prosecution to call his client “Officer” Mehserle; in the same motion Rains asked that witnesses be instructed not to call Oscar Grant a “victim.”

One motion requested that Oscar Grant’s arrest report from a 2006 encounter be entered into evidence. The judge ruled that a portion of the report be allowed as evidence and that the rest was not relevant.

Some media reports on the judge’s decision in these matters read almost like a sporting competition (http://bit.ly/9e5HCU, http://bit.ly/cSLtvA, http://bit.ly/ciJ7Mw).

The news reports referenced directly above refer to the testimony of a video expert and calling John Burris as a witness. Burris is the attorney for the Grant family and others in a civil suit against BART.

Use of an expert by the defense is not an unreasonable request. In this case however a motion was never made requesting such.

Michael Schott, the forensic video image analyst who will testify for the defense, was listed on the Defense’s List of Potential Witnesses.

As reflected in the Minute Order of the court (i.e, the court’s notes):

“Defense request to call an expert on videos is heard. The court will allow jurors to get some assistance as long as it does not cross the line into advocacy. The people are against allowing interpretation of the video. The court will have a further hearing in advance of trial on this issue on June 1, 2010.”

In other words, the prosecution wanted to ensure that the defense’s video expert would not “tell the jurors what they are seeing,” but would only tell the jurors his opinion of what he saw on the videos. A hearing was called and Schott was sworn in to give “sample testimony” as to what he would testify to during the trial. After some grilling by the District Attorney, the court was satisfied and stated that Schott could testify with some restrictions.

Burris’ name appeared on the Defense’s List of Potential Witnesses. Burris felt this was an attempt both silence his criticisms of Mehserle and BART and to keep him from being and observer in the courtroom during the trial.

Burris submitted a motion to have his name removed from the witness list and Burris’ motion was denied. The court ruled his name would remain on the list however, he may not be called as a witness, and the judge found that a gag order imposed last year on the defense and the prosecution should extend to both Burris and BART’s civil trial attorneys.

The gag order imposed on Burris comes five months after Rains initially brought it up.

Rains’ motion didn’t “win” because he did not submit a motion – Burris did.

Losses

Most recently, on June 9, 2010, the judge denied three motions that Rains had filed just prior to the opening of the trial. While most news reports stated the motions were denied few, if any, appeared to continue their ‘sporting match’ theme with Rains as loser.

Rains submitted a motion asking the court to exclude former officer Anthony Pirone’s use of a racial slur against Oscar Grant. Although Rains states in his motions that Grant first used the racial slur against Pirone, he still hoped to exclude it, arguing that it would be prejudicial to his client. The court ruled that it was part and parcel of what happened on the platform and should be allowed.

Six videos of Oscar Grant’s shooting by Johannes Mehserle are known to exist and have been compiled by both the defense and the prosecution. Rains submitted a motion requesting that only the defense’s video compilation be allowed in court, stating that the prosecution’s had errors in it. The judge ruled that was a matter better left to the jury.

Finally, Rains wanted to exclude the testimony of Sophina Mese, girlfriend of Oscar Grant and mother of their 4-year old child, from the court. Rains had argued that her testimony would be redundant and that the prosecution wanted her included to evoke sympathy for Oscar Grant.

In response, the prosecution stated that Ms. Mesa’s testimony would not be redundant; it would in fact offer additional testimony that Oscar Grant was afraid of Tasers. Complimentary to that testimony is the prosecution’s introduction of evidence by Oscar Grant himself: Grant took a cell phone picture of Johannes Mehserle pointing his Taser at him.

No wonder Rains wanted Mesa excluded from the trial.

The Hon. Robert Perry, judge in this case, says that court will be held 5 days a week, from 8:30 a.m. until 4 p.m.

The mainstream media will probably be putting in a little more time than that; they usually do.