At that time Judge Robert Perry is scheduled to rule on a motion requesting that attorney John Burris be removed from the list of potential witnesses that the defense intends to call during the trial.
Burris is the attorney for the family of Oscar Grant, Grant’s 4-year old daughter, and several young men in a multi-million dollar civil suit against the Bay Area Rapid Transit agency (BART). The young men were present on the Fruitvale BART Station platform on the morning of January 1, 2009, when Mehserle shot the unarmed Grant in the back.
Rains filed a motion to “Compel Attendance of Witnesses” with the court on May 11, asking that subpoenas be served on John Burris and six other individuals. Rains states in the motion that:
“Burris is an attorney who represents some of the individuals who were involved in this incident … Mr. Burris previously held a press conference in which he indicated that the individuals he represents may be reluctant to give testimony which would ostensibly be helpful to Mr. Mehserle and harmful to Mr. Grant concerning many of the events which occurred on the platform …” .
As of this writing a subpoena has not been served on Burris however, Carl Douglas, Burris’ Beverly Hills-based attorney, says rather than waiting for a subpoena to be issued and then file a motion to quash, they have decided on this course of action.
Burris has stated on many occasions that he believes Rains is attempting to silence him by calling him as a witness and Douglas concurs. “Generally, witnesses are excluded from being inside of a courtroom before they testify in a proceeding, and Mr. Burris wants to be present in the courtroom to monitor the trial because several of his clients are witnesses. This is a backdoor attempt to have Mr. Burris excluded, said Douglas.”
“We also think this is an attempt to have Mr. Burris gagged. When Mr. Burris speaks about matters relating to the civil suit, it is always to the detriment of Mr. Rains’ client, so Mr. Rains want to shut Mr. Burris up. And Mr. Burris will not go quietly.”
Former BART officer Tony Pirone, who was fired from the agency in April along with former officer Marysol Domenici, is also listed as a potential witness for the defense.
Although Pirone’s name was not listed on Rains’ request for subpoenas to appear, it was the subject of the Alameda County District Attorney’s “Proceeding to Compel the Attendance of an Out of State Witness.”
The document, filed with the court on May 4, listed Pirone as a “material witness” whose presence would be needed in court in Los Angeles “from the 7th day of June, 2010, until the 25th day of June, 2010,” and characterized him as having “hostility towards the prosecution in this case.”
Media reports quote William Rapoport, Pirone’s attorney, as saying that the former officer still resides in California; that he is not hostile to the prosecution and that he will be in attendance at the trial.
“Pirone voluntary accepted a subpoena from an inspector in the district attorney's office on [May 25],” and, “Pirone also accepted a subpoena from Mehserle's lawyer, Michael Rains,” according to the Bay City News Service.
The court will also hear on June 1 a motion related to the conditional examination of Michael Schott, a proposed video evidence expert, also on the list of potential witnesses to be called by Rains.
Judge Perry has yet to issue his ruling on the defense’s motion regarding the issuance of instructions on homicide to the jury. The defense is asking the court to instruct the jury to either convict Mehserle of second-degree murder or to acquit him outright.
Michael Rains, attorney for Mehserle, stated in a 103-page brief to the court filed in April that the charge of first-degree murder did not apply to his client due primarily to a lack of “malice aforethought,” and that the lesser charges of involuntary and voluntary manslaughter also did not apply.
Perry's ruling in this matter will most likely come once all of the evidence in the case has been heard.
Jury selection in the trial, which is expected to last three-to-four weeks, is scheduled to begin with the distribution of juror questionnaires on June 2. The questioning of the prospective jurors is slated for June 8, with opening statements in the trial set for June 10, according to a media advisory from the Los Angeles Superior Court.
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