Overcoming the Pitfalls in the Oscar Grant Case

Overcoming the Pitfalls in the Oscar Grant Case

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When prosecutors prosecute police officers for the murder of unarmed civilians no matter how cut and dry the evidence against the accused officer, they know that there are colossal pitfalls to getting a conviction. The pitfalls are certainly there in the prosecution of former BART (Bay Area Rapid Transit) police officer Johannes Mehserle, who is charged in the videotaped New Year's Day 2009 killing of Oscar Grant, a young African American, on a station platform.

Like some cop-on-innocent-victim killings, the case seems to be about as close to a no-lose case for prosecutors. There are compelling videos that show an unarmed and handcuffed Grant face down on the BART platform. Grant does not appear to be resisting the officers. And numerous witnesses confirmed that Grant posed no threat to the officers. BART officials offered the weak explanation that Mehserle might have mistakenly thought that he was reaching for his Taser gun.

If Mehserle had been a civilian and committed murder with the overwhelming witness testimony, videos, and this implausible explanation for the deadly shooting, he would have been swiftly convicted and imprisoned.

But he isn’t. He’s a cop. That’s the first pitfall. There have been hundreds of civilians killed by police officers in California in the past decade. And though in many of the killings, the civilians gunned down have been unarmed, with no criminal record, and were not committing a criminal act, no officer has been charged with murder. Mehserle is the first in the past two decades to be charged.

The second pitfall to convicting cops charged with deadly force is the use of videos.

Defense attorneys who represent cops charged in suspect fatal shootings have honed the discrediting of videotaped evidence to a science. In a number of highly charged cases in cities across the country where the videos of police abuse have been widely televised to shocked millions, skilled defense attorneys have still won acquittal. They tell jurors that the videos are grainy and fuzzy, the sound and quality are poor, the tapes have missing pieces, and they omit events that show what provoked the officer to use force. They pound home that videos can be interpreted in many different ways.

The spin to jurors is that videos give a distorted, clouded and therefore invalid picture of why an officer used deadly force. Defense attorneys also question the honesty, motives, and background of the videographers. Defense attorneys will do the same in the Grant killing.

The third pitfall is the investigation. Police officials and prosecutors move at a deliberately glacial pace in compiling evidence, witness testimony, and officer statements. The time delay works to the officer's advantage. It insures that his version of why officers used force is in sync with the version given by other officers present.

Mehserle's quick resignation after the Grant shooting further blurred things. He evaded an internal investigation and the possibility of giving damning statements.

Defense attorneys wasted no time in asking for and getting Mehserle’s trial moved out of the Bay Area. The aim as always in highly charged, emotional officer-involved shootings, is to get the best, cooperative jury, judge, and trial surroundings. Defense attorneys may have gotten all three when the trial was moved to Los Angeles. It’s a city where few are familiar with the case in detail, a jury pool which some legal observers say has fewer African Americans and Latinos than in the past, and a judge who some charge showed excessive leniency toward LAPD officers implicated in the Rampart scandal.

The key though is the jury in police misconduct trials. Police defense attorneys try to get as many middle-class whites on the panel as possible. The presumption is that they are much more likely to believe the testimony of police and prosecution witnesses than black or young witnesses, defendants, or even the victims. This is no small point. The great majority of deadly force killings are of young African Americans or Latinos. The witnesses generally are young or minority. That's the case in the Grant killing. Mehserle’s attorneys scored another legal coup in successfully barring any mention by prosecutors of his documented past history of violence and provocative acts.

The greatest pitfall is the muddled standard of what is or isn't acceptable use of force. It often comes down to a judgment call by the officer. In the Rodney King beating case in 1992 and the Sean Bell killing in New York City in 2007, defense attorneys turned the tables and painted King as the aggressor, claiming that the level of force used against him was justified. In the Bell case, they claimed that Bell and his companions, who were celebrating Bell’s upcoming wedding, were trying to run them down and they feared for their lives. Mehserle’s attorneys almost certainly will use the same playbook with Grant.

These are daunting pitfalls to convicting Mehserle. But these are pitfalls that a diligent and determined prosecution can and must surmount. The ball now is clearly in the prosecutor’s court to mount that kind of prosecution.


Earl Ofari Hutchinson is an author and political analyst. His new book is “How Obama Governed: The Year of Crisis and Challenge” (Middle Passage Press).