Photo by Walkkabouts

Johannes Mehserle’s trial is drawing to a close in downtown Los Angeles.  The prosecution rested its case after calling some 26 witnesses.  Despite the parade of witnesses, the prosecution has not made a strong case for 1st degree murder.  Yes, it is clear that Oscar Grant was killed without provocation.  It appears that he did absolutely nothing to justify his murder.  That part of the case is not in dispute.

However, the prosecutor has to prove 1st degree murder. That will not be easy. In California, you not only have to prove that a physical act caused a death, but that the person’s mental state was the cause of the death. That’s what’s known as malice aforethought.  Basically, that means that the prosecutor must show that the defendant unlawfully intended to kill, or that he intentionally committed an act to kill, or that the probable consequences of the act were dangerous to human life. That is a huge hurdle to overcome.

The prosecution hasn’t cleared the bar on this one.  The District Attorney has shown that Mr. Mehserle intentionally committed the act of shooting Mr. Grant, but he has not demonstrated that he knew the act was dangerous to human life, and that he acted with conscience disregard of human life.  The evidence has shown two distinct pictures that may be enough to make it hard for the jury to reach a verdict of murder in the first degree.

Of course, it is difficult for the prosecution to prove Mr. Mehserle’s state of mind because it has virtually no statements from Mr. Mehserle. There was no investigation by BART, the Oakland Police,  or the Alameda County District Attorney’s office immediately after the shooting.  The prosecution stated that they would be able to show more of the Mehserle’s state of mind in the rebuttal phase of the trial.

Meantime, the defense has launched its wicked character assassination of Mr. Grant. The defense is depicting the dead man as a dangerous, evil person, who deserved to be shot. The defense has already claimed that Mr. Grant was a hardened criminal who posed a danger that night on the BART platform.

It is going to be hard to show that a man lying face down on cement and surrounded by armed police officers represented a threat. Highlighting Mr. Grant’s petty criminal background doesn’t make much of a case.  Regardless what human imperfections the defense shows, it won’t add up to a good reason to kill an unarmed man.

 Finally, Mr. Mehserle, for the first time gave his version of the events.  His stage-crafted and well-rehearsed testimony was complete with on-cue tears and humanizing gestures.  His claim that it was all just a mistake, he was reaching for his Taser and pulled his gun instead, begs two obvious questions.

This doesn’t sound right. Not only does all the video evidence and eye-witness testimony suggest that Mr. Mehserle feared Grant was going for a gun in his front pocket, but why didn’t Mr. Mehserle say he made a mistake in the minutes after he killed Mr. Grant. How credible the jury finds this account will determine Mr. Mehserle’s fate.

The tragedy of Oscar Grant’s killing was compounded by bureaucratic bungling and inertia. The very day Mr. Mehserle shot Oscar Grant, he should have been immediately interviewed by BART police.  This killing took place within the City of Oakland’s jurisdiction.  The Oakland Police Department should have immediately investigated the murder.  Finally, the District Attorney’s office should have moved swiftly to investigate this crime, and not wait on BART, or the Oakland Police Department. Mr. Mehserle should have given his account to erase any confusion of his position.

Instead, BART allowed Mr. Mehserle to walk away from the scene without making any statement.  The Oakland police never got involved in the investigation.  Mr. Mehserle was allowed to remain uncharged, uninterviewed and uninvestigated for a week.  When BART finally started to investigate, Mr. Mehserle simply resigned and refused to speak to them.  This is absolutely no way to run a police department or a criminal investigation.

The defense counsel is also guilty of appalling behavior.  Every defendant has a right to adequate counsel and a complete defense; however, the defense lawyer’s theatrics have crossed a line.  He has attempted to introduce every bogeyman imaginable in this case: racism, sexism, hip-hop rage, predatory criminals, dangerous felons.  His act has done his client a disservice.

The defense attorney’s motion for a change of venue was as laughable as it was pathetic.  He again dredged up every racial stereotype you can imagine to justify moving the trial, as if blacks in Alameda County are incapable of listening to the evidence and reaching a just verdict.

The defense’s cheap ploy became a classic case of be careful what you wish for.  Instead of landing in a cop-friendly county like Sacramento, Fresno or San Diego, he got Los Angeles.  This is a city that went through more than 10 years of police scandals and police brutality. Angelenos of all stripes have a healthy distrust of the police.

Regardless of the outcome of this case, a man lost his life, a daughter lost her father, a family lost a relative, and an officer’s life dramatically changed.  A more diligent investigation and more professional analysis on all sides of the law may have prevented this tragedy from unspooling in the shameful way it has.  A prompt, thorough investigation may have shown that Mr. Mehserle was guilty of reckless acts that do not reach the level of murder, and the case could have been resolved without all of the character assassination and race-bating.

Let’s hope this case ends quickly so that the families and relatives can mourn the loss of their loved ones. Let’s hope our public safety institutions have learned a lesson. Let’s hope that out of this tragedy grows the positive recommitment to making our city better. We must not fall victim to storyline again.