By Alex Emslie
The sentencing of the former BART police officer who shot and killed Oscar Grant—an unarmed transit rider—on Jan. 1, 2009 is scheduled for Nov. 5.
San Francisco Police Commissioner and former prosecutor Jim Hammer said that in most homicide trials, each side is granted about one hour for statements relevant to sentencing but not the criminal trial—this includes victim impact statements.
“When a victim’s mother gets on the stand and says, ‘he took my son away,’ that’s the most emotional, raw part,” Hammer said.
Mehserle was convicted of involuntary manslaughter and the use of a firearm in the commission of a crime on July 8. The jury in the trial rejected the more severe charges of second degree murder and voluntary manslaughter.
The jury’s finding that Mehserle wrongfully used his service weapon could add up to ten years to his sentence under California law.
Los Angeles Superior Court Judge Robert Perry has the discretion to: sentence Mehserle from two to 14 years in prison, grant the defendant probation or scrap the entire trial and start over.
Possibility of a new trial
Mehserle’s attorney Michael Rains sent notice to prosecutor David Stein that he will move for a new trial at the Nov. 5 sentencing hearing.
Rains wants to introduce new evidence—another “Taser confusion” that resulted in an allegedly accidental shooting more similar to Mehserle’s case than others presented at trial.
He also argued the court made mistakes in allowing the jury to reach an involuntary manslaughter verdict, and that the firearm enhancement should not apply to on-duty police officers.
Grant family attorney John Burris said a new trial is absolutely unlikely.
“I don’t think the motion will be granted,” he said, adding the new evidence was not significantly different than testimony the jury already heard.
But in order to eventually appeal the conviction, Mehserle’s defense must exhaust all other options including requesting a new trial.
The judge will not unilaterally reject the jury’s verdict, and “whether or not an officer armed with a gun can be charged with an enhancement—that’s not going to fly. The state legislature has already looked at that issue,” Burris said.
The defense has said since the verdict, that a conviction of involuntary manslaughter meant the jury believed Mehserle intended to fire his Taser but mistakenly fired his gun as the result of criminal recklessness.
In Stein’s response to the request for a new trial, he wrote that the involuntary manslaughter conviction shows the jury believes Mehserle deliberately fired his gun but did not intend to kill Grant—not that they believed Mehserle intended to fire his Taser.
“Defendant approaches the jury’s verdict like a shopper at a produce stand,” Stein wrote. “He can pick and choose what he likes and ignore the rest.”
If the judge rejects the defense’s motion for a new trial, he will sentence Mehserle according to mitigated, midterm and aggravated prison terms for both the involuntary manslaughter charge and the firearm enhancement.
Involuntary manslaughter carries prison time options of two, three or four years.
In extraordinary involuntary manslaughter cases, a judge can also grant a probation sentence without prison time. But that would require rejecting the firearm enhancement, which nulls any option of probation.
The firearm sentence enhancement carries additional mitigated, midterm and aggravated terms of three, four and 10 years.
According to litigation cited by Rains, judges are advised against granting probation when it would “unduly depreciate the seriousness of the crime.”
Rains pleaded with the court not to be swayed by the publicity surrounding the case.
“It seems inevitable that unless Mehserle goes to state prison for a long time, some people in Oakland will break windows and burn cars,” he wrote to the court.
In the hours and days following the shooting, Mehserle insisted he thought Grant had a gun and was reaching for it with his right hand, which was a cornerstone of the prosecution’s initial argument that he intended to shoot Grant.
“It wasn’t until the defendant chose to testify on his own behalf that we heard him say, for the first time, that the shooting was an accident,” Stein wrote in the prosecution’s sentencing memorandum. “Prior to that time, defendant continuously tried to justify the shooting by saying that he believed Mr. Grant was ‘going for a gun.’”
Stein alleged that when Mehserle testified that he confused his gun for his Taser he effectively lied to the jury, and therefore the maximum sentence should be applied.
“If the sentence in this case is to serve any purpose whatsoever, it must serve as punishment,” Stein wrote. “Punishment for the unlawful taking of a human life and for the attempt to cover up criminal conduct by testifying under oath that the shooting was the result of ‘Taser confusion.’”