As the Giants hosted the San Diego Padres on October 3, a long white banner peeked above the right field wall of AT&T Park. The sign, attached to the rigging of a yacht anchored in what Giants fans call “McCovey Cove,” did not support either team. Instead, the banner spelled out a political message in black block letters: Free Johannes Mehserle. Strung along the base of the boat was another banner listing a website, Justice4Johannes.com.
Johannes Mehserle, the former BART police officer convicted in July of involuntary manslaughter in the shooting death of Oscar Grant III, is scheduled to be sentenced on November 5. But as his sentencing draws nearer, some Bay Area residents are calling for support for him, and his attorney, Michael Rains, is asking for a new trial, saying the defense team has uncovered evidence that could have changed the outcome of this summer’s trial.
In the early hours of New Years Day, 2009, Mehserle responded to a disturbance on a train at the Fruitvale BART station. While attempting to arrest Grant, who was unarmed and lying face down on the BART station platform, Mehserle fired his gun into Grant’s back. Mehserle testified in court that he mistakenly drew and fired his gun instead of his Taser shock weapon. This July, a Los Angeles jury acquitted Mehserle of murder but convicted him of involuntary manslaughter, finding him criminally negligent in Grant’s death.
A key question during the trial was how Mehserle could mistake his gun for his Taser. In addition to the two weapons being different shapes and weights, the Taser and pistol were located on opposite sides of Mehserle’s belt— Mehserle carried his Taser on his left side and his gun on the right. The prosecution argued that there was no precedent for an officer mistaking a gun for a Taser while carrying the weapons on opposite sides of the belt. According to Rains, the defense team presented six cases of police officers mistakenly drawing a gun instead of a Taser, but in each case, the weapons were on the same side.
On October 4, Rains filed a motion for a new trial, saying that the defense had discovered a previously unknown case that could have tipped the results of Mehserle’s trial. According to Rains, in April 2008, just eight months before Grant’s shooting, a police officer in Nicholasville, Kentucky, mistakenly fired his gun instead of his Taser while trying to break up a fight, wounding a man. Rains said the officer was armed with the same model Taser as Mehserle and that it was located on the opposite hip, just like Mehserle’s. A grand jury decided against indicting the Kentucky officer.
Rains believes that if the jury had known of a similar incident in which an officer was not criminally prosecuted, the jury might not have convicted Mehserle. The jury, Rains said, “never got the benefit of hearing testimony that there was a case almost exactly like this.”
“Oh boy, do I wish we had it. Boy, oh boy,” said Rains of the Kentucky case. “I think it definitely would have made a difference to this jury. Boy, would we have paraded that.”
How did the defense team miss the Kentucky case the first time around? Rains said that during pretrial research, the defense team hired a Taser expert with close contacts at Taser International, which supplies Tasers to most police forces nationwide. According to Rains, the team never learned of the Kentucky case because there was no associated lawsuit. “We thought we had every single case that had been documented,” said Rains.
“Lo and behold, the Taser expert—after [the trial] was over—was contacted by Taser International” regarding the Kentucky case, Rains said.
John Burris, the attorney for Oscar Grant’s family in their civil suit against Johannes Mehserle, believes the Kentucky shooting would not have swayed any jurors. “I don’t think it would have made any difference. The jurors said he was negligent. If [Rains] found new evidence that said on the night of the event when he talked to his friends he said, ‘I made a mistake,’ then that’s different. That might have been significant.”
David Sklansky, a UC Berkeley criminal law professor, says that in order for a new trial to be granted, the defense has to clear two hurdles. First, the defense must prove that the new evidence could not have been previously discovered using reasonable diligence. Second, the judge must rule that the new evidence would have led to a different trial outcome. “It’s not particularly unusual for a defense lawyer to request a new trial,” said Sklansky. “It is unusual for it to be successful.”
Los Angeles County Judge Robert Perry is expected to rule on Rains’ motion on November 5, the same day as Mehserle’s sentencing.
In the months since Mehserle’s conviction, family, friends, and other supporters have staged at least three pro-Mehserle rallies across the Bay Area. A rally in Walnut Creek in July attracted hundreds of supporters as well as counter-protestors. Now, Mehserle’s camp is showing support in a less confrontational, but equally public way.
According to NBC Bay Area, Mehserle’s father Todd was onboard the boat flying the Justice4Johannes.com banner during the Giants’ final regular season homestand. Representatives of the website told Oakland North they are not affiliated with the Mehserle family nor the boat outside of AT&T Park, but by press time they had not returned additional requests for comment regarding who is running the site or the nature of their goals. Todd Mehserle also declined to comment for this story.
The Justice4Johannes site states that it is dedicated to “the support of former BART Police Officer Johannes Mehserle, who is being politically persecuted for a tragic mistake which occured [sic] while on active police duty.” The website includes instructions for sending letters of support and care packages to Mehserle’s jail cell in Los Angeles, links to donate to his family, detailed biographical information, and extensive photos, videos, and text laying out a case for Mehserle’s innocence.
In the days before the July verdict, “Justice for Oscar Grant” signs appeared in the windows of businesses across downtown Oakland. A pro-Mehserle website using a similar phrase might be expected to be controversial, but Burris said he has advised the Grant family to stay out of the fray. “I advised them, they should not be overwhelmed by it, nor give a lot of attention to it,” said Burris. “Justice is a relative concept and it has always been, like beauty sometimes.”
Both Burris and Rains expressed sympathy for Todd Mehserle. “He wants people to understand that Johannes should not be forgotten,” said Rains. “He wants to keep the public aware and informed of what he believes to be a serious injustice to his son.”
“They just love their kid, it’s perfectly understandable,” said Burris. “That is one person with a flag. There are 3 million that think [Johannes Mehserle] got away with murder. It’s the actions of a dad or mom.”
Last Thursday, as the Giants hosted a playoff game against the Atlanta Braves, a small, double-masted boat joined the Justice4Johannes yacht in McCovey Cove. The boat was almost invisible behind two enormous banners that together read Justice4OscarGrant.net. The website redirects to OaklandForJustice.org, whose homepage denounces the motion for a new trial. “This motion by Raines [sic] is simply another attempt by the defense to manipulate the facts of the case and allow Mehserle to go free for his crime,” the website says.
In the ninth inning, the boat floated just a few feet away from the much larger yacht, still bobbing behind the right field wall.
Read our past coverage of the Johannes Mehserle trial on Oakland North here.