Probation or prison? On Friday morning, the sentence of Johannes Mehserle, the former BART police officer convicted of involuntary manslaughter in the death of Oscar Grant III, will rest in the hands of one man, Los Angeles Superior Court Judge Robert Perry.
In the same downtown court building that housed the O.J. Simpson trial, Perry is expected to juggle a wide range of sentencing options from probation to 14 years in California state prison. Perry will also consider a motion filed by Mehserle’s defense in early October requesting a new trial. The final outcome of the racially charged case will be watched closely by supporters of Grant and Mehserle and could ignite more protests in Oakland, the city where Grant was killed on New Years Day, 2009.
The California penal code stipulates a sentence of two, three or four years for involuntary manslaughter. Because Mehserle was convicted of a gun enhancement charge for using a firearm in Grant’s killing, Perry could add an extra three, four or ten years to his sentence.
On Friday, lawyers, members of the Grant family and Johannes Mehserle himself are expected to ask the judge for differing sentences, but how the sentencing options will be mixed and matched is completely up to Judge Perry.
“He has enormous discretion,” said Mehserle defense attorney Michael Rains. “I don’t know what to expect.”
Since Mehserle’s July conviction, the Grant family says they have delivered over 5,000 letters from Bay Area residents to Judge Perry—an issue Grant’s uncle Cephus Johnson says is important in the community where Grant grew up.
“It’s all about policemen being held accountable for the murders they commit,” Johnson said. “If he gets 14 years, it will bring a ray of hope that the justice system will work, and it’s a notice to police officers that you will be found guilty for the murders you commit.”
On Friday, Rains will argue for probation and will ask Perry to throw out the gun enhancement conviction. Rains says it should not apply in this case because the jury’s conviction of involuntary manslaughter includes the finding that Mehserle did not intentionally use his gun. “I think the judge will find that it was erroneous,” said Rains. “He can rule that he is not going to uphold that and he is going to sentence him based on the involuntary.”
Stanford criminal law professor Robert Weisberg says that although the outcome of the sentencing is hard to predict, the gun enhancement might be thrown out or minimized by Perry. “My problem is that it doesn’t make any sense in this case,” said Weisberg. “[Mehserle] is supposed to carry a gun. You would think that [Perry] would choose a pretty low-end sentence on the enhancement and perhaps make the enhancement concurrent with the prison sentence.”
Before sentencing begins, Perry will address Rains’ motion for a new trial, citing, among other issues, a similar shooting in Kentucky that was discovered by the defense after the July verdict. 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, wounding a man. A grand jury ultimately declined to indict the officer. Rains argues that had he been able to present this information to the Mehserle jury, it could have swayed the verdict. A finding in favor of Rains’ motion would cut short Friday’s proceedings and clear the way for a retrial for Mehserle on the charge of involuntary manslaughter.
Oakland officials are also preparing for Friday’s sentencing by assembling additional police officers from Oakland and outside agencies. In an email, Oakland police spokesperson Holly Joshi says officials are prepared for a peaceful protest, should one occur downtown, but will not tolerate “any violence or destruction of businesses or personal property.”
After July’s involuntary manslaughter verdict, formerly peaceful city-sanctioned protests in downtown Oakland turned violent and led to looting and scattered violence. At least 12 businesses were vandalized and 78 people were arrested after the city-sanctioned rally ended. The city attorney’s office has since filed suit against four alleged looters.
During the July protests, the 12th Street and 19th Street stations were temporarily closed.
BART officials say they may have to close stations in downtown Oakland on Friday in the event of a large demonstration. BART will release service advisories on their website and with text and email updates.
On Monday, BART board members officially opened office space in its downtown Oakland headquarters to house the first independent BART police auditor, assigned to investigate public complaints about BART police officers. In July, Governor Arnold Schwarzenegger signed legislation creating the oversight body in response to the Grant shooting.
In a statement to the Oakland business community released Wednesday, city administrator Dan Lindheim asked local businesses not to close and said Oakland is hoping for the best but preparing for the worst. “While it is not anticipated that any major protests or demonstrations will occur, the Oakland Police Department has the resources and plans in place to respond in the event that a demonstration or protest emerges,” wrote Lindheim.
Lindheim also notes that Friday will be a busy day in Oakland with a sold-out concert at the Fox Theater and the First Friday Art Walk both taking place.
There is at least one rally scheduled for Friday in support of Oscar Grant. A coalition of organizations, including the General Assembly for Justice for Oscar Grant, is asking supporters to bring flowers to a temporary altar in front of Oakland City Hall beginning at 2 pm.
Local civic and religious organization members plan to be in the downtown area to serve as peacekeepers if protests turn violent. Teams of five or more peacekeepers trained to defuse violent situations plan to roam the area and will be in contact with Oakland Police liaisons.
Lawyers on both sides are urging a peaceful response to the sentencing. “If you do not like the decision you should protest. Exercise your First Amendment rights for assembly and freedom of speech,” said John Burris, the attorney advising the Grant family. “This does not mean that it should be one based upon violence.”
“What I’d like to see is of course no violence or property damage,” said Rains. “They can carry placards and they can denounce rulings. What’s obvious is not to carry it to the next level—violence, destruction and looting.”
Read our past coverage of the Johannes Mehserle trial on Oakland North here.