Prosecutor pushes in court to keep Oscar Grant murder trial in Oakland

As hearings to relocate the Johannes Mehserle murder trial continued in downtown Oakland today, a prosecutor worked to persuade a judge that the former BART police officer could receive a fair trial in Alameda County, and that a survey suggesting otherwise was flawed.

The defense attorney for Mehserle, who has been charged with murder in the New Year’ Fruitvale BART station shooting of Oscar Grant, has argued that a fair trial would be impossible in this county because of the local media attention and racial controversy surrounding the case, and on Tuesday had called an expert witness to support the move with statistical evidence.

But this afternoon, prosecutor David Stein  argued against the motion to move the trial, saying  the survey questions used to produce those statistics reveal a “response bias,” and questioned the objectivity of the defense’s expert witness, Dr. Craig New.

New, a juror psychology scholar, was testifying in place of Edward Bronson, the creator of a survey which is being used by Mehserle’s attorney, Michael Rains, to suggest racial bias and prejudgment in the community. Rains argued that such bias would preclude a fair trial. Bronson recently fell ill, and Rains enlisted New to examine the data surrounding the case and testify in Bronson’s place.

Bronson’s survey was given to 397 Alameda residents during the month of July over the telephone. 97 percent of respondents to the survey had some factual knowledge of the case, and 82 percent of respondents believed that violence could occur in Oakland if Mehserle were acquitted.

Mehserle, a former BART police officer, shot 22-year-old Oscar Grant in the back as he lay handcuffed on the ground at the BART Station on January 1. Rains has said the incident, which was caught on video by multiple BART passengers, was an accident and that Mehserle was reaching for his taser but pulled out his gun instead.

Today Stein conducted a cross-examination of New, who testified that given the results of Bronson’s survey and the extensive media attention given to the case, the trial should be moved to another county.

Stein argued that the 82 percent of surveyed people who answered “yes” to the question of violence, which reads: “Some people are concerned that if the jury acquits Mehserle of murdering Oscar Grant, there could be violence. Do you agree or do you disagree that there could be violence?” responded affirmatively because the wording of the question prompted them to.

New said that if he were writing the question, he would have added, “Some people don’t believe there will be violence,” to make the question more balanced.

“You didn’t even notice the bias until I pointed it out, isn’t that true?” Stein asked.

New responded, “That’s true.”

Stein continued to challenge both New’s experience and his objectivity. Under questioning from Stein, New testified that he charges $225 an hour for his services, and Rains revealed today that Bronson was paid $11,000 by the defense for his work creating the survey.

One of the day’s stirring moments came during Stein’s cross-examination of New, while the expert witness was being pressed to explain why an Alameda County jury might be particularly biased in the case. Stein argued that everyone has a bias but that “the question is whether a juror will be able to set aside that bias in court.” New had previously stated that the risk of a “stealth juror”—someone who acts objectively during juror screenings but who hopes to get onto a jury to advance their own agenda—would be high if the trial stays in Alameda County.

Judge Morris Jacobson said that in his experience hearing cases in California courts, racial attitudes are often expressed during juror screenings and that stealth jurors are a risk taken into consideration in any case. “Wouldn’t we have the problem of stealth jurors even if we move the trial to another county?” Jacobson asked.

The hearings are scheduled to continue Thursday afternoon, when the questioning of  New is expected to conclude.

Read our past coverage of the Johannes Mehserle trial on Oakland North here.

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