Survey bias, county population factors in Mehserle change of venue debate

In the third day of hearings to relocate the Johannes Mehserle trial, on Thursday the prosecutor gave arguments suggesting that a fair trial could be achieved in Alameda County and that the defense’s argument to the contrary was based on evidence that was “neither credible, nor reliable.”

Mehserle, a former BART police officer charged with murder in the New Year’s Day shooting of Oscar Grant, is scheduled to stand trial in Alameda County in several weeks, unless defense attorney Michael Rains can convince a judge that the trial should be moved elsewhere. Rains has argued that due to racial controversy and the extensive local media attention given to the case, Mehserle cannot receive a fair trial here.

Wednesday’s proceedings followed two days of questioning directed at juror psychology scholar Dr. Craig New, the defense’s expert witness who testified in support of a change of venue for the trial.  New was enlisted to testify in place of Edward Bronson, an expert in venue change cases and the creator of a community survey that is the statistical basis of Rains’ argument for relocation. Bronson recently became ill and unable to appear in court.

Bronson’s survey, administered over the phone to 397 Alameda residents in July, was intended to determine potential bias among community members regarding the case. Rains has argued that the survey suggests racial polarization and unrest that would affect a potential jury. According to the survey’s results, 78 percent of African-Americans said they think Mehserle is guilty of murder, and 82 percent of all respondents thought violence would occur if he was acquitted.

But on Wednesday, prosecutor David Stein continued to argue that the survey questions themselves showed subjectivity, and were written to garner a certain response.

For example, one survey question asked: “Early in the morning on this past New Year’s day, there was a disturbance at the Fruitvale BART station in Oakland in which a BART police officer shot an unarmed young man named Oscar Grant in the back while Grant was lying facedown on the station platform. Have you read, seen, or heard anything about this incident?

Stein said that this question, intended to ascertain a respondent’s level of knowledge about the shooting, could have been asked without the “inflammatory” details surrounding the case, such as the fact that Grant was unarmed and that he was shot in the back.

Stein argued that these details were specifically inserted not only to increase the number of “yes” answers to this question — 97 percent of respondents said they had heard of the case — but also to influence the survey-takers’ response to a follow-up question. That question asks: “The BART officer who fired the shot that killed Oscar Grant is named Johannes Mehserle. He is now charged with murder. Based on what you have read, seen, or heard about the case, do you believe that Johannes Mehserle is definitely not guilty, probably not guilty, definitely guilty, or probably guilty of the murder charge?”

Stein argued that the survey evidence “has no value” in the proceedings and pointed out that both Bronson and New were paid by the defense to provide testimony. “The defense has spent over $20,000 on Dr. Bronson and this survey,” said Stein, who added that for that kind of money, “you’d think the survey would be a little less biased.”

Presiding judge Morris Jacobson challenged Stein’s reasoning, reminding him of New’s testimony that the survey was created in the “accepted mode” among social scientists. However, Jacobson also mentioned Wednesday that Bronson had been discredited as a biased witness in a prior case (People v. Pride, 1992), an issue that Rains took up when it was his turn for closing argument.

Rains said that Bronson, who has testified in over 150 change of venue hearings, shouldn’t be discredited because of a single court proceeding. In addition, Rains argued that Stein was attacking the credibility of an expert witness in his own field of study without serving up another expert witness to testify to the survey’s bias.

Rains’ closing arguments will continue Friday, when he will likely address an issue that Jacobson raised before adjourning Thursday’s hearing: Alameda County’s large population.  Because of the metropolitan area’s sizeable jury pool, Jacobson said, the county is better able to avoid selected prejudiced jurors. Stein had argued previously that even if 45 percent of the population was unable to set their bias aside in order to be jurors, bringing in 200 potential jurors and eliminating 45 percent of them would still yield 110 qualified citizens, more than enough to create a jury. Stein said that moving the trial without first trying to assemble an unbiased Alameda jury would be “like a doctor performing a surgery without performing a diagnosis.”

Jacobson said that population size “weighs very heavily” against the motion to relocate the case, and that population was a determining factor in several of the change of venue cases that have come before the court in the past.

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

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