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Judge rules Mehserle trial must leave Alameda County

on October 17, 2009

An Alameda judge ruled late Friday afternoon that the murder trial of Johannes Mehserle must be moved to another county, citing political controversy, an “avalanche” of local media attention, and the threat of violent protest as factors that would prevent a fair trial in Oakland.

“Anyone who lives or works in Oakland is genuinely in fear of more civil unrest and violence,” Superior Court judge Morris Jacobson wrote in his decision. “It is foreseeable that these fears may be realized should a jury return a verdict other than “guilty” on the murder charge.”

The full text of Jacobson’s ruling is available here.

Mehserle, a former BART police officer, is charged with murder in the New Year’s Day shooting of Oscar Grant, an unarmed African-American man, as he lay handcuffed on the platform of the Fruitvale BART station. Eyewitness video footage of the shooting was distributed and seen by millions, leading to impassioned and sometimes violent protests in the Oakland community.

Mehserle’s trial, set to begin November 2, will now be moved to another California county yet to be determined. In the next two weeks courts in other counties will be contacted and a short list of possible sites will be provided to the judge, who will then decide where to move the trial.

John Burris, the attorney representing the Grant family in a separate $50 million civil lawsuit against Mehserle, said that the family was disappointed, though not surprised, by the decision.

“We’re concerned that it will go to a very conservative county with very few African-Americans, and therefore have a jury pool that’s very partial to the police,” Burris said. “The family’s interest is to keep the trial here in Alameda, but the judge concluded that the pre-trial publicity was too intense to overcome this through jury selection.”

The decision comes after a week of hearings in which Mehserle’s defense attorney, Michael Rains, produced expert testimony and a mountain of evidence in court to support his motion for a change of venue.

A stack of 1,867 newspaper articles pertaining to the case was kept on the table in front of Mehserle throughout the hearing, a visual reminder of the media coverage that has reached nearly every Oakland citizen. According to a survey commissioned by the defense and presented during last week’s hearing, 99 percent of Alameda county residents polled had at least some knowledge of the case.

Craig New, the defense’s expert witness and an expert in juror psychology, testified to the credibility of the survey, which found that 78 percent of all African-Americans polled believed Mehserle was probably or definitely guilty of murder. It also concluded that 82 percent of potential jurors believed violence could occur in Oakland if Mehserle was to be acquitted.

Prosecutor David Stein questioned New’s motives, pointing out that he was being paid $225 an hour by the defense to appear in court. Jacobson took issue with New’s testimony in his decision, writing that it exhibited a “strong bias” toward the defense.

But ultimately Jacobson decided that the political turmoil already inspired by Grant’s death necessitates a venue change for Mehserle’s trial. Jacobson said that with the exception of the trials related to the Rodney King beating in 1992, no California case has ever drawn “the breadth or the depth of political activity that has been present in this case. Local, state, state-wide and national level politicians have pushed their way into the debate.” That includes Oakland mayor Ron Dellums, who publicly urged the court not to grant bail to the defendant because doing so might cause more riots, and City Councilwoman Desley Brooks, who has described Grant’s shooting as an “execution.”

The court’s “deepest concern,” though, Jacobson wrote, was that threats of violence and persistent protests would continue throughout the trial, posing a threat to the fair judgment of an Alameda County jury.

Earlier this month Oakland civil rights group BAMN (By Any Means Necessary) led protests calling for the trial to remain in Oakland. Ronald Cruz, a BAMN organizer, said that the judge’s decision Friday was “based on the view that black people are not capable of delivering an objective decision.”

During the first two days of hearings last week, BAMN organized demonstrations outside of the courthouse, waving signs that said “A badge is not a license to murder” and “Jail the murderer Johannes Mehserle.”

Cruz said that the street protests shortly after Grant’s death played a pivotal role in convincing then-District Attorney Tom Orloff to pursue a murder charge against Mehserle.  “The protests were entirely necessary and still are necessary,” Cruz said. “The community has the right to demand justice.”

Yet in his ruling, Judge Jacobson specifically mentioned the protests of the previous week as an indicator that jurors would be “exposed to protestors’ angry demand for ‘justice for Oscar Grant’ each time they go in and out of the courthouse, a constant reminder of the impending civil unrest.”

Jacobson wrote in his ruling that protests at the courthouse eliminate the hope of insulating jurors from the climate of public outrage in Alameda County.

“To me it was ironic,” said Burris, who was an observer, rather than a participant, in the change of venue hearings. “The community was exercising its First Amendment rights for the protests, and it turns out to be used against them in supporting the change of venue.“

“We had the First Amendment rights of the community versus the Sixth Amendment rights of the defendant [to a fair trial],” Burris continued. “The Sixth Amendment rights won.”

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

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