Mehserle’s lawyer argues Oakland’s too biased for BART shooting trial

Hearings began yesterday and will continue today at the Rene C. Davidson courthouse in downtown Oakland to consider relocating the murder trial of Johannes Mehserle, the BART police officer charged with shooting and killing Oscar Grant on January 1, 2009.

The hearings, originally scheduled to begin last Friday, had been postponed because the defense’s expert witness, Edward Bronson, had fallen ill and was unable to testify. Bronson, a professor at Chico State and expert in jury examination, had conducted a survey of Alameda residents, which concluded that Mehserle would be unable to receive a fair trial in Alameda County.

In his place on the witness stand today was Craig New, a Portland native and expert on juror psychology, who in the last week has had to get up to speed on a case that is swirling with controversy.

Mehserle’s attorney, Michael Rains, has called for the trial to be moved to another county, arguing that a fair trial in Oakland would be impossible given the widespread local media attention and the racial controversy surrounding the case. “If this case doesn’t deserve a change of venue, no case does,” said Rains, citing a statement from Bronson’s report that was repeated throughout the hearing.

The motion for a venue change is grounded in Bronson’s phone survey of Alameda County residents, administered to 397 people during the month of July by the Winkelman Consulting Company.  The survey, according to Bronson’s report filed to the court, found that 78 percent of all African-Americans polled said Mehserle was probably or definitely guilty of murder, and that 82 percent of all people polled believed violence could occur in the city if Mehserle were acquitted—figures the defense tried to show would suggest bias among potential African-American jurors.

New was brought in by Rains to review Bronson’s data and provide testimony in his place. He testified that the trial’s venue should be changed because Bronson’s survey reveals high levels of pre-judgment in the Oakland community.

New testified that the results seemed to show even more bias among potential white jurors. A third of the white people polled said they thought that Mehserle was not guilty—a figure New called “astronomical,” adding that in his experience with similar cases, five percent would be high figure for people to believe that a person charged with murder was innocent.

Under questioning by Rains, New also cited answers to the survey’s open ended question — “What are your feelings about the victim, the defendant, or the case?” — as indicating a “clear recognition of racist feelings.” He began quoting examples — statements like “one less black person in the city is all right with me”— but was quickly stopped by Judge Morris Jacobson, who said there was no reason to add “unnecessary drama” to the case.

The case has been the subject of much media attention since Mehserle was caught on video taking out his gun at the Fruitvale BART station on January 1 and shooting Grant, a 22-year-old African-American man, in the back while he was lying prone on the ground in handcuffs. Mehserle has pled not guilty to murder. His attorney has said Mehserle was reaching for his taser and shot Grant by mistake.

The entire case could depend on the change of venue motion, according to Dean Johnson, a veteran criminal law attorney who was observing the hearing. “If you get a conservative jury down in Orange County or Sonoma County, the defense attorney’s got an easy road to acquittal,” Johnson said.  “The defense would be, he was reaching for his taser and got his gun instead- it’s a simple mistake of fact. With the right jury, that could walk Mehserle right out the door.”

During Tuesday’s hearing, the defense lawyer Rains argued that media exposure of the case has created a climate in which nearly everyone in the community knows about the case and has formed an impression. Among those polled by the survey, 98 percent had some fact recognition on the case– in other words, they were able to recall at least one fact surrounding the case, such as the fact that the victim was black and that the BART officer who killed him is white.  To reinforce the idea of widespread knowledge of the case, Rains produced in court a stack of 1,800 news articles published between January and August of this year.

David Stein, the prosecuting attorney, countered by questioning the validity and objectivity of both Bronson’s survey and New’s testimony.

Under questioning by Stein, New said that he typically charges $225 an hour for his work on cases, and that he was “fairly confident” that he would be paid by the defense for his review and testimony. New also said that while he couldn’t be sure of how much work Bronson had done on the survey, it was possible that he was being paid $50,000 or more by the defense for his effort.

Stein argued that survey statistics can be manipulated, and claimed the survey had a “response bias” based on the wording of some of its questions. For example, Stein pointed out that the question regarding violence in the survey was prefaced by the statement: “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?”

Stein said this was a clear suggestion of an expected outcome, and that New’s testimony using this statistic as an indicator of community bias was misleading. He also pointed out that at least 429 of the 1,867 articles produced by the defense were from newspapers published outside of Alameda County, calling into question whether the media attention is as much of a complicating factor as the defense would argue. Stein argued that many of the articles being used by the defense to question the objectivity of local jurors weren’t even read widely in Alameda County.

The hearing took place after a protest calling for keeping the trial in Oakland. Protest organizers called the change of venue motion a “slap in the face” to the African-American community. Yvette Felarca, an organizer with civil rights group By Any Means Necessary, said Rains was “spinning the statistics to create a racial divide in this community which is completely misrepresented.”

The hearings are set to continue at 2:00 PM Wednesday, when new data will be made available to the court by New regarding the results gathered by Winkelman Consulting for the survey.

Image: Minister Keith Muhammad leading protesters outside the hearing today.

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

Connect with Oakland North on Facebook, or follow us on Twitter.