Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

July 13, 2010

Did the Jury for the BART Shooting Get the ‘Right’ Verdict?

by Stephen Littau

It was arguably the first nationally broadcast officer involved shooting of 2009. Early January 1, 2009 BART Officer Johannes Mehserle shot and killed Oscar Grant on a crowded platform at the Oakland station. Several videos (see them here) captured by cell phone cameras show what appears to me to be an execution style shooting of Oscar Grant.

Even as shocking and outrageous as this footage was, I cautioned readers at the time that the videos only tell part of the story (the videos aren’t exactly of the best quality either). Officer Mehserle’s defenders at the time said that he was likely reaching for his tazer rather than his gun. If this could be argued to the satisfaction of a jury pursuant to California law, then Officer Mehserle’s actions do not satisfy the conditions necessary to convict him of second-degree murder but involuntary manslaughter*.

And that is exactly the conclusion the jury ultimately reached. I can imagine a very contentious deliberation where several believed Mehserle acted with intent to kill while several others believed the shooting to be accidental. Those who believed the former must have been outnumbered by those who believed the latter and decided to agree to the lesser charge to prevent the jury from being hung and take the risk that another jury would find him not guilty.

This is pure speculation on my part, of course, but involuntary manslaughter is the verdict. The more important question: is it possible that the jury arrived at a ‘right’ and/or ‘just’ verdict?

For regular readers of The Agitator, you may be a little surprised that none other than Radley Balko believes the jury reached the right conclusion, however unpopular. While I’m not in total agreement with Balko’s reasoning in his recent article in Reason, he does make a persuasive case.**

At the very end of the article, Balko speaks directly to those of us who are a little less than satisfied with the outcome of this case:

The anger at Mehserle’s conviction on a charge short of murder stems from the perception that cops who allegedly commit crimes are held to a lower standard than regular citizens accused of the same crimes […]

[…]

There’s also the appearance of a double standard. Mehserle’s defense is that he made a mistake. In the heat of the moment, Mehserle inadvertently reached for the wrong weapon. But Mehserle had training. He had other cops there backing him up. If we’re going to be sympathetic to him, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night. Both Maye and Frederick say they mistook the raiding cops for criminal intruders. Maye was convicted of capital murder. Frederick’s jury opted for voluntary manslaughter.

That said, Mehserle shouldn’t be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.

I can’t fault the jury for doing the ‘right thing’ as I am sure this was a very difficult case for each individual. And technically, Balko has a very good point that it was the jury’s job to make a decision on the facts of this case rather than consider the injustices that have befell many individuals such as Cory Maye and Ryan Fredrick. And because each of these cases took place in different states each with different legal standards, we probably aren’t exactly comparing apples to apples.

The jury may have reached the ‘right’ or ‘just’ decision but damn it, it sure doesn’t feel*** like the right decision. It seems to me that if a police officer can be convicted with a lesser penalty for an accidental killing**** that those who don’t have the benefits of wearing a badge should be judged similarly.

I really wish jury instructions for defendants who happen to be police officers or other government agents would include something I like to call the ‘average person’ test. Put simply, the jury would be asked to consider if the actions of the defendant would fit the definition of the charge if the individual was neither a cop nor government agent. If it’s a crime for an average person to act a certain way than surely the same action is a crime regardless of his or her chosen profession (no matter how difficult).

This case was about whether Johannes Mehserle’s actions met these definitions not whether BART Officer Mehserle’s actions met these definitions.

See the difference? It wasn’t a uniform that was on trial but a man. Nothing more, nothing less.

If the jury decided that Johannes Mehserle, the individual, committed involuntary manslaughter, then I would be much more inclined to agree with Balko.

But as long as the perception (which is reality, I believe) remains that the double standard exists for the badges and the badge-nots, there will be jurors who will deliberate accordingly whether or not their decisions are ‘right’ or ‘just.’

* These were the only two options available to the jury other than ‘not guilty’ in this case.

** Read the whole thing; he makes some very good points that I haven’t mentioned here.

*** I prefer to approach these cases logically rather than emotionally (as Balko has) and I realize emotions are not a good substitute for reason. That said, it’s sometimes difficult for me to divorce myself from emotion entirely as I read of the injustices of our criminal justice system on a very regular basis. This Libertarian does have a heart despite rumors of the contrary. (Though don’t misunderstand, I am not saying that those who disagree with me on this are heartless)

**** I’m not at all convinced that this was an accident.

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  • Michael O. Powell

    I’m not at all convinced that this was an accident, either, but there’s a whole bunch of stuff that adds on.

    I’m an East Bay resident. A friend of mine was on the Bart on New Year’s Day, when Oscar Grant was killed, and there were many other events. Criminals were running through the trains with guns. It was chaotic and insane, as the area is on holidays. I tend to keep it mum on New Year’s and July 4 for that reason.

    Despite the initial ruling of 4 years, another charge was added on. Mehserle is going to get 4-15 years in prison for this. He’s going to be in prison around criminals who will know exactly who he is. His life is not going to be easy.

    Last, all the notes about the case are accurate. From class/ethnic tensions to economic distress, all sorts of extraneous emotions were added on to this case. Those may have been a factor in Mehserle’s mind, who knows.

    I’m thinking the best thing that a journalist could honestly do is to find and interview Mehserle a year or two from now, when the story is no longer at front and center and he is serving a sentence. With nothing to lose at that point, honesty may bear itself.

  • nonh

    The reason the Blacks community receives Police harrssment, check point, suspecison, arrest, and violence due to:

    It takes two to dance.

    The Black community has a unreasonable high crimes against races other than Blacks. Many of these crimes never or hardly committed by other groups. These crimes require police to identify, arrest, and put to rest those who are danger to the general population.

    Imagine when you have 10% of the population commit more than 50% of the crimes in this country. The tax payers have to pay police time, resource, and risk their lives and money to locate these criminals. How would you feel if 50% of the other groups commit crimes against your people and your people hardly commit crimes on them?

    Well, not just Whites alone complaint Blacks are trouble in our society. The Hispanics, Arab, Indian, Native American, Asian, Pacific, and other Americans. Read the news, just acknowledge it. You people just need to behave, take care of your problem, povety, disease, crimes, and blames. Don’t just point finger and start think how to contribute to this society than taking in such as welfare, corruption, disruption, society unrest, anti-social, anti-government, anti-police, and stop saying people discriminate Blacks. You create discriminations based on the behaviors, results, problems, and back impression or images created on society and other people’s mind.

    Did you know many of U.S.’s cities or certain part of cities are ran down by Blacks either w/ crimes, drugs, illegal, prosititution, pimp, and violent neighbors. Don’t you think people hate those? Don’t you think these people should have be legi and start their business, go to school, be scientists, doctors, lawyers, working professions but . . .

    Hey, look at the mirror and reflect yourself. Should Oscar Grant and his group not fighting and causing disburance on and off the train, the police didn’t have to come, nobody has to spend the money to go court, public resource to clean up the mess of the riots created mostly by Blacks, and the cop doesn’t have to go to jail or his career or life not messed up. Because of thugs, he is over as far as his career and on going suffering down the line. We are living in a modernzie society and Grant and his group/gang made the police stress and caused accident. Hey, who’s fault? The other groups are doing things like this and create this friction.

  • Gungho

    it’s funny how everyone in the nation, who doesn’t live in the real “dangerous” areas of town, assume that there is Stasi-like police presence in these horrible areas.

    real life, there is MUCH less police presence in the very bad areas of town. patrol officers who (are not crooked or looking for sex/drugs) would much rather ride around the better parts of town. mind you, the police you DO find in the bad parts of town are ready to rough you up.

  • Michael O. Powell

    nonh – If you’re going to be a bigot, I’d hope you’d at least learn to construct a grammatically coherent and linear sentence.

    Gungho – There’s alot of Bay Area dynamics in this case that make it different from ordinary police operations. It was a BART police officer, not an Oakland police officer.

  • Bill

    Even assuming that he meant to reach for his tazer, he meant to taze a person who was defenseless and on the ground. What he was trying to do was inflict pain. Pretend for a second he was not a cop. Say he beat up a guy for mouthing off, and then, after he already had the guy neutralized, he tazed him, and he died. Looks a lot like 2nd degree murder to me.

  • Michael O. Powell

    Nice. You should be a lawyer, Bill.

  • Omar Bradley

    nonh – no one here mentioned race but you, so you must have some racist axe to grind not related to the given debate. If Blacks are the root of all America’s evil, why do you lend their views more credence by playing the race card. Have you no valid points to make to the argument at hand, or are all your rhetorical stances based on promoting race baiting? Who, then, is more fixated with racial iniquity here, and isn’t there some inherent hypocracy in laying all our societal blame at the feet of one group in a debate purely devoid of racial content?

    As one commentator say here recently: “It takes two to dance…” so why are you whistling Dixie when we’re sitting down for serious discussion? Paranoid?

  • http://www.thelibertypapers.org/ Stephen Littau

    So far only Bill has attempted to answer the question: did the jury make the ‘right’ choice?

    Does anyone else have an answer?

    As to nonh’s comments, I think s/he should consider that perhaps there is a vicious cycle with the police and the black community. Certain cops have biasies about blacks and certain blacks have biasies about cops. When each does something to ‘confirm’ this bias, the cycle continues.

    So what’s the answer then? I say start looking at people as individuals instead of cops, blacks, or any other group.

  • http://www.thelibertypapers.org/ Stephen Littau

    In other words, we should judge by an individual’s actions rather than a uniform or color of his/her skin.

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