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.