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Mehserle Defense Wants to Present Evidence of Oscar Grant's Bad Character in BART Shooting Trial
Created by Brian Shields on 6/1/2009 9:29:00 AM


OAKLAND (BCN) -- The lawyer for former BART police Officer Johannes Mehserle has  filed a motion asking a judge to reconsider two rulings that the lawyer says  interfere with Mehserle's right to defend himself against charges that he murdered Oscar Grant, a 22-year-old Hayward man who worked as a butcher at  an Oakland grocery store, at the Fruitvale station in Oakland about 2 a.m. on  New Year's Day after Mehserle and other officers responded to reports of a  fight on a BART train.

      Mehserle, who resigned the week after the incident, is in the  midst of a lengthy preliminary hearing during which Alameda County Superior  Court Judge C. Don Clay will determine if there's enough evidence to have him  ordered to stand trial on murder charges. The hearing has met for five days  over the past two weeks and will resume Wednesday.

      Attorney Michael Rains told Clay last week that he believes  Mehserle shouldn't be charged with murder because he didn't exhibit malice  during the incident.

      The defense lawyer previously said that Mehserle meant to use his  Taser on Grant and fired his gun by mistake. Rains also has said that Grant  was resisting arrest during the incident.

      In a supplemental motion filed last Wednesday, Rains said he  thinks Clay should take a second look at a ruling that barred him from  presenting evidence about Grant's criminal background as well as a ruling  that barred him from presenting evidence that Mehserle told a fellow officer  just before the shooting incident that he planned to use his Taser on Grant.

      Clay made his rulings last Tuesday.

      Rains said in his motion, "Both rulings amount to grave errors  under longstanding and never-questioned California authorities" and alleged  that they "substantially interfere with Mehserle's federal due process right  to defend against the murder charge."

      Clay ruled that Grant's criminal record, which includes two short  terms in state prison, isn't relevant to Mehserle's case because Mehserle  wasn't familiar with Grant's record.

      But Rains said in his motion that Mehserle should be allowed to  present circumstantial evidence, in the form of his record, that Grant is  "the sort of person or character" who would resist arrest, which is what the  defense claims was the case at the Fruitvale station.

      In a related offer of proof filed May 21, Rains said he wants to  call a San Leandro police officer to testify about an Oct. 15, 2006, incident  in that city in which the officer arrested Grant for carrying a loaded  firearm inside his left front pant poed, but Grant fled on foot and  ultimately was arrested by another officer who fired his Taser at Grant.

      Rains said that even after Grant was Tased he "continued to resist  efforts of the officers to handcuff him" and while running from police he  threw a loaded pistol, which was recovered by officers.

      In his supplemental motion, Rains also said Clay should reconsider  his ruling barring BART police Officer Anthony Pirone from testifying that  Mehserle "repeatedly ordered Grant to put his arms behind his back and stop  resisting" and said, "I'm going to Tase him, I'm going to Tase him."

      Clay ruled that Pirone's testimony about Mehserle's statements  would be inadmissible hearsay, but Rains said they should be admitted as  spontaneous statements made during a chaotic scene in which "he had no time  to contrive or misrepresent."

      Prosecutor David Stein said at the hearing last Tuesday that to be  admissible Mehserle's statements "must be made while he's under stress" and  he said there's no evidence that there was any excitement at the Fruitvale  station Jan. 1, even though Pirone andthe former officer did daily.

      Stein wasn't available to respond to Rains' motion because there's  a gag order barring the lawyers in the case from talking to the news media  and there's no record that Stein has filed a response to the motion.

      Pirone, who testified for about half an hour last week, will  resume his testimony when Mehserle's hearing resumes Wednesday.

 (Copyright 2009, Bay City News, All rights reserved.)

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  Comments

  10/22/2009 6:55:27 AM
Anonymous 


Where is the US Constitution?? 
Grant was resisting, and forensic analysis will show he was shot before hands ever showed as he resisted Mehserle. Now that the trial is getting out of town Rains will be more able to defend his client who's only stroke of luck this year getting the heck out of Oakland that wants to hang a white cop thinking this will square all past history
  6/2/2009 11:45:07 AM
charles 


judge clay ignores and suppresses evidence 
The judges in this case continue to bow to public pressure, ignore and suppress evidence against all logical reason while the proseution remains silent because they already know what the truth is and the judge is doing their bidding. Also the victim was not handcuffed, but resisting being handcuffed just before he was shot. thank you charles
  6/1/2009 4:40:55 PM
Michele Martinez 


Oscar Grant is Not On Trial, Mehserle Is 
Typical defense attorney desperate grasps to manipulate the system and put the victim on trial for his own murder. It is ridiculous that they want to portray Oscar Grant in such a way as to speculate that he would always react a certain way. If that is how our justice system is going to work, I am sure the prosecution can call numerous witnesses who can testify that Mehserle would have overreacted and pulled out his gun versus his taser and kill someone who was unarmed and already in custody with handcuffs and a knee in his back.
     
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