Writings By J. Douglas Allen-Taylor On The Death And Aftermath Of The Young Hayward Father Shot And Killed On New Years Day, 2009 By An Officer Of The Bay Area Rapid Transit District

AN EAST BAY TRAGEDY

Johannes Mehserle and Oscar Grant III

While Granting $3 Million Bail, Judge Blasts Former BART Officer As A Danger To The Community

From the Berkeley Daily Planet
February 5 , 2009

While protesters and the family of Oscar Grant III reacted with anger and anguish to the announcement that former BART police officer Johannes Mehserle would be granted bail Friday afternoon, the most significant action taken at last week’s bail hearing may have been the words directed to the former officer by the Alameda County Superior Court judge in charge.

The 27 year old Mehserle, who quit the BART police force to avoid cooperating with a BART internal investigation, has been charged with murder in the New Years Day shooting death of the 22 year old father and Hayward resident Grant. On Friday, despite a somewhat tepid no-bail request from prosecutor John Creighton, Judge Morris Jacobson ruled that Mehserle could be released on $3 million bail.

Mehserle is being represented by high profile Bay Area attorney Michael Rains.

Meanwhile, Oakland civil rights attorney John Burris, who is representing the family of Oscar Grant in an unlawful death civil claim against BART, filed a second claim against the embattled transit agency this week. Burris is requesting $1.5 million on behalf of Nigel and Jackie Bryson, Michael Greer, Carlos Reyes, and Fernando "June" Anicete, who were five of the seven men taken out of the BART train at the Fruitvale platform on the night Grant was killed. Those five were all arrested at the scene but later released. A sixth man taken off the train was reportedly not arrested, and has not been identified.
Two of the claimants were the two young Latino men seen sitting next to Grant when he was shot dead by Mehserle in the widely-viewed cellphone video recordings of the shooting.

Burris' new claim alleges that BART police and personnel "are responsible for the illegal detention, false arrest, use of excessive force and intentional infliction of emotional distress" on the five claimants.
But in what may be an additional explosive revelation in what has already proved to be an explosive situation, Burris also released a letter sent this week to BART Police Chief Gary Gee in which he asked the chief to investigate a possible "non-professional" relationship with two of the BART officers who were on the Fruitvale platform on the night of Grant's death, saying that "the conduct of one or more of these officers before and after the shooting may have been influenced by this non-professional relationship."

In his letter, Burris did not provide the names of the two officers, but said he would do so "if asked" by the chief.

Meanwhile, following the Superior Court hearing last week, Grant’s mother, Wanda Johnson, left the courtroom immediately after the judge’s decision on Mehserle's bail flanked by grim-faced family members and with tears streaming down her face, shouting “That ain’t right! That ain’t right!” over and over.

Earlier, overflow crowds in the courthouse hallway just outside the seventh floor courtroom bail hearing chanted “I am Oscar Grant” so loud it could be heard inside the courtroom during the hearing.

The Oakland Tribune reported nine individuals were arrested in angry protest demonstrations in downtown Oakland in the hours following the bail hearing, with at least one Oakland Police Department squad car damaged by vandalism. The Oakland Police Department did not return telephone calls requesting information on the arrests.

But it was Jacobson’s words inside the courtroom, as the first judge to look into the details of the Grant shooting, that may have the greatest long-term effect on the legal aspects of this case.

With Mehserle standing in a red Santa Rita County Jail jumpsuit in the dock at the side of the courtroom flanked by Alameda County Sheriff’s deputies, Jacobson called the defendant a “danger to society” and a “flight risk,” with a “character flaw” and a “clear propensity for violence.” In addition, the judge said that the inconsistent statements reportedly made by Mehserle and listed in his attorney’s bail hearing brief “creates a level of mistrust about any promises [Mehserle] would make to return to this court” if the defendant were freed on bail.

Jacobson appeared particularly concerned about the widely varying reasons attributed to Mehserle in his bail brief for his reasons for shooting Grant.

In a statement included in the brief given by BART Officer Tony Pirone, “Pirone said he heard Mehserle say, ‘Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back.’ Then Mehserle said, ‘I’m going to taze him, I’m going to taze him. I can’t get his arms. He won’t give me his arms. His hands are going for his waistband.’”

But later in the brief, Pirone’s statement continues that “after the shooting, Pirone was standing away from the shooting location. Mehserle approached Pirone and said, ‘Tony, I thought he was going for a gun.’”

Pirone is the officer seen in the widely-viewed cellphone videos punching Grant in the head and then placing his knee on Grant’s head after the man was down on the pavement.

Mehserle himself has yet to give a statement to authorities about his actions in Grant’s death.
But Jacobson said that the two statements attributed to Mehserle by Pirone—that he thought Grant was going for a gun but that Mehserle intended to use his taser, not his own gun—“appear inconsistent” and an indication that Mehserle was “attempting to avoid consequences. He is adding to his story and changing his story.”

But even though he characterized Mehserle as a danger to the community, Jacobson said that under the California constitution, the former officer was entitled to bail. The judge ordered that Mehserle’s two personal weapons—a 40 and a 45 caliber Glock—be surrendered and that he not have in his possession or control any dangerous weapons while on bail. Despite the fact that the judge said he considered Mehserle a flight risk, Jacobson did not order that the officer surrender his passport.

Jacobson, who said he will not be handling the Mehserle case when it goes to trial, set a preliminary hearing for March 23.

Mehserle did not speak openly during the hour long bail session. He appeared somewhat shaken by the judge's remarks, however, dropping his eyes and swallowing several times as he listened. As he was escorted from the courtroom, he nodded slightly and appeared to mouth the words "I'm allright" to family members sitting in the front row. As of Monday evening, he had not posted bail, and remained in custody in Santa Rita.

Dereca Blackmon, co-founder of CAPE and one of the organizers of the two Grant protest rallies that have taken place since Grant’s death, said that while she was “disappointed that [Mehserle] received bail, it was extremely high bail, and we have to look at this as a victory.” Blackmon, who was in the courtroom during the bail hearing, said it appeared to be “a mismatch between the District Attorney’s office and a high-powered, high-priced lawyer [representing Mehserle]. The DA did not handle his case very well.”

And speaking at a press conference outside the courthouse following the bail hearing, attorney John Burris, who did not take part in the bail hearing proceedings, said that while he thought $3 million bail was a high amount, “it was our view and hope that it would be no bail. But since I knew [Mehserle] had a right to bail, I thought it should be at least $5 million.” Asked by a reporter if he thought a special prosecutor might be in order to handle the Mehserle prosecution, Burris said that “I don’t see that the prosecutor is not doing a good job, so far. I don’t see at the present time that an independent prosecutor would be better. I haven’t seen enough evidence to justify that.”

Meanwhile, representatives of the broad coalition formed in the Grant case—including the Committee Against Police Executions (CAPE) and several local ministers—have broadened their demands in the case to include the firing of BART Police Chief Gary Gee. Earlier last week, Burris’ office circulated a memo to BART police officers on BART stationary giving information as to how officers could put money in Mehserle’s jail account at Santa Rita County Jail. In an accompanying message, Burris called Gee’s conduct “unacceptable,” adding that "the Chief should be terminated. I can appreciate that Bart police officers and union members, out of friendship, may want to visit and or make financial contributions to Mehserle; however, it is unacceptable for the police chief, who ostensibly is investigating Mehserle and other officers, related to their conduct on the night that Oscar Grant was killed, to encourage officers to visit and make financial contributions to Mehserle.”

That call for Gee’s termination was taken up at the weekly Oscar Grant Town Hall meeting at Olivet Baptist Church in West Oakland, where Grant coalition members have been handing out information and plotting strategy. Local minister Dr. Harold Mayberry said that even while the Gee letter was being circulated to BART police officers, the BART police chief was assuring a meeting of coalition members last week that “there is no effort by BART to help Mehserle monetarily.”

Earlier, at Mehserle’s bail hearing, his attorney, Michael Rains, said that the officer’s legal defense is being paid for in part by the California Police Officers Association.

For their part, Oscar Grant's family has set up a trust fund for his young daughter, Tatiana, asking for donations to be sent to the Tatiana Grant Trust Fund, Account #3879027641, Wells Fargo Bank. A family representative said that donations can be made in that account number at any Wells Fargo Branch.

While Blackmon said that in the light of continuing events in the expanding Grant case, including the call by BART Board members Lynette Sweet and Tom Radulovich for the ouster of Gee and BART General Manager Dorothy Dugger—CAPE and other members of the Grant coalition will be “exploring the expansion of our demands.” At least one group regularly participating in the Olivet Grant Town Hall meetings and other parts of the Grant protests has already moved forward with one new demand. Outside the Alameda County Courthouse during Mehserle’s bail hearing, members of the more-militant Coalition to Defend Affirmative Action, Integration & Immigrant Rights And Fight for Equality By Any Means Necessary (BAMN) carried placards reading “Wanted. Tony Pirone For Racist Execution Of Oscar Grant.”