California v. Mehserle: Trial of Oscar Grant's murderer

By Thandisizwe Chimurenga
Special to

The jury in the People of the State of California v. Johannes Mehserle will be whittled down to 18 people this week.

The process of voir dire is scheduled to conclude Wednesday June 9 by choosing 12 jurors and 6 alternates. Those individuals will hear opening arguments in the historic case the following day, June 10.

The case is the first time in California history that a law enforcement officer will be tried for murder committed in a line of duty shooting.

Last week, approximately 200 prospective jurors reported for duty at the Clara Shortridge Fritz Criminal Justice Center. They were informed by Judge Robert Perry of the need to ensure “a fair trial for both sides … without bias, sympathy, emotion or prejudice,” said Perry.

About half of the prospective jurors were excused primarily due to financial hardship. Many of those also cited their own biases as cause for bring excluded, stating they had already formed an opinion about the case.

One woman said her reason for being biased was because she had “a problem with people with guns and a little bit (with) authority.”

The woman’s bias became more pronounced as she told the court that the defendant looked like “a jarhead,” and that she was tired of all these “brown babies” being killed.

Some others said their bias was due to having friends or family members in law enforcement. One young man said he that he could not “separate what happens to cops when they go to jail.”

“You wouldn’t vote ‘not guilty’ if you thought he was guilty, would you?” Perry asked. The man answered no but he was also excused from service.

David Stein, representing the Alameda County District Attorney, Michael Rains, attorney for Mehserle and Perry will query the remaining potential jurors based on their answers to the 15-page questionnaire that was distributed last week.

Both the prosecution and the defense will have a total of 52 peremptory challenges that may be used to strike prospective jurors from the pool.

The number of African-Americans in the jury pool is very small but there is a very large representation of Latinos.

Burris Comes Under Gag Order

During pretrial hearings and through jury selection Judge Robert Perry has stressed his intent to have the case judged on the facts presented in court. “We’re going to go through a lot of trouble to have the jurors judge this case on its merits,” he said. So as not to have what he termed a “side show atmosphere” in the trial, Perry ruled on June 1 that John Burris, attorney for the family of Grant, will have a gag order extended to him.

Rains had tried unsuccessfully at a January preliminary hearing to have the gag order, first imposed on the prosecution and the defense by Alameda County Superior Court Judge Morris Jacobson last year, extended to Burris and the attorneys for BART in the civil trial.

Although Perry did not extend the order at that time, he reversed himself last week, because he said he had not been aware that Burris was the attorney for about five young men who are scheduled to be called as witnesses in the case.

Burris’ attorney, Carl Douglas of Beverly Hills urged the court “against the rare act” of extending the gag order so that Burris could remain “a zealous advocate for his clients.”

Attorney James Simmons says he is not surprised that the judge ruled Burris should come under the gag order. “It does not appear to be an abuse of the judge’s discretion,” said the Los Angeles-based criminal defense attorney. “His clients are involved in this trial; if they were not witnesses, there would be no justification for a gag order.”

Burris will be allowed to be present in the courtroom and observe the trial, but both he and the attorneys for BART in the civil trial are now barred from speaking with media.

Expert Video Testimony to Be Allowed

Judge Perry also ruled last week that Michael Schott, a forensic video analyst, could testify as an expert witness for the defense.

During a May 7 pre-trial hearing Perry said he was concerned that Schott’s testimony would include declarative statements and cross the line into advocacy. Deputy D.A. Stein also registered his concern about Schott’s possible testimony. “You can’t see it here, but let me tell you what is happening,” he cited as an example.

Schott, whose background includes being a crime scene photographer in the 1970s, took the stand last week and both Rains and Stein questioned him as to his proposed testimony.

The videos that have been entered into evidence for the trial include one from a BART surveillance camera at the Fruitvale Station and five from individuals who were present at the scene.

Some of the sample testimony that Schott gave included his interpretation of what BART officers were doing and what Oscar Grant and others were doing in the video.

At one point during his sample testimony, Schott testified that a video showed Oscar Grant kneeing or attempting to knee former officer Tony Pirone in the midsection, and another video showed Jackie Bryson attempting to strike former officer Mehserle.

Stein countered that Schott’s testimony was only his interpretation and Perry clarified this was the case.

Still, the testimony of Schott was a cause for alarm for Jack Bryson, Sr.

“What is it that Michael Rains and Judge Perry see that no one else sees in this video?” asked Bryson Sr. “If my son had tried to hit that cop, don’t you think he would have arrested him? He was never charged; he was detained six hours but he was never charged with anything.”

Bryson Sr. echoed the earlier words of Judge Perry. “This judge is supposed to be there to make sure that Oscar also gets a fair trial.”

The trial is expected to last through the month of June.

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