Prosecutor: BART Cop Used 'Poor Judgement' In Shooting
Thursday, February 5, 2009 – updated: 7:02 pm PST February 5, 2009
OAKLAND, Calif. -- A prosecutor said in a court filing made public Thursday that former Bay Area Rapid Transit police officer Johannes Mehserle showed "poor professional judgment, emotional immaturity and a lack of impulse control" when he shot and killed Oscar Grant III early New Year's Day. In a motion opposing Mehserle's request that he be granted bail while he awaits trial on murder charges stemming from the highly publicized incident at the Fruitvale station in Oakland, Alameda County Deputy District Attorney John Creighton noted that Mehserle "was a police officer entrusted with the power to use deadly force in appropriate situations." Creighton said Mehserle, 27, who had worked for BART for about two years, was trained in the use of both lethal and non-lethal weapons. But the prosecutor said Mehserle's actions after the incident, including quitting his job and leaving the area, support his belief that Mehserle showed poor judgment. "His lack of maturity and judgment when faced with a perceived threat to his safety combined with his access to deadly weapons may pose a risk to public safety should he be released on bail," Creighton said. The fact that Mehserle could be confined to state prison for life if he's convicted of murder creates a strong incentive to flee, Creighton said. At a crowded bail hearing last Friday, Alameda County Superior Court Judge Morris Jacobson said Mehserle is eligible for bail but set it at $3 million. Mehserle is still in custody at the Santa Rita Jail in Dublin, according to sheriff's spokesman Sgt. J.D. Nelson. Mehserle's attorney, Michael Rains, said at the bail hearing last Friday that the reason Mehserle was in the Zephyr Cove area of Lake Tahoe, Nev., when he was arrested on Jan. 13 is that he frequently moved after he and his family have began receiving death threats. Mehserle was in constant contact with his attorney at the time and his attorney in turn was in contact with law enforcement officials, Rains said. Mehserle owns two Glock handguns, so Jacobson ordered him to surrender the guns and not possess any firearms, bullets, weapons or other dangerous weapons if he's released on bail, according to Rains. In his motion, which was filed on Jan. 29, Creighton said Mehserle and other BART police officers responded to the Fruitvale station about 2 a.m. on Jan. 1 because there was a report that "a fight was taking place onboard the train's leading car involving five African American males." Creighton said one of the men who was identified as a participant in the fight, Michael Greer, became combative when officer Tony Pirone tried to remove him from the train. The prosecutor said, "At this point Oscar Grant and some of the other detainees stood up and became verbally abusive toward Pirone and his partner," Marysol Demenici. Grant, a 22-year-old Hayward man who worked as a butcher at a grocery store, later attempted to stand up when Pirone told Mehserle that Grant and Greer were under arrest for resisting arrest, Creighton said. He said Grant resisted and Pirone and Mehserle forced him to the ground. According to Creighton, Pirone told investigators that Mehserle said he would use a Taser on Grant because he couldn't control Grant's arms and then Mehserle said, "His (Grant's) hands are going for his waistband." After Mehserle told Pirone to back away from Grant, Pirone heard a single gunshot as he stood up and "saw Mehserle's unholstered handgun and observed that Grant was lying face down on the platform with a single gunshot wound in the middle of his back," Creighton wrote. Pirone was "surprised" by Mehserle's act of drawing and firing his weapon, Creighton said. The prosecutor said Mehserle told Pirone several minutes later, "Tony, I thought he was going for a gun." But Creighton said Mehserle never said anything to Pirone about a gun during his attempt to gain control of Grant's hands and Grant was unarmed when he was shot. "Mehserle's suggestion that he may have discharged his firearm in the mistaken belief that he was deploying his Taser is disingenuous in light of his claim that he thought the victim (Grant) was 'going for a gun,'" Creighton said. The prosecutor said that if Mehserle thought that he and other officers were exposed to deadly force by Grant he "would not and should not have deployed a Taser" because he should have used a gun instead. Creighton added that the position of Mehserle's Taser "in relation to his duty weapon, combined with the different 'feel' and color of the two weapons makes it highly unlikely that he would have mistaken one for the other." At the bail hearing, Jacobson agreed with Creighton, saying he believes Mehserle's statements about what happened "seem to be inconsistent." Jacobson said that because he believes Mehserle hasn't been totally forthcoming about his actions he has "a lack of trust at promises that he will appear for future court hearings." Mehserle is scheduled to return to court on Tuesday for a hearing on a gag order that Jacobson imposed last Friday without making any findings. On March 23 Mehserle is scheduled to have a preliminary hearing aimed at determining if there's enough evidence to order him to stand trial.
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