(07-01) 04:00 PDT Los Angeles - --
Jurors in the trial of former BART police Officer Johannes Mehserle will be given the option of convicting him of second-degree murder, voluntary manslaughter, involuntary manslaughter or nothing at all, a judge ruled Wednesday on the eve of closing arguments.
Legal experts called the ruling a victory for the prosecution. The defense had sought to rule out the manslaughter counts, but Judge Robert Perry said jurors - who are scheduled to hear closing arguments today - had enough evidence to consider them in connection with the shooting of unarmed train rider Oscar Grant.
"The defense wanted all or nothing, betting that the jury would not find him guilty of murder," said Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles. "This gives the jury a compromise position."
Perry also took first-degree murder off the table, against the wishes of the prosecution. The judge said he saw no evidence that Mehserle acted with premeditation when he killed Grant while trying to arrest him at Oakland's Fruitvale Station on Jan. 1, 2009, after a fight on a train.
Wide array of sentences
Second-degree murder is punishable by a sentence of 15 years to life in prison. Voluntary manslaughter carries a sentence of three to 11 years, and involuntary manslaughter carries a sentence of two to four years.
Mehserle could face an additional 25 years in prison if convicted of an enhancement that alleges he intentionally used a firearm, causing great bodily injury or death.
The judge made his rulings during a three-hour hearing in Los Angeles Superior Court that was thick with complex legal arguments. Both sides brought in specialists on jury instructions and constitutional law, and Perry wrestled with his choices, finally saying, "This has been a trip, folks. I want to get back to my garden-variety murder cases."
Taking the witness stand last week, Mehserle testified that he meant to shock Grant with a Taser while trying to handcuff him after a fight on a train, but accidentally drew and fired his pistol. His attorneys say such an act should be litigated in civil - not criminal - courts.
"We as a society have decided police officers are different," defense attorney Dylan Schaffer said during Wednesday's hearing. "We give them guns and we tell them to use those guns."
Perry broke in, saying, "When appropriate."
Crime either way?
Prosecutors called the Taser story a fabrication, but made it clear they saw a crime regardless of Mehserle's explanation for shooting Grant.
If he intentionally shot Grant, prosecutor Micheal O'Connor said, he committed murder or voluntary manslaughter.
If the shooting was an accident, O'Connor argued, Mehserle is guilty of involuntary manslaughter because of negligence and recklessness.
Perry's brief commentary on the facts of the case underscored the jury's difficult task when it begins deliberating late today or early Friday.
For instance, he referred to evidence that seems to support Mehserle's contention that he meant to fire his Taser, including that he looked shocked after pulling the trigger and immediately jammed the gun back into its holster.
But Perry added that the jury may interpret the reaction as "the realization that he just shot a man in the back in front of a bunch" of witnesses.
Many Bay Area police agencies were monitoring the trial Wednesday as they planned for possible protests after a verdict. Levenson said members of the public who were outraged by the videorecorded shooting needed to understand that, historically, juries do not find police officers guilty of murder for line-of-duty killings.
"A conviction on a manslaughter count would be a victory for the prosecution," she said. "I think the defense knows that, and that's why they were fighting those counts."
Possible options for jury
Judge Robert Perry said Wednesday that he will give jurors four options in Johannes Mehserle's trial: convict him of second-degree murder, voluntary manslaughter or involuntary manslaughter, or acquit him. For each of the three possible crimes, the judge said, jurors will be given two theories under which they can convict if they choose to.
Second-degree murder theories:
1) Mehserle unlawfully intended to kill Oscar Grant.
2) He intentionally committed an inherently dangerous act, while knowing it was dangerous and acting with conscious disregard for human life.
Voluntary manslaughter theories:
1) Mehserle killed Grant in the heat of passion.
2) He acted in "imperfect self-defense," based on an actual but unreasonable belief that he needed to use lethal force.
Involuntary manslaughter theories:
1) Mehserle committed a lawful act but with "criminal negligence."
2) He committed a crime - using excessive force on Grant by deciding to shock him with a Taser - that was not in itself potentially lethal, but became so because of the manner in which it was committed.
This article appeared on page A - 1 of the San Francisco Chronicle