Former BART police Officer Johannes Mehserle will return to Los Angeles County Superior Court on Friday morning for a pretrial hearing in his case, in which he’s accused of murdering unarmed passenger Oscar Grant III on Jan. 1, 2009.
Los Angeles County Superior Court Judge Ronald Perry will hear arguments on two motions filed on Mehserle’s behalf by his lawyer, Michael Rains.
One motion seeks to have Mehserle’s bail lowered and the other seeks to have the Alameda County District Attorney’s Office removed from the case for allegedly conspiring to violate Mehserle’s Sixth Amendment right to counsel.
Mehserle, 28, who is free on $3 million bail, is charged in connection with the shooting death of Grant, a 22-year-old Hayward man, on the platform of the Fruitvale BART station in Oakland shortly after 2 a.m. on Jan. 1, 2009.
Mehserle, who resigned a week after the incident because he didn’t want to cooperate with BART’s internal investigation, and other officers were responding to reports that there was a fight on a train. Friends of Grant who were with him at the time have given depositions stating that Grant was one of the people involved in the fight.
Rains has admitted that Mehserle shot and killed Grant but claims that the shooting was accidental because Mehserle meant to use his Taser stun gun on Grant but fired his gun by mistake.
Alameda County Superior Court Judge Morris Jacobson ruled in October that Mehserle’s trial should be moved out of the county because the large amount of publicity the case has received jeopardized his chances of getting a fair trial locally.
Jacobson selected Los Angeles County as the new venue and California Supreme Court Chief Justice Ronald George chose Perry to preside over the case.
Although Rains filed his motions on Jan. 26, Perry has refused to make them public so far, just as Jacobson blocked Mehserle’s court file from the press and the public.
The motion to remove the Alameda County District Attorney’s Office from the case is expected to be similar to one that was denied by Alameda County Superior Court Judge C. Don Clay at the start of Mehserle’s preliminary hearing last May.
In that motion, Rains said the district attorney’s office should be disqualified because he believes it violated state and federal laws, State Bar ethics rules and the U.S. Constitution by trying to get Mehserle to talk to investigators without the knowledge and outside the presence of his attorney.
Rains said that on the night of Jan. 12, 2009, shortly after Mehserle was arrested, former District Attorney Tom Orloff, who retired last September, “hatched a conspiracy to violate Mehserle’s Sixth Amendment right to counsel” in “an unambiguous and deliberate violation of federal and state criminal law.”
He said the state’s penal code requires the disqualification of a prosecutor where the evidence shows that a conflict of interest exists that would render it unlikely that a defendant would receive a fair trial.
Rains said, “Mr. Orloff filed the first ever complaint for murder against a California police officer for a shooting in the course of duty” and alleged that Orloff acted under pressure from the community and local politicians.
In his motion, Rains said Mehserle initially was represented by Sacramento attorney Christopher Miller and Miller clearly told investigators at the outset that Mehserle would exercise his right not to talk about the case.
He said, “It is hard to imagine a clearer signal to the various police investigators who were involved in the inquiry that Mehserle had decided not to speak about the events of Jan. 1 – he walked away from his years of training and his long-standing goal of a law enforcement career rather than subject himself to interrogation regarding the Grant shooting.”
Rains said Mehserle went to the Zephyr Cove area of Lake Tahoe in Nevada after the incident because his life had been threatened but Miller, his attorney at the time, was in touch with authorities all along and was prepared to have Mehserle surrender once an arrest warrant was issued.
The defense lawyer said Mehserle could have surrendered in Oakland but Orloff insisted on arresting him in Nevada.
Rains, who became Mehserle’s attorney several weeks after the shooting, said two veteran Oakland police officers tried to interview Mehserle at the Douglass County Jail in Nevada just before midnight on Jan. 12, 2009, but Mehserle once again declined to give a statement.
He alleged that the timing of the officers’ visit was fishy because it occurred only minutes after Miller finished talking to Mehserle in his jail cell.
The hearing is scheduled to begin at 8:30 a.m. Friday in Department 104 at the Clara Shortridge Foltz Criminal Justice Center at 210 W. Temple St. in Los Angeles.