A judge today ruled in favor of former BART police Officer Johannes Mehserle in two key issues in his upcoming trial on charges that he murdered unarmed passenger Oscar Grant III at the Fruitvale station in Oakland last year.
Los Angeles County Superior Court Judge Ronald Perry said Mehserle’s defense lawyer can present evidence of an October 2006 incident in San Leandro in which Grant, who had three felony convictions, allegedly resisted being arrested and was shot with a Taser stun gun as officers tried to handcuff him during a traffic stop.
However, Perry refused to allow testimony that Grant, a 22-year-old Hayward man, had a gun during the incident and was on probation.
Perry, who was appointed to preside over Mehserle’s case after it was moved away from Alameda County, also denied a bid by prosecutor David Stein to introduce into evidence a breath alcohol test form signed by Mehserle that Stein alleges “constitutes an implied admission that the shooting was not accidental.”
Mehserle, 28, who is free on $3 million bail, is charged in connection with the shooting death of Grant on the platform of the Fruitvale BART station 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.
Mehserle’s lawyer, Michael Rains, has admitted Mehserle shot and killed Grant but claims that the shooting was accidental because the former officer meant to use his Taser stun gun on Grant but fired his gun by mistake.
In October, Alameda County Superior Court Judge Morris Jacobson ruled that Mehserle’s trial should be moved out of the county because the large amount of publicity the case has received jeopardized his chance of getting a fair trial locally.
In November, Jacobson selected Los Angeles County as the new venue and California Supreme Court Chief Justice Ronald George chose Perry to preside over the case.
Substance abuse tests are standard operating procedure after BART police officers are involved in shootings and Stein sought to introduce Mehserle’s breath alcohol test form.
According to Stein’s motion, Mehserle’s lawyer the night of the shooting, David Mastagni, objected to the words “post-accident” on the form and told BART police investigators, “This was not an accident. It was an intentional act.”
Mehserle eventually signed the form and submitted to the test.
Stein said, “The statements at issue here demonstrate that in the aftermath of the shooting (the) defendant effectively denied that the shooting was accidental.”
But in a reply brief Rains said, “The form lacks adequate foundation, is irrelevant, is inadmissible and non-probative.”
Rains said Mehserle’s signature on the form “simply acknowledges that he had been ordered to take the alcohol test” and “says nothing about the shooting.”
Rains said Stein’s argument is “farfetched” and he believes that “Mehserle made no statements or admissions on the form that are relevant to any issue in dispute in this trial.”
In a defeat for Rains, Perry denied his motion to allow police officers to serve on the jury.
But in another victory for Rains, Perry barred prosecutors from introducing evidence that former BART police Officers Anthony Pirone and Marysol Domenici, who were the first two officers to arrive after at the Fruitvale station after the fight was reported, were involved in a sexual relationship.
Both officers, who testified extensively at Mehserle’s preliminary hearing last year, were recently fired by BART. Pirone was fired for the way he detained Grant and his friends on the platform and Domenici was fired for the way she reported the incident, both in police reports and in her testimony at the preliminary hearing.
Pirone and Domenici are both appealing their dismissals.
In other rulings today, Perry said prosecutors can refer to Grant as a shooting victim but not a murder victim and said Mehserle can’t be called Officer Mehserle.
The judge also said spectators at the trial can’t wear supportive ribbons, buttons or T-shirts.
Jury selection is scheduled to begin on June 1 and opening statements are expected to begin on June 14, if not before, according to Los Angeles County Superior Court spokesman Allan Parachini.
Perry plans to have testimony five days a week and hopes to finish the trial by early July.