Attorneys for former BART police Officer Johannes Mehserle said in a court filing today that Mehserle should only be placed on probation for his involuntary manslaughter conviction for the shooting death of an unarmed passenger, Oscar Grant III, in Oakland last year.
Attorney Michael Rains, who represents Mehserle, said in his sentencing memorandum that a probationary sentence would not leave Mehserle unpunished because “he has lost his career,” has now served more than four months in custody, and “stands convicted of a serious felony, a circumstance he will carry with him for the rest of his life.”
Mehserle, 28, resigned from BART a week after he fatally shot Grant, a 22-year-old Hayward man, on the platform of the Fruitvale station in Oakland shortly after 2 a.m. on Jan. 1, 2009.
Mehserle and other officers came to the station after BART police received reports that there had been a fight on a train.
Prosecutor David Stein said in his sentencing memorandum that in light of the jury’s verdict and the circumstances of the fatal shooting, “A prison commitment is the only just punishment.”
He said placing Mehserle on probation “would serve no purpose whatsoever” but didn’t recommend a specific term for Mehserle.
He just noted that Mehserle faces between two and four years in prison for his involuntary manslaughter conviction plus three to 10 years for using a gun.
Stein asked jurors to convict Mehserle of second-degree murder, but in their July 8 verdict jurors rejected that recommendation and only convicted him of the lesser charge of involuntary manslaughter.
Rains admitted during the trial, which was held in the courtroom of Los Angeles County Superior Court Judge Robert Perry, that Mehserle shot and killed Grant, but said he did so mistakenly because he meant to use his Taser stun gun but fired his gun instead.
Perry is scheduled to sentence Mehserle on Nov. 5.
Stein said he believed the evidence indicated that Mehserle shot
Grant on purpose.
“This case is about a law enforcement officer who abandoned all judgment and training and became part of a sweeping swell of officer aggression when he shot and killed an unarmed man,” he said in his memo.
The prosecutor said Mehserle’s “act of intentionally shooting Mr. Grant in the back culminated a police contact that was marked by the use of excessive force, racial slurs and the making of unlawful arrests.”
Mehserle is white and Grant was black.
But Rains said suggestions that the shooting resulted from racial animus on Mehserle’s part “has always been wrongheaded because it lacks even the slightest evidentiary support.”
The defense lawyer said Mehserle’s police career is “unsullied by any accusation, let along evidence of racism.”
“He made no racially offensive statements on the Fruitvale platform,” Rains said.
He said Mehserle should only be placed on probation because he has no prior criminal record, has no record of violence, and doesn’t represent a serious danger to society.
“The offense occurred under unusual circumstances that cannot possibly recur,” he said, because Mehserle will never again be in a position to use a Taser to arrest a suspect since he won’t work as a police officer again.
Jeff Shuttleworth, Bay City News