Alameda County prosecutors say in court papers that former BART police Officer Johannes Mehserle shouldn’t be freed on bail because it’s unlikely he will win an appeal of his involuntary manslaughter conviction for fatally shooting unarmed passenger Oscar Grant III.
Mehserle, 28, will return to the courtroom of Los Angeles County Superior Court Judge Robert Perry on Friday for a hearing at which he will ask Perry to release him while he appeals his conviction and his two-year state prison sentence.
But prosecutors David Stein and Micheal O’Connor said in a brief filed late last week that “a defendant convicted of a felony has no absolute right to bail on appeal” and they believe Mehserle has failed to raise “a substantial legal issue” that would indicate he has a reasonable chance of winning his appeal.
Mehserle’s trial was moved to Los Angeles because of concerns about whether he could get a fair trial in Alameda County due to the extensive coverage the shooting has received in the Bay Area.
Prosecutors sought to have Mehserle convicted of second-degree murder for killing Grant, a 22-year-old Hayward man, at the Fruitvale BART station in Oakland shortly after 2 a.m. on Jan. 1, 2009. The shooting occurred when Mehserle and other officers responded to reports that there had been a fight on a train.
But in a verdict July 8 that sparked a large protest in downtown Oakland, jurors only convicted Mehserle of the lesser charge of involuntary manslaughter.
Jurors also found that Mehserle had personally used a gun, but Perry dismissed that finding when he sentenced him Nov. 5, saying it was unreasonable to conclude that Mehserle intentionally used his gun.
Mehserle could have faced up to 14 years in prison if his gun conviction had remained intact but Perry only sentenced him to two years, a move that set off another big protest in Oakland.
Mehserle admitted during his trial that he shot and killed Grant but said had meant to use his Taser stun gun and fired his gun by mistake during chaotic conditions.
Mehserle’s lawyer, Michael Rains, said in his bail motion that a trial judge “cannot demand that he or she be satisfied that error was committed to grant release pending appeal.”
Instead, Rains said a defendant only needs to show that he will raise “legally substantial issues” in his appeal.
The defense lawyer said he believes he raised serious issues in a motion for a new trial for Mehserle that alleged that Perry made 10 errors in instructing jurors, prosecutors made errors in presenting evidence and there’s new evidence that Mehserle neither intended to shoot his gun nor acted with criminal evidence.
But Stein and O’Connor said Perry rejected many of those issues when he dismissed the motion for a new trial Nov. 5 just before he sentenced Mehserle.
The prosecutors said “the defense arguments have little prospect of success on appeal.”
Rains said in a recent interview that “there’s no good reason Mehserle should stay in custody during his appeal,” a process that he said could take 18 months or longer.
Mehserle “wants to be reunited with his family for Christmas,” Rains said.
He also said Mehserle will be eligible for parole in about six months and “courts are inclined to grant bail” in cases such as Mehserle’s in which convicted felons face only short prison sentences.
The defense lawyer said he doesn’t think Mehserle is a flight risk because he made all of his court appearances and never fled while he was free on $3 million bail before he was convicted.
Rains said he thinks a bail of less than $100,000 “would be reasonable” for Mehserle while he appeals.
Mehserle grew up in Napa and Rains said “Northern California is where he wants to be” if the thinks he and his family can be safe in the region.
Rains said he and Mehserle both received threats throughout Mehserle’s trial and “the anger has never subsided.”
Jeff Shuttleworth, Bay City News
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