Justice for Johannes Mehserle

Tuesday, July 13th, 2010

That’s the subject of my crime column this week.

Digg it |  reddit |  del.icio.us |  Fark

38 Responses to “Justice for Johannes Mehserle”

  1. #1 |  Dave Krueger | 

    The Department of Justice is now looking into the possibility of trying Mehserle a second time under federal civil rights law.

    Of course, that doesn’t constitute double jeopardy, does it? No. The same thing happened to the cops who beat Rodney King. The jury verdict wasn’t correct politically, so they tried them again under a different jurisdiction and under a different pretense, never mind that it was for exactly the same act.

    When the Bill of Rights gets in the way of the angry mob, they just ignore it and no one gives it a second thought.

  2. #2 |  Highway | 

    When I first started reading, I thought you’d completely missed the plot, Radley, but your argumentation was very well done. You’re right, this guy shouldn’t be the target of pent up rage and overcompensation for other people not being served justice.

    But you’re also right that it’s a bit of a double standard when Maye and Frederick and countless others who aren’t cops get overcharged and overconvicted and oversentenced, with the excuse frequently given ‘to prove a point’ or ‘make an example of’.

    And it’s really tough to argue that they got Mehserle’s verdict and charges right when the next ‘cop killer’ is going to have the same kind of overcharging and ‘example making’ applied.

  3. #3 |  Nick T | 

    You’re wrong here Radley. Mehserle’s excuse is total bullshit and the jury only believe it out of seeking sympathy for a cop. If you don’t feel the weight difference or notice the color difference between your gun and your TASER then you are not a sentient creature.

    Your failure to distinguish between voluntary and involuntary manslaughter seems rather lazy, as your argument is probably a defense of a verdict findig the former but not the latter. People are almost universally always shaken up after killing someone whether they felt it was justified at the time or not. The reaction tells us literally nothing about the cop’s intent at the time he pulled the trigger. It tells us simply that he’s not a cold blooded murderer.

    He intended to pull his gun because no other explanaton makes sense, and he intended to pull the trigger because the trigger got pulled. Case closed.

  4. #4 |  Dave Krueger | 

    …a Los Angeles jury found Mehserle guilty of involuntary manslaughter. Because the jury had the option to convict Mehserle of second-degree murder…

    That’s another thing I hate about American justice. They give the jury a choice of crimes to pick from. If they’re going to accuse someone of a crime, they should be forced to prove the crime they are charging the guy with and not give the jury a fall-back position if they fall short of the mark. I’d be willing to bet that the lower level option is often chosen because the prosecution case is weak, but they don’t want to let the guy off.

    I think Radley makes perfect sense and his analysis shows his even-handed treatment of police behavior. The fact that he doesn’t let anger and emotion rule his commentary is precisely why he is credible and worth reading.

  5. #5 |  Dave Krueger | 

    I don’t think anyone can know for sure whether he knew he was pulling his gun instead or his taser, but the argument is plausible enough to justify a finding of manslaughter.

  6. #6 |  Andrew S. | 

    You would’ve [posted this earlier] [come to an angrier conclusion] [not posted anything] if Oscar Grant had been white!

    In all seriousness, I do disagree for once. I think the involuntary manslaughter conviction was less than the evidence says he deserved. That could be because I still don’t buy the “reaching for the taser” excuse.

    There’s been plenty of people in the past who, after committing a crime, immediately have a “What did I do?” reaction. the reaction after the fact, while some evidence of the then-current state of mind, does nothing to mitigate the crime itself (nor does it cause the prima facie cases for 2nd degree murder or voluntary manslaughter to not be met).

    The “double standard” argument in your article rings true — but that, to me, is evidence that he should be punished more harshly. While I don’t think he should be punished more severely than a non-officer in the same situation (though there’s an argument to be made that should be the case), and I agree there are overcharges galore, there was no overcharge here. A non-officer would have been (rightfully) convicted of 2nd degree murder or voluntary manslaugher in the same case. Mehserle deserves no less.

  7. #7 |  rapscallion | 

    Everyone seems to be ignoring the fact that with the gun enhancement, Mehserle could get up to 14 years, not just the 2-4 that would come simply from involuntary manslaughter.

  8. #8 |  flukebucket | 

    The fact that he was dragged before a jury at all shocks the shit out of me.

  9. #9 |  thefncrow | 

    #7, the gun enhancement actually makes the involuntary manslaughter verdict look even less plausible.

    One of three conditions had to be met for the gun enhancement:
    1) The suspect intentionally displays a firearm in a menacing manner.
    2) The suspect intentionally struck the victim with the firearm.
    3) The suspect intentionally fired the firearm.

    #2 is obviously not what they found. But if they found him guilty of the gun enhancement, the jury either believes he intentionally fired the gun, or that he intentionally pulled his gun, or he intentionally fired his gun. If the jury seriously believed either of those conclusions, then there’s no way to support their other finding of involuntary manslaughter.

  10. #10 |  Michael Chaney | 

    As I said elsewhere, I believe the proper charge is “voluntary manslaughter”. I don’t buy the gun/taser mixup story for several reasons. 1) Thousands of cops carry both without this problem 2) He didn’t come up with that story until he was in court (didn’t tell his buddies at the scene) 3) The two items are just too different, even if it was a crazy scene. The other issue is that Grant was face down on the concrete with another officer’s weight on him, so there was no reason to pull a taser, either.

    I keep reading about this being “an accident”. There are millions of gun owners in this country, me included, and oddly our guns don’t have these kinds of “accidents”.

    So, no, this wasn’t murder, but it is a stretch to call it “involuntary”.

  11. #11 |  Mattocracy | 

    I won’t be as angry as Nick T, but my thoughts after watching the video is this cop panicked and grabbed his gun. Either knowingly or by instinct, he shot a man. Immediately after the fact, he realized what he had done in the heat of the moment. Of course, that’s my interpretation of the video.

    Therefore, I don’t buy this argument that he thought it was a tazer. A pistol and a tazer feel very different, are held differently, and create a different site picture when aiming at a perp. And, from what I have seen with the cops in GA, tazers are on the other side of your belt from your gun so you don’t inadvertently grab the wrong weapon. But maybe that isn’t the case in every jurisdiction.

    I think this guy lost his cool and killed someone. As a result, I’m sure he feels absolutely terrible for what he did. This is a colossal fuck up. I don’t think he is vicious or psychotic. He isn’t the first nor will he be the last person to do something like this while in law enforcement. This is why cops need to stop seeing their role a soldiers in a war on crime. Maybe if that mentality wasn’t so prevalent, this cop would have had a calmer head that day.

  12. #12 |  Dave W. | 

    The analysis is flawed. If Mehserle really had mixed up the gun and taser, then he would have said so on the platform, and also said this to investigators.

    Instead he told at least one person (maybe more) that he thought Mehserle had a gun.

    Whether or not the jury is legally entitled to consider those facts, we are. The taser story is a cooked up lie. If it were true it would have been disclosed earlier (to save Mehserle from a murder trial). If it were the truth, then the informal statements Mehserle made (that is, statements not made to investigators) would have indicated this alleged mix up.

    Mehserle shook his head and said “oh shit” because he didn’t realize cameras were there until the lack of contagious firing by Tony and and his lover, Marysol, tipped him off that something was wrong.

    His mistake was not killing Grant, but rather failing to realize about the (non-BART-controlled) cameras.

    Also, when Pirone made the racist slur, Mehserle responded by saying, “yeah.” That is called evidence premediation.

    H8 2 say it, but bad show on this one, Mr. Balko.

  13. #13 |  rapscallion | 

    #9, I’ve never really bought the tazer story either, but I think there’s enough evidence for it that there’s reasonable doubt of other explanations.

    My point is simply that the outcome of the trial in terms of sentencing might be more in tune with our intuitions about what justice demands than one would guess from just being told the involuntary manslaughter verdict. After all, 14 years in jail is more than what some people get for even 2nd degree murder.

  14. #14 |  Nick T | 


    Please explain what makes this “not murder.”

  15. #15 |  Dante | 

    It comes to this:

    In the old days, a cop in a bad mood can kill me (or you or any non-cop) and then make stuff up and skate on the charges. Even video evidence was not enough to sway the scales of justice toward the innocent.

    Today, finally, a new day has dawned. I realize this guy (Mehserle) got off easy, but remember the glass is half full: He is going to jail. He will always be a felon. He will never be a cop again. He will be held accountable, however lightly, for his actions for the rest of his life.

    That IS progress, even if it is baby steps. In the old days, he’d be back on the job in two weeks, mocking the family members of the man he killed in an effort to provoke another killing.

  16. #16 |  thefncrow | 

    #9, but my point’s pretty simple. Without the gun enhancement, he is getting off far short of what justice demands. With the gun enhancement in place, the jury shows what a sham the involuntary manslaughter verdict is.

    It paints a picture of a jury that decided not to make decisions based on the facts in front of them. The jury didn’t find him guilty of involuntary manslaughter, they just thought he was guilty of “lesser manslaughter”, and involuntary manslaughter happened to fit the bill, even though the facts of the case as the jury saw it didn’t fit the definition of involuntary manslaughter.

    You say that the sentence enhancement puts this more in line with what justice demands. I say that the sentence enhancement exposes the sham that was the jury verdict and proves that this jury had no interest in justice.

  17. #17 |  ktc2 | 

    As someone who had held, aimed and fired both a taser and a handgun I absolutely do not buy the excuse of mixing them up. Try it sometime. It’s not even a reasonable excuse and if it weren’t a cop on trial the prosecutors would have made that plain as day to the jury.

  18. #18 |  thefncrow | 

    Sorry, I’m off my game today. First the error listing intentionally firing the weapon as two different things in my first post, then in my second, I referred to #9 instead of #13, which should have been obvious because #9 is me.

  19. #19 |  EH | 

    I’d be curious to know if the prosecution ever had the jury hold the two objects themselves.

  20. #20 |  CTD | 

    I’m pretty gobsmacked that you’re buying the “Dude, where’s my taser?” defense, Radley.

    There is no need to play armchair svenghali with regards to what was going on in his head when you can just watch multiple videos of the incident. And what I saw was a man un-holstering his weapon, taking aim, and shooting an unarmed man in the back. As #11 said, he might have panicked and immediately regretted shooting that poor guy, but shoot him he did. To pretend that he didn’t intend to shoot him when he pulled the trigger is just absurd. It’s simply beyond comprehension that one could believably confuse a loaded semi-auto pistol with a taser.

  21. #21 |  EH | 

    What’s the significance of titling this post “Justice for Johannes Mehserle?” Why isn’t it justice for Oscar Grant (‘s survivors)?

  22. #22 |  DPirate | 

    Justice? His only mistake was in getting caught. You are telling me that he would have been justified in tasing the man as one of three police officers who had full control of him, one of whom had his knee on the guy’s neck, and who is for all intents cooperating?

    Justice my ass. As EH says above, your title belies your argument. I would like to read an article you write with Oscar Grant’s expectation of justice as it’s point. Oscar Grant is dead, you know.

  23. #23 |  Helmut O' Hooligan | 

    Another issue w/ the “tried to grab my taser” excuse is that you generally use a cross draw motion to remove a taser from your belt. The officers I see have always had their tasers positioned horizontally on their belts. This of course differs from the vertical draw used to remove a pistol from a holster. I never bought this excuse, and I think Mehserle’s legal team came up with it after outsiders proposed this theory.

    No, I don’t think former officer Mehserle intentionally shot Grant in the back. I do think he overreacted and did mean to pull his service weapon to intimidate Grant and/or other bystanders. He felt like he couldn’t control the situation without drawing down, and that is a problem. But the biggest problem is that in doing so, he killed Oscar Grant. Terrible things can happen when you draw your weapon, so don’t do it on a whim, and don’t do it just to scare people. If all you bring to the job is your taser, gun, baton, etc., then you should not be a police officer.

  24. #24 |  Gary | 

    I think Radley’s got this 100% correct. Maybe the taser story is complete crap or maybe it’s not, but I do find it at least plausible and in this case probably the most plausible of the alternatives.

    Several commenters have stated that you can’t possibly mistake a gun for a taser, and I’m sure that they are correct in the vast majority of cases. The question, however, isn’t whether a calm and collected person would mistake them, it’s whether a poorly trained and freaking out person could mistake them. When you’re freaking out, you’re not thinking like you normally would (which is why proper training is so important).

    I, personally, am a bit scatter brained, particularly when I’ve got my mind focused on something. If I’m occupied in thought, I’ll grab a comb instead of a toothbrush and not realize it until it’s almost to my mouth. I’ll try to cut my steak with a spoon. I’ll make various mixups of everyday objects that I’m normally quite familiar with simply because my brain is off somewhere else.

    So given that, I can see how it is *possible* for a poorly trained officer who is freaking out to make this mistake.

    Remember that in a large sample space, unlikely events are likely to occur somewhere. They are very unlikely to occur to a given person, but they are likely to occur somewhere.

  25. #25 |  supercat | 

    //Of course, that doesn’t constitute double jeopardy, does it? No. The same thing happened to the cops who beat Rodney King. The jury verdict wasn’t correct politically, so they tried them again under a different jurisdiction and under a different pretense, never mind that it was for exactly the same act.//

    An interesting question in some cases (not sure it applies here) could occur if the government at one level brought the case and then deliberately threw it. If the government deliberately threw the case, the person would never really have been in jeopardy. Further, if the accused illegitimately pressured the prosecutor to be less than zealous in bringing the case, the “dirty hands” doctrine might preclude a double-jeopardy claim even if it couldn’t be proven that the prosecutor threw the case (i.e. if the defendant’s own actions would inspire a belief that the prosecution wasn’t trying to win, the defendant can’t complain about the consequences of such belief).

    One solution to such issues might be to have the state and federal government present their cases simultaneously. That way, if one failed to ask necessary questions, the other could correct the omission.

  26. #26 |  PW | 

    My main problem with the Mehserle verdict is its juxtaposition along side another manslaughter conviction, Ryan Frederick.

    Frederick mistook a cop raiding his house for a burglar and got voluntary manslaughter with 10 years.

    Mehserle (allegedly) mistook his gun for his taser and got involuntary manslaughter with a likely 2-4 years, if I’m reading the reports correctly.

    It seems to me that what Mehserle did, even if by accident, was much worse than what Frederick did. Yet Frederick got the harsher sentence and the higher charge. In that sense it appears that Mehserle got lenience by virtue of being a cop.

  27. #27 |  BamBam | 

    It was excessive force to draw any weapon on a person that is restrained and laying on the ground on their belly. 3 grown men standing around a person laying on his belly can be dealt with physically.

  28. #28 |  Angie | 

    I completely agree with the jury on this one. And I posted this before here, but this isnt’ the first time a cop has claimed to mistake a gun for a taser and killed someone. Only in this case it was caught on video and it happened to be a white cop / black victim which is just reason enough in Oakland to cause a commotion.


    Both of these cops should pay for their horrible mistakes, but that doesn’t make it murder or even voluntary manslaughter. And that doesn’t make it racial where Grant is concerned.

  29. #29 |  Reginod | 

    I think you are wrong on this one. The law did not require the jury to find as it did.

    There are (at least) four possibilities here: The facts were such that 1) only a finding that Mr. Mehserle was guilty of murder in the second would be just, 2) only a finding that Mr. Mehserle was guilty of involuntary manslaughter would be just, 3) a finding that Mr. Mehserle was either guilty of murder in the second or involuntary manslaughter would be just, or 4) only a finding that Mr. Mehserle was not guilty would be just.

    As I read your article you are arguing for the second option. That it would have been unjust to find Mr. Mesherle guilty of murder in the second.

    In making this argument you address the fact that murder requires malice, but then appear to direct your attention only to express malice. The California code allows for a finding of implied malice “when the circumstances attending the killing show an abandoned and malignant heart”. So, for example, a person who kills another while driving drunk in California can be found guilty of murder because driving drunk allows the jury to find that there is an “abandoned and malignant heart”.

    I would argue that a man who pulls out a weapon, gun or Taser (not knowing with certainty which he has grabbed), and fires it into the back of a man lying prone (and possibly restrained) on the ground has shown exactly the sort of indifference to human life that a drunk driver does. Such a person doesn’t know with certainty that death will result, it probably won’t, but such a person does not show the kind of concern for the lives of others that the law requires.

    This is not to say that I think the jury had to find Mr. Mesherle guilty of murder (certainly, if they believed that he was not restrained and actively resisting and that Tasers are not inherently dangerous, a finding of involuntary manslaughter could be justified). But it is to say that the jury could have reasonably, and within the bounds of established state law, found Mr. Mesherle guilty of that crime.

  30. #30 |  EH | 

    Helmut O’ Hooligan :
    I do think he overreacted and did mean to pull his service weapon to intimidate Grant and/or other bystanders.

    Brandishing a weapon for intimidation that winds up killing someone has gotten many non-cops convicted of murder.

  31. #31 |  Edmund Dantes | 

    In making this argument you address the fact that murder requires malice, but then appear to direct your attention only to express malice. The California code allows for a finding of implied malice “when the circumstances attending the killing show an abandoned and malignant heart”. So, for example, a person who kills another while driving drunk in California can be found guilty of murder because driving drunk allows the jury to find that there is an “abandoned and malignant heart”.

    We have a winner. If you believe the Taser excuse, he pulled the weapon and fired it with the intent to torture and induce pain. Now as a result of his desire to torture and induce pain, he caused someone else’s death. In almost every jurisdiction and every instance not involving a cop, this gets you voluntary manslaughter as the base charge.

  32. #32 |  Deoxy | 

    Sadly, on the whole, I have to agree with #15 – even if he got off noticeably lighter than a non-cop almost certainly would have, he IS going to jail, he will NEVER be a cop again. This is progress.

    From a purely utilitarian point of view, this is a good case for Balko to defend. If you are ALWAYS against the cop, then it becomes harder and harder for others to believe that your guiding principle isn’t simply “cops bad”. Not sure I agree with his analysis (the gun enhancement issue in particular is problematic), but it’s probably a good strategic position for him to hold.

  33. #33 |  Charlie O | 

    I have to agree with Mr. Chaney. I thin VOLUNTARY manslaughter would have been a more appropriate finding. I guess my biggest beef with this whole thing is that if any one of us (non LEO) would have committed a similar act, there would most certainly have been a piling on of charges and more severe penalties. I tired of cops getting free passes “under the color of law.” I’m curious to see how the Baltimore case proceeds. That cop was indicted for first degree murder yesterday.

  34. #34 |  DPirate | 

    Yeah, screw justice and dismiss one for the state in the interests of appearing fair-minded? Come on. It’s either righteous or not; there is no “Oh well, I’ll be more righteous later on”.

  35. #35 |  Nick T | 


    There definitely would have been a piling on of charges but the charges would have been justified short of capital murder. The bottom line is that I believe commentators like our dear Radley would probably not have quibbled with a private citizen, who shot an unarmed man in the back while his friends held the man on the ground (struggling or not), being prosecuted or convicted of 2nd degree murder, because it would seem justified.

    That is to say no one would even think in their brains, much less opine that we were witnessing a case of “over-charging” or “run-away prosecutors/juries.” Based on that theory (I could be wrong) I’m dissappointed that Radley has defended this verdict.

  36. #36 |  Boyd Durkin | 

    I’m now off to search for a similar case, but involving a non-cop as the shooter. I’ll try to find one where the prosecutor didn’t try to throw the book at the shooter to guarantee at least 15 years.

    Even better, I’ll try to find a case where someone mistakenly killed a cop and got 2-4 years.

    Wish me luck.

  37. #37 |  ALowe | 

    I posted this on another blog. I’m surprised more haven’t come to this conclusion:

    “Even if he HAD mistaken the gun for a Taser, what difference does it make? Are some deadly weapons somehow more acceptable to fire at restrained, unarmed men than others? Tasers kill, they just aren’t as good at killing as guns (in most circumstances – if I had a heart condition, I might take my chances with a bullet). If I killed a man with a 12 gauge slug, could I get off if I thought I was just shooting him with a load of birdshot from a 28 gauge?”

  38. #38 |  Boyd Durkin | 

    It depends. Are you a cop?