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by Peter Moskos

July 9, 2010

More on Mehserle

Motorcop has a great post on the conviction of Mehserle.

Reading the definitions of the charges he faced, there's no legal way Mehserle should have been convicted of a greater charge.

And you know, I don't hold Mehserle's strange conduct in the days after the shooting against him (mind you, I also don't hold his actions as a shining example of what to do). How should somebody react after making a horrible mistake and killing a person? I have no idea.

I don't know what I would do. I would think about my job, my life, and my freedom. And as a cop, I would also know that no good comes from talking without a lawyer. I don't say this to get sympathy for the guy, but it's more than an understatement to say it was a very tough time in his life. I think it's very safe to say, in hindsight, that Mehserle doesn't seem to perform at his best under stress and pressure.


Anonymous said...

As a California lawyer who graduated from a top ten law school in California, I think Motorcop's analysis is clearly wrong.

On the subject of intent, intent can be inferred from the fact that a gun was pulled out and aimed and the trigger was pulled. Not only can intent to kill be inferred from that, but that is considered gigantically strong evidence of intent to kill. It is practically insurmountable evidence of intent to kill where the DA is actually trying for a conviction. Motorcop, or anyone else who says there is no evidence of intent is flat wrong on the law. A murderer does not have to announce that he intends to kill -- generally they do not, and intent is proved by the simple fact that the person pulled a gun and shot. That is all that is required.

But, let's assume that Mehserle's assertion of intended Taser use is believed. Wearing two gunlike objects, where one is a gun, and the other is not a gun, and then pulling one off of one's belt and firing it is not simply negligent. Rather, it is reckless. Same way that Russian roulette is not simply negligent, but reckless. Under California law, proof of purpose to kill without premeditation, or implied malice based on proof of recklessness constitutes second degree murder. It was reckless not to check whether he was holding a gun or a Taser before firing.

Motorcop's post does not deal with the issue of "recklessness" at all in his discussion of the murder charge (fail on the CA Bar Exam, that). Recklessness comes up in his post only when he quotes a jury instruction on involuntary manslaughter. How Motorcop deals with this is by saying there is no recklessness because: (i) criminal negligence is difficult to prove; and (ii) BART didn't have a specific, written policy against shooting the gun when you meant to shoot the taser. As an analysis of recklesness, this is not just a fail, but an epic fail.

It is downright sad to see how poorly people grasp the law in situations involving on-duty police crimes. If what Mehserle did wasn't reckless (at least), then nothing is. What would have been not reckless would have been to wait a few more seconds while issuing clear verbal commands to Grant in an authoritative voice.

A year and a half after the fact, it is easy for Motorcop to say that Mehserle would never have purposely shot in front of all those cameras. Fact is, when Mehserle got his training, there were a lot fewer cameras (beyond those controlled by the police forces). He didn't care about the witnesses, and he didn't realize about the cameras until a few seconds too late.

Side notes:

1. Mehserle was wearing his Taser and gun on opposite sides of his belt buckle, although Motorcop lovingly failed to pen that.

2. A short time before the killing, Officer Pirone (the officer acting in concert with Mehserle) called Grant a punk *ss n*gg*r. Mehserle responded by saying, "yeah." There is your premeditation. Clearer even than in your average case.

3. I hope the non-lawyers understand that the DA was trying to make sure there was an acquittal on the serious charges with the specific way he tried the case, with the strategic decisions he made. Probably the most important thing he needed to do was to get in Mehserle's untrue statements about thinking Grant had a gun, and then make it clear that Mehserle understood that if he pulled a weapon out of his belt at random, then there was only a 50% chance that it would be a Taser.

A Cali Cop Who Also Went to Law School AND Passed the Cali Bar the First Time said...

"As a California lawyer who graduated from a top ten [sic] law school in California"

BFD. Plenty of lawyers graduate from top-ten law schools and can't pass the bar no matter how many times they try. Equally every top-ten law school has a group of folks in the bottom tenth percentile who barely graduate and work as bottom-feeder lawyers.

Too bad in all your heady top-ten learnin' you didn't learn much about what the ABA Canons of Professional Ethics has to say about proffering unsolicited legal opinions.

Cleanville Tziabatz said...

Using a little mental ju jitsu, the Simple Justice blog has a post arguing that we know that Grant didn't mix up weapons precisely be cause he was a policeman:


Dylan said...

Simple Justice is written by a defense lawyer. He's never been sworn as a police officer. He never walked a beat and is extremely biased in favor of criminals so whatever he has to say won't impress many cops. Since Oscar Grant was shot at least two other LEO's in California alone had fatal OIS where they confused tasers and their service weapon. Both of the officers in question were investigated but no criminal charges were filed and the cases were closed. They're both still on the job.

Cleanville Tziabatz said...

He is extremely biased against bogus murder charges. He is speaking against his bias, as a defense atty does any time she says, "yeah, that's murder all right."

I knew already about those other cases, and I would not be a bit surprised if Simple Justice does, too. If confronted with those cases, I think I know what his answer would be, and I think you do, too.

I am am not sure I agree with Simple Justice's analysis of police behavior, but it sounds at least as plausible to me as the things I have read by policemen about taser switcheroos since the taser theory first emerged.

My comments on the previous cases are this:

1. If it really happened before, then doesn't that make Mehserle's conduct even more reckless.

2. In those other cases, how long did it take the policewoman (or man) to admit she (or he) made a mistake?

Dylan said...

Cleanville Tziabatz you seem to be under the delusion that cops are not mortals or capable of making mistakes. They are human. Humans make mistakes. Human cops make mistakes sometimes. That's why some cops accidentally shoot themselves. Apparently you'd like to see them prosecuted for murder too. A cop accidentally shoots himself in the foot and he's up on an attempted murder beef in the neatly ordered world of Cleanville Tziabatz.

Cops admit they make mistakes all the time. Obviously you don't know any cops or you'd know that.

Mehserle made a tragic mistake and he will pay the price for that with a ruined career and bankruptcy. Many cops however believe that he did not commit a crime and I'm one of them. I would not be surprised if his conviction is overturned on appeal. I hope it is.

You the taxpayer get what you pay for. When you nickle and dime your police departments and whine about taxes, you lower the standards for cops you get. The BART shooting is the result. Mehserle is the kind of cop you get for boxing cops in, treating them like crap and paying substandard wages. You handcuff cops with stupid touchy feely rules and resources are wasted on alternate lifestyle awareness and equally moronic crap. There's no money left for basic training and equipment. You have cruisers with 400K miles and holes in the floor but you have to send cops to pride this and hug that and nothing is left for basic policing.

Walk a mile in a cop's shoes and see all the crap we face --- the insults, the spit, the hate. You think we have it easy. It's hell and it's getting worse every day. Most of the time we have people like you who give us a big fug you and a finger to thanks for it. The criminal lowlifes we can deal with, it's the insults, grief and bullshit from the people we're protecting that gets harder to swallow. I once had a sergeant who said if we handed out $100 bills people would still complain about the cops not handing out smaller bills they could use.

The BART platform was way out of control. People were disobeying the police including Oscar Grant. People were engaging in criminal activity including Oscar Grant. In chaos you will have mistakes happening. One of the contributors to that chaos was Oscar Grant. You set things in motion and mistakes happen. Oscar Grant paid the price for that.

No one ever said cops were infallible except for people like you. No matter how much cops do for you, you complain. You expect perfection. This is planet earth. Perfection is impossible, particularly when you pay your police force less every year and keep cutting our budgets.

PCM said...

if we handed out $100 bills people would still complain about the cops not handing out smaller bills they could use.

Ha. Good line!

That once kind of happened to me. There was customer dispute at the gas station on 324 post. I show up and there were two woman and two men. They said their car broke down on Orleans St., they bought a $5 phonecard, and it didn't work. They wanted their money back or a new phone card.

I explained that if that were the case, I thought they were right. And it wasn't fair. But I couldn't legally make the man pay. But I could ask the man for them because sometimes the uniform has magical powers to result such petty disputes.

Now before this, one of the women said, "Jap bitch should go back where he came from. He'll get his." This comment did not endear her to me. And he wasn't Japanese. Nor, best I could tell, a bitch.

But I digress.

I went in and the man explained that they could have used to card in the time they were gone, and he had never had a problem with one of these cards before. I said OK and broke the bad news to them.

They started fussing some more. They might have been telling the truth. Who knows? But I didn't like their attitude and told them as much.

I asked them how much it would cost to call Harford County. "A buck eighty," they said. Seemed high... but then it was a ghetto pay phone.

In the middle of all this, it hit me. $1.80! All this fuss for less than two bucks? Wow. I could so totally solve this situation. If not, I could at least put them in their place.

What the hell... I'd trade $1.80 for a good story any day!

"$1.80? All this over a buck eighty. I have $1.80. You can make your phone call!"

So I pulled out my money. I happened to have a lot of change. I counted out one dollar and eighty cents. I offered it to them. To make a phone call.

There was brief silence before one woman said, "We don't want your money! You're all the same."

After she went on for a bit I offered to lock her ass up. They walked away, cursing.

Under my scowl I was smiling on the inside. And I didn't even cost me a penny.

Cleanville Tziabatz said...

I don't expect perfection. But when a policeman whips out his gun and shoots a prone restrained man to death I expect serious punishment for that. It wasn't a mistake. It was a crime that he felt his brothers and sisters in blue would support. And they did support it until the videos messed them up.

Not all mistakes are created equal and not all mistakes are expected to elicit the same response. A mistake where someone shoots a gun when they meant to shoot a less lethal weapon is a particular kind of mistake where one would say it was a mistake as soon as it happened, if it is what really happened.

Anyway, I am sure the feds will be looking at the question of whether taser use was: (i) justified under the circumstances; or (ii) a form of torture under the circumstances. Thank goodness for double dipping. The state government is incapable of investigating and fairly trying its own agents.

Frankly, this should have been in federal hands from the git-go, as all suspected police crimes should be. Only way to avoid the conflict of interest that kills justice with its poison.

Jaguar said...

Here's an excellent overview from The Police Chief magazine about real-world cases involving taser/firearm mistakes in officer-involved shootings:


The Henry v. Purnell standard is particularly noteworthy to the case at hand, in light of the opinion shared by many police officers that Mehserle's training was inadequate and he therefore was not guilty of involuntary manslaughter based on the evidence presented at trial. Henry held that five factors should be considered in determining the reasonableness of the officer’s taser mixup mistake:

(1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant’s conduct heightened the officer’s sense of danger; and (5) whether the defendant’s conduct caused the officer to act with undue haste and inconsistently with that training.

Jaguar said...

Here is a news article about the Torres shooting mentioned in The Police Chief piece I linked:


Cleanville Tziabatz said...

Shorter Jaguar: Some podunk DA does a whitewash for the benefit of a bad policewoman and it is supposed to mean something.

All it means is that Mehserle's lawyers knew about that case before they decided what his defense would be.


Dave said...


Where is the proof for your claim about Marcie Noriega?

Cleanville Tziabatz said...

My claim about Marcie Noriega was that she was (is?) a "bad policewoman." If you can't see why I made that claim, then I can't help.

Were you referring to my claim that the DA did a whitewash with a predetermined conclusion? Because that wasn't a claim that Marcie Noriega meant to shoot (although she very well might have). That was a claim that her shooting was never properly charged and subject to resolution in a criminal court as it should have been.

Aaron said...

Cleanville Tziabatz are you actually this misinformed or are you just deliberately trolling here to feed your narcissism? If it's the former, here's a bulletin from a place called reality: criminal charges are not automatically filed whenever a cop shoots someone. The popo are protected by the 4th & 5th amendments (etc) just like everybody else.

Chuck said...

"All it means is that Mehserle's lawyers knew about that case before they decided what his defense would be."

And you know this how? Telepathy?

Cleanville Tziabatz said...

No, timing.

Chuck said...


Defense attorneys don't discuss trial strategy in the media pre-trial. So when something first appeared in the press is immaterial.

Unless you were told this by defense counsel, you don't know what you're talking about. We know they didn't discuss it with you because they are prohibited from doing so.

You have no idea of the timing involved in this case. So your speculation here is nothing more than nonsensical babble.

I think your mother wants you to clean your room now.

Cleanville Tziabatz said...

Defense attorneys don't discuss trial strategy in the media pre-trial.

Defense attorneys and their clients discuss whatever it is in their selfish interest to discuss any time it is in their selfish interests to discuss it.

You are correct that the fairy tale about meaning to draw the taser was a "trial strategy" -- that is exactly what it was, and it most certainly was floated pre-trial.

However, if were the truth, then it would have been revealed to investigators before charges were brought. Just like police self-defense claims are routinely made, and made quickly, in OIS cases.

Mehserle didn't want to tell his taser story to investigators prior to his arrest because he simply hadn't had it explained to him in the early stages.

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