Jury Clears Former Bart Officer of Civil Rights Violations, Part I

MICHAEL L. RAINS
Principal
Rains Lucia Stern, PC

Although I am still exhausted from what I call the trial from hell, I am writing to report a tremendous verdict by a federal jury in San Francisco on July 1 relating to the fatal shooting of Oscar Grant III by our client, former BART Police Officer Johannes Mehserle.

Background of the Incident

On January 1, 2009, Oscar Grant III (Grant) and five of his friends were detained by BART Police Officer Tony Pirone on the platform of the Fruitvale BART station shortly after 2:00 a.m., as a result of their suspected involvement in a fight in the lead car of the BART train traveling from San Francisco to Fremont. Officer Mehserle and his partner, Officer Jon Woffinden, arrived on the Fruitvale BART platform at 2:08 a.m. to assist. At the time of Officer Mehserle’s arrival, Grant and his friends were visibly angry, and a number of other passengers on the platform (fueled no doubt by some of Grant’s friends who had not been detained) were yelling profanities and engaging in hostile behavior toward the police.

At Officer Pirone’s direction, Officer Mehserle watched Grant and the other detainees, who were seated near a wall, while Pirone checked with the train operator to determine the extent of the fight and the condition of any victims. After checking with the train operator, Officer Pirone returned to Officer Mehserle’s location and placed Grant and one of his friends, Jack Bryson Jr., under arrest for violating Penal Code Section 148. Bryson immediately stood up and angrily confronted Officer Mehserle by making a backhand swing at Officer Mehserle with his left hand. In response, Officer Mehserle pushed Bryson to the platform floor and told him he needed to cooperate or he would get tased. Officer Mehserle then immediately handcuffed Bryson while he was on his knees.

After that, Officer Mehserle moved to his right to handcuff Grant, who at the time was also on his knees. However, as soon as Officer Mehserle grabbed Grant’s right hand, Grant pulled his hand away and his body shot forward and down toward the platform floor. As Grant was moving toward the floor, he rotated his body and made contact with the floor on his back with Officer Mehserle straddling him. Officer Mehserle and Officer Pirone were able to turn Grant to his stomach to begin handcuffing him; however, Grant’s hands went underneath his body.

Officer Mehserle started to grab at Grant’s right hand and arm and was yelling at him to give up his hand. At one point, Grant’s hand started to come out from under his body as Officer Mehserle tugged on it. However, before Officer Mehserle could gain control of it, Grant’s hand went into his right front pocket where Grant appeared to be grasping for something. Officer Mehserle, concerned that Grant might have a weapon in his pocket, promptly announced that he was going to tase Grant. This announcement was overheard by both Officer Pirone and Grant’s friend Bryson. Officer Mehserle then began drawing what he believed was his Taser, stood up (to create distance so that the probes would spread and create neuromuscular incapacitation) and fired. Mehserle testified that when he did not see the probes imbedded in Grant’s back, he looked to his right hand to determine if the Taser had malfunctioned and saw his handgun. He testified he felt sick to his stomach and wanted to vomit. Some of Grant’s friends and other passengers who looked directly at Officer Mehserle immediately after the shooting observed him saying words to the effect of “Oh shit, oh shit.” Grant’s friends and other passengers observed Officer Mehserle quickly holstering his weapon (contrary to firearms training) and throwing his hands to his head. A number of people described Officer Mehserle as appearing to be in a state of shock.

The Criminal Case

Mehserle was initially charged with murder by the Alameda County District Attorney’s Office, and I substituted into the criminal cases as his attorney after charges had been filed. Due to the amount of pretrial publicity the case generated, as well as physical threats on the lives of Mehserle, me, my family and our staff, the trial of his criminal case was ultimately moved to Los Angeles. Although Mehserle was only tried on the single charge of murder, after four weeks of trial, the DA’s Office requested that the jury be instructed on the lesser-included offenses of voluntary and involuntary manslaughter, over my objection. The judge agreed to do so and, on July 7, 2010, the jury acquitted Mehserle of murder and voluntary manslaughter, but convicted him of involuntary manslaughter.

The Federal Civil Rights Actions

In the aftermath of the incident, Grant’s mother filed a civil suit against BART and Mehserle on behalf of Grant’s daughter and herself. At a later date, Grant’s father, Oscar Grant Jr., whom his mother had divorced in 1996 and who was incarcerated in California State Prison, Solano, for a 1985 murder, filed a separate action for the loss of companionship and society with his son. In addition, one of Grant’s friends on the platform, Johntue Caldwell, filed a separate action against BART Police Officer Marysol Domenici, alleging that Officer Domenici used excessive force against him and unreasonably detained him by forcing him onto a BART train car shortly after the shooting, just before the train doors closed, thereby preventing him from remaining on the platform so that he could be by the side of his dying friend. His lawsuit sought damages for the emotional distress of that experience.

Although BART had paid to settle the lawsuits brought by Grant’s mother and daughter, it had not been willing to offer much money to settle the lawsuits brought by Grant Jr. against Mehserle or Caldwell against Officer Domenici. LDF provided both Mehserle and Domenici extended civil coverage in these matters. Ultimately, BART agreed to pay my fees to continue to represent Mehserle in the defense of Grant Jr.’s action.

The civil case brought by Grant Jr. was consolidated with the civil case brought by Caldwell (who was later killed in an unrelated incident before the trial began, and whose interests were represented by his mother at trial).

In order to prevail and collect damages, Grant Jr. had to prove two different facts to the jury: 1) that Mehserle intended to harm Grant by acting maliciously, sadistically and intending to punish him or teach him a lesson when he shot and killed him, and 2) that Grant Jr. and his son had a “familial relationship” at the time of the shooting that involved deep attachments and commitments to one another, and that resulted in the sharing of a special community of thoughts, experiences, beliefs and the distinctively personal aspects of each other’s lives.

The RLS team consisted of attorney Steven Betz, veteran investigator Bob McFarlane and me. Steven’s excellent writing and research skills were invaluable in pretrial motion work. The investigation, analytical and computer work done by Bob was exceptional and unparalleled.
The trial lasted a little over three weeks. We were able to select an excellent jury, due to a selection system that we had developed during the federal prosecution of eight correctional officers at Corcoran State Prison, and used successfully in the Oakland Riders trials, Mehserle’s criminal trial, my partner Harry Stern’s defense of Richmond Police Officer Dedrick Riley, our colleague Michael Schwartz’s recent defense of Fullerton Police Officer Jay Cicinelli, as well as the majority of our firm’s other jury trial matters (many of which have been chronicled in these pages). The jury was composed of individuals who were smart, well-educated and analytical, and who demanded evidence and proof of the two different facts that Grant Jr. had to prove in order to prevail.

At the commencement of the trial, Judge Edward Chen gave both sides a combined total of 25 hours during which they would have to complete opening statements, direct and cross-examination of witnesses, and closing arguments. Judge Chen repeatedly warned Grant Jr.’s attorney that he needed to focus on issues as they related to Mehserle, and not to issues relating to Officer Pirone. Officer Pirone was not a defendant in this action, but the plaintiff’s counsel wanted to portray him as an overly aggressive and vile police officer who illegally detained Grant and his friends and used excessive force on Grant during the course of that detention. Because Grant Jr.’s lawyer wanted to focus the jury on Officer Pirone’s behavior, he wasted many hours calling witnesses whose testimony was irrelevant to proving the case against Mehserle.
The evidence presented on the two issues Grant Jr. had to prove came down to the following over the course of the three-week trial.

First issue: Did Oscar Grant Jr. have a “close familial relationship” with his son at the time of his son’s death?  The jury found that Grant Jr. failed to establish that he had a sufficient familial relationship with his son at the time of Grant’s death. The evidence indicated there was no close familial relationship whatsoever, and that Grant Jr. really knew nothing of a personal nature about his son prior to his death. This became clear when Grant Jr. testified. On direct examination, he claimed that he loved his son dearly and that his son’s mother used to bring him for “contact visits” every other weekend until 1998. Thereafter, he would talk to his son frequently by making telephone calls to his aunt, and having her “patch” the call to his son’s phone.

On cross-examination, it became evident that Grant Jr. had no familiarity with basic personal information about his son: not the junior high or high school he had attended, if he had played baseball during high school, girlfriends he had dated, if he had gone on vacations or to family reunions with his mother, what church he attended or if the church was an important part of his life. Grant Jr. had claimed on direct examination that he had talked to his son three days before his death and that when his son said he was going out with friends on New Year’s Eve, Grant Jr. told him: “If you’re going to drink, don’t drive that car.” On cross-examination, when I asked him the make and model of his son’s car, he had no idea.

In order to support his claim that he and his son had a “close familial relationship,” he produced one undated letter allegedly written by his son (1 1/4  pages in length) and one undated Father’s Day card allegedly signed by his son. When I questioned him about the letters, Grant Jr. insisted that he had actually received many letters and cards from his son, but had been forced by prison officials to get rid of them. I questioned him about the “numerous” letters he claimed to have written to his son and reminded him that apparently they had not meant enough for his son to save them, because they were never produced by him, his lawyer, or by Grant’s mother following Grant’s death. After Grant Jr. testified, and testified poorly at that, his lawyer made a questionable tactical decision to introduce the testimony of Grant’s mother, Wanda Johnson. Because Ms. Johnson would not be able to testify at trial due to a trip out of town, we had to hastily take a videotaped deposition of her in Oakland during one of the days the jury was not hearing testimony. That turned out to be a disaster for Grant Jr.

During Johnson’s deposition, she supplied all of the personal information regarding her son that his father had no knowledge of: junior high and high schools he had attended, sports activities he had been involved in, girlfriends he had dated, the car he had owned during the last year of his life (a 1964 Buick), numerous family reunions he had attended with his mother, the vacations to Disneyland he had gone on, and all kinds of other activities that his father had absolutely no knowledge of during his testimony. Grant Jr. testified that his son’s career goal was to be a baseball player. Johnson said that her son’s goal was to be a barber or a pastor. Although Grant Jr. had no knowledge of his son’s church-related activities, Johnson spent 15 minutes detailing his devotion to the church: weekly, if not daily, church activities included singing in the choir, being a junior deacon and attending church-related social activities. While  Grant Jr. did not even know the correct name of the mother of his son’s daughter (he called her Sophia), Johnson told the jury that her name was Sophina. Grant Jr. did not know the name of his son’s best friends in the last five years of his life, but Johnson named them and talked about the fact that Grant would see them almost every day.

Grant Jr. also admitted on cross-examination that he had not seen his son during the last seven years of his son’s life, partly, he conceded, because his son had also been convicted of felony offenses and placed on parole shortly after he had turned 18, and was not eligible to visit his father in prison unless his parole officer gave him permission. Although Grant Jr. claimed his son’s parole officer was trying to work on a visitation during 2008 before his son’s death, there were no records that his son had, in fact, ever made an application after turning 18 to visit the prison.

If that were not enough, we called as a witness the public information officer at CSP, Solano, who testified that Grant Jr. had a personal space of 6 cubic feet in which he could keep all cards and letters written by his relatives, and that prison officials do not require or even request that inmates destroy personal cards and letters. In fact, it is recommended that the prisoners retain cards and letters from relatives to read and reread for personal enjoyment.

 The public information officer also noted that the prison records of visitations to Oscar Grant Jr., once they were automated in 1993, showed that Johnson (contrary to her sworn deposition testimony) did not visit the plaintiff at all between 1993 and the end of 1997. She never entered prison grounds with a minor, meaning, of course, that Grant Jr.’s claim that she brought her son to see him every other weekend until 1998 was completely bogus.

More significantly, we introduced two applications to visit the prison signed by Johnson in 1986 and 1997, which were clearly distinctly different signatures. Although Grant Jr. himself had claimed that Johnson had not visited him in 1998 or thereafter “because we went through changes,” his visiting records, starting in late 1997, 1998 and 1999, showed over 80 visits by his ex-wife (without a minor). When I showed Johnson the 1997 visiting application during her videotaped deposition, she appeared dumbfounded and was clearly unable to explain the distinctively different appearance of that signature compared to the early signatures, which she readily identified as hers. All of this led to us pointing out to the jury in our closing argument that the 80-plus visits to Grant Jr. during 1998 and 1999 preceded his conviction for dealing narcotics inside the prison in April 1999. Although that issue may have been unrelated to the “familial relationship” with his son, it nevertheless provided the jury insight into the extent of dishonesty that both Grant Jr. and his ex-wife were willing to practice on the jury in order to convince them to award him money.

The jury saw through the plaintiff’s feeble case and found that Grant Jr. did not carry his burden in establishing his familial relationship with his son. With that finding, Grant Jr. could not succeed in his claim for damages; however, further establishing the weak nature of the plaintiff’s case, the jury also returned a verdict for the defense on the second issue: whether Mehserle acted with intent to harm Grant. We will discuss that verdict in Part II of this article in the next issue.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s criminal defense and legal defense of peace officers practice groups. Mike is one of California’s top trial attorneys, with over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigations. Mike’s practice focuses on criminal trial work in both state and federal courts. Mike also handles civil and labor-related actions, and has
served as both defense and plaintiff’s counsel in state and federal court employment cases.