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Indybay Feature

Mehserle's Racist Change of Venue Motion Cites Indybay and Community Activists

by dave id
The day after the court denied Johannes Mehserle defense attorney Michael Rains' 995 motion to dismiss the murder case due to supposed judicial improprieties, Rains filed his long-expected motion for a change of venue (attached below). Mehserle and his defense team appear to be hoping for the murder trial to be moved out of Alameda County as their last best chance for him to avoid a conviction for the murder of Oscar Grant III on January 1st, 2009.
Mehserle's defense was repeatedly embarrassed during the unusually long preliminary hearing in late May and early June when BART officer after BART officer was called to testify by the defense only to be exposed as liars by video evidence and their own contradictory statements. In that regard, Mehserle's defense team clearly failed him at the preliminary hearing, and it is not expected that the actual trial will be incredibly different with the same officers testifying and the same video evidence presented (with some "expert" witnesses and smearing of Oscar Grant added in).

The defense's 995 motion for dismissal of the case due to supposed judicial misconduct during the preliminary hearing was thin at best and easily shot down by the court within a week of that September 4th hearing.

Now Rains has thrown down the gauntlet with the change of venue motion he filed with the court on September 11th. At this point his best shot at avoiding a conviction for Mehserle appears to be moving the trial to a less diverse county where the defense could more reliably count on a judge and/or jury acting on biases in favor of police and against people of color rather than the facts of the case which clearly call for a murder conviction for Mehserle. From reading the change of venue motion, it is obvious that Rains and his staff have been working on it for quite some time. It is extremely detailed. The motion itself is seventy-six pages in length, and staff in charge of records at the court house said it was accompanied by two boxes full of related Exhibits. Alameda County Superior Court Judge Morris Jacobson, scheduled to begin hearing the venue motion on October 2nd, has an arduous task on his hands to read the document in its entirety and to review the thousands of media reports listed in the motion, not to mention the numerous judicial case histories cited and any forthcoming opposition statements from the Alameda County District Attorney's office.

In the motion itself, Rains piles on a number of racial arguments that are insulting to the intelligence and integrity of the people of Oakland and Alameda County. He basically claims that African Americans in Oakland are so biased that they are incapable of fairly judging the case, so therefore the venue should be moved. Additionally, he argues that he would have to so thoroughly grill potential African American jurors for their bias that the defense would be accused of racism, so again the venue should be moved. Oakland has a long history of white police officers abusing and murdering black citizens, and somehow Mehserle's shooting an unarmed Oscar Grant in the back in Oakland is merely a coincidence, so the venue should be moved because the ongoing crimes of racist police create an unfair bias against Mehserle within the potential jury pool. Groups such as the Black Panthers, Uhuru House/African People's Socialist Party, and the Nation of Islam arose in Oakland to fight against such very real police brutality, so their unfair bias means the venue should be moved. Los Angeles police officers Laurence Powell, Stacey Koon, Timothy Wind, and Theodore Brisenio had their venue changed in the videotaped Rodney King beating case -- and we all know how great that turned out -- so the venue should be moved in this case even more so. African Americans make up only 13% of the population of Alameda County but because they as a demographic group are not capable of being impartial jurists, the trial should be moved. These are the racist and illogical arguments Rains makes in his change of venue motion.

Rains cites the Oscar Grant Rebellion that occurred in January as another reason for venue change, but he neglects to give proper weight to the fact that the reason for such heightened anger at the time was that Mehserle had not been arrested or even questioned by authorities immediately after the murder on January 1st and that he was later granted bail. While Mehserle continues to enjoy his personal freedom on bail, his arrest on January 13th largely diminished the size and vociferousness of later protests. Community activists have been adamant yet calm as they have pressed for justice in the courts and at BART since the initial outrage in January.

Rains claims that media coverage is one reason for supposed bias inhibiting a fair trial for Mehserle in Alameda County. He cites numerous corporate media reports and then devotes an entire section of the motion to community activists and independent media. He claims actions taken by CAPE (Citizens Against Police Executions), BAMN (By Any Means Necessary), No Justice No BART, the Town Halls for Justice for Oscar Grant, the Revolution Club, Uhuru House, and coverage on Indybay as reasons the venue should be moved. He accuses these groups of spreading disinformation about the case and unfairly amplifying political pressure to prosecute.

One such passage reads as follows:

18	Any argument that passions regarding the Grant shooting have died down was put
19 during an August 22, 2009, BART town hall meeting at which various speakers, including
16 religious and community leaders, referred to the Grant shooting as murder and called for
17 Mehserle's conviction. See  
18 	Days before the filing of this motion, during the weekend shutdown of the Bay Bridge
19 (and the concomitant increase in BART ridership), a local group committed to seeking
20 Mehserle's conviction and prosecution of other officers involved in the January 1st events took
21 the BART system to remind the public about the case. The group posted fliers throughout the
22 BART system picturing the BART police logo, with the words, "Police Murder. BART lies.
23 We die." (Exhibit 14) The flier also pictures an officer shooting a man who is clearly restrained
24 by the police. Members of the group spoke on BART trains throughout the system, making
25 various (and often patently false) factual claims about the evidence in the case. Videos of the
26 speeches, as well as an article describing the groups efforts to publicize the case, were posted
27 to the hybrid news/advocacy website  See [pg 50] 

Another similar passage continues:

4	Also in the wake of the Grant shooting, a series of websites began closely to cover the
5 case, which coverage amounts to a highly prejudicial marriage of advocacy and reporting.
6	So, for example, a site called describes its purpose this way: "We strive to
7 provide an information infrastructure for people and opinions who do not have access to the
8 airwaves, tools and resources of corporate media. This includes audio, video, photography,
9 internet distribution and any other communication medium. We support local, regional and
10 global struggles against exploitation and oppression. We function as a non-commercial, non-
11 corporate, anti-capitalist collective."
13 has provided regular coverage of the Grant shooting and its aftermath, with
14 a strong and not particularly concealed view that Grant was killed because he is black, that the
IS shooting is evidence of generalized police brutality against the black community, and that
16 Mehserle is guilty of murder. Indeed, the site always refers to the shooting as the "murder" of
17 Oscar Grant, a word not used by the Chronicle, Tribune, television stations and so forth. See
18; see also;
21	The activities of CAPE, BAMN,, and the rest of the groups named above
22 and described in Exhibit 13 amount to yet another political factor that, under Maine and Powell
23 requires a change of venue. These groups impacted and heightened the political impact of the
24 shooting and the massive media attention that followed in four key ways.
25	First, the groups acted as a catalyst for that publicity: they spread information or in
26 many cases disinformation about the case; they distributed the shooting video; they distributed
27 video of various other pro-Grant/anti-Mehserle activities including demonstrations, some of
28 which devolved into riots; they distributed interviews with pro-Grant/anti-Mehserle speakers, [pg 63]
1 and they distributed pro-Grant/anti-Mehserle propaganda including pictures, posters, bumper
2 stickers, tee shirts and so forth. [pg 64]

Presumably Rains goal here as much as anything is to scare Judge Jacobson, who will be hearing the venue motion, because why else would he include irrelevant things like Indybay's "Principles of Unity" if not to invoke scary words and phrases like "anti-capitalist" and "global struggles against exploitation and oppression." Likewise, how The Ruckus Society ended up in his list of evil venue-change community activist groups is unclear if not to raise the terrifying specter of direct action in the streets.

It's interesting to note that the corporate media coverage of the change of venue motion thus far has neglected to mention Indybay or any of these community activist groups (SF Chronicle, 9/12/09, Oakland Tribune, 9/14/09, San Jose Mercury News, 9/14/09). Rains whines yet again about the gag order imposed on him, but these corporate media outlets with massive audiences rarely report on the work of community groups fighting for justice, preferring instead to repeat without question the lies in Rains' filings, the spin of BART's PR lackeys, and the dishonest testimony of BART police. It is hoped that by purchasing and sharing the motion here on Indybay as a community service that others, unlike the corporate media, will peruse the full text of the motion and write further analyses of the tactics being employed in Mehserle's defense. [Please, credit Indybay with a link when your sourcing originates here.]

The Alameda District Attorney -- either long-time DA Tom Orloff or his newly appointed replacement Nancy O'Malley -- has yet to file a response to Johannes Mehserle's change of venue motion. The hearing is currently scheduled for October 2nd at the Alameda County Court House in Oakland.
§Mehserle's Change of Venue Notice, 9/11/09
by dave id
(2-page PDF)
(76-page PDF)

Note: File updated 10/3/09 with previously missing page 68 of motion.
§Mehserle's Change of Venue Exhibit List, 9/11/09
by dave id
(3-page PDF)
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