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A Cursory Look at the Johannes Mehserle Trial - TWO
by Thandisizwe Chimurenga
Tuesday May 18th, 2010 10:58 PM
A brief look at various issues of the defense and the prosecution in the trial of Oscar Grant's killer
The May 7 hearing for Johannes Mehserle, the former transit cop who killed Oscar Grant on New Year’s Day of 2009, settled several key issues prior to the beginning of the trial scheduled for June 2010. The waters have been somewhat muddied, however, due to much of the media coverage surrounding this case, both before and after the May 7 hearing.

TWO: Oscar Grant’s “Criminal Past”

Mehserle’s defense attorney submitted to the court - as evidence of prior misconduct - an arrest report from October 15, 2006, in which Grant was charged with resisting arrest. The report states the facts leading up to and including Grant’s arrest on that date, and that the arresting officer used a Taser to subdue him. Rains submitted this report as evidence under section 352 of California’s Evidence Code. It is the only document that Rains sought to enter into evidence on this issue. 

Judge Robert Perry allowed into evidence certain portions of the report and denied others. Specifically, Perry believes that the issue of Grant’s resistance in this case should be heard by the jury, but that the other facts contained in the arrest report of October 15, 2006 are not relevant to what happened to Grant on January 1, 2009.

In other words, a portion of one arrest report from 2006 will be mentioned during the trial. No other arrest reports were submitted to the court by Michael Rains, Mehserle’s attorney.

Judge Perry additionally ruled that other facts related to Oscar Grant’s background/history were also not relevant and will not be allowed for discussion at the trial.

Media headlines of this portion of the May 7 hearing reported that “Grant’s Criminal Past” ( or that “Grant’s Criminal History” (, will be allowed at trial. 

While these are factually accurate, headlines stating that “Grant Resisted Arrest on Prior Occasion,” or, “Grant’s Arrest Report Allowed in Trial” would also be just as factually accurate. 

The difference between the two sets of examples may be that one conjures up images of a hardened, career criminal, while the other may pertain to an aspect of a person’s past.

Michael Rains stated in court that it was not his intention to cast aspersions on Mr. Grant; it would not be “appropriate” or “right,” however, Alameda County District Attorney David Stein stated that was exactly what Rains was doing and objected to the inclusion of the arrest report as evidence of a “character trait.” 

Stein’s argument was that this one incidence of resisting arrest was more likely evidence of a “habit” and not a character trait. Habit would be “How a person responds to a particular environment; it is not character evidence. 

Procedurally, Stein’s argument was that Grant’s alleged resistance should be classified under Section 1105 of the California Criminal Code:

“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”

Judge Perry stated more than once throughout the more-than-six-hour hearing that “the nature and quality of Oscar Grant’s resistance will be a central issue in this trial.” Elsewhere during the hearing, the judge specifically ruled that Mehserle’s defense could not refer to Grant’s resistance as unlawful, stating that this was an issue for the jury to decide.

The arresting officer’s words of October 15, 2006 are the only authority on this matter. No videos – cell phone or otherwise – exist. To question whether or not Oscar Grant actually resisted is not too far fetched. We may never truly know what the “nature and quality” of this incident was.

The various videos of Mehserle’s shooting of Oscar Grant available on the internet show a BART officer (subsequently identified as Tony Pirone) with his knee on Oscar Grant’s head, neck or upper back.

At one point, observers of the video can see former officer Pirone changing position, switching to his opposite knee which is on Oscar Grant’s neck or upper back, and putting his hand on Oscar Grant’s head. It is during the placing of Pirone’s knee that Oscar Grant’s arms appear to be moving. 

It is not unreasonable to assume that Oscar Grant’s hands and arms are moving due to the pressure placed on his head, his neck or his upper back, by this officer who appears to be somewhat muscular and stout.* 
This could be what is meant by Judge Perry’s statement regarding the “nature and quality of Grant’s resistance.

Rodney King, the motorist whose videotaped beating by LAPD officers in 1991 was seen around the world, was also accused of resisting arrest. His continued movements to shield himself and to get away from as many as three policemen swinging batons towards his head and upper body were considered to be resistance. 

Could it be that resistance by men of color is the crime?

* A quick word on marijuana

The Alameda County D.A. submitted to the court an In Limine Motion to Exclude Evidence under Evidence Code, Section 352, of a small cup of marijuana found at the scene on the subway platform, and a “medical marijuana” card that was said to be found in Oscar Grant’s wallet. The marijuana cup has since been identified as belonging to another individual on the subway platform; both these two pieces of evidence were excluded from the proceedings and this was not contested by Mehserle’s defense. 

I mention it here only to underscore the possibility that Oscar Grant may have suffered from a malady that quite possibly could have been aggravated by Officer Pirone kneeling on Oscar Grant’s head, or neck, or upper back, which could also explain Grant’s alleged “resistance.”

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