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a Cursory Look at the Johannes Mehserle Trial - FOUR
by Thandisizwe Chimurenga
Tuesday May 18th, 2010 11:23 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.


Michael Rains, attorney for Johannes Mehserle, filed the Defense’s List of Potential Witnesses on May 11 with the court. The list of 27 names includes several BART police officers and several eyewitnesses to Mehserle’s shooting of Oscar Grant in the back, including those who taped the incident either with cell phone cameras or other means, and John Burris, attorney for the family of Oscar Grant in their $50 million lawsuit against the Bay Area Rapid Transit district.

According to Burris, Rains’ listing of him as a “potential witness” in this case is “a disingenious effort on his part ... . He’s made a motions before to have me gagged; the court ruled that it has no jurisdiction over me.”

Why does Michael Rains want John Burris to testify as a witness for the defense? Burris says that Rains wants him to give testimony regarding claims made to him by some of his clients. These clients happen to be many of Oscar Grant’s friends who were with him on the Fruitvale subway platform when Mehserle shot Grant in the morning hours of January 1, 2009.

In a February 5, 2010 press conference, Burris scolded the media and BART officials for “leaking” information he says was part of confidential settlement agreements between his clients and BART. The information contained testimony regarding what Mehserle said and did in the moments before he shot Oscar Grant in the back.

The San Francisco Chronicle ran a 305–word article on February 1, 2010 headlined, “Unexpected Help for Mehserle – Grant’s Friends” (, which quoted unidentified “sources” as saying that the testimony validated Mehserle’s assertion that he intended to Tase Oscar Grant.

During Burris’ February 5 press conference (posted on indyBay at, he stated, amongst other things, that the testimony of Oscar Grant’s friends, “…doesn’t necessarily mean that it helps Mehserle. … at the end of the day, whatever their interpretation of the events, that’s just their interpretation. That’s not evidence; their observations are, but at the end of the day, we all know, there’s a big – huge – number of video tapes in this case. Those video tapes are clear evidence of what took place that night.”

“It is a mischaracterization to say that they’re … ‘helping.’”

In addition to being angry at what he alleges are BART’s leaks of information in violation of a protection order, Burris stated that BART’s actions placed his clients “in a jeopardy situation; you have placed what appears to be snitch jackets on them, and all they were doing was responding to questions and they were responding to questions at a time when it was under a protective order. And so then how come that was released? Was it designed to cause these boys immediate danger?”

Burris claimed later that some of his clients’ family members had been told they would be seen as “snitches” for their testimony and this, Burris believes, is at the heart of Rains’ attempted move.

According to Burris, Rains “wants me to testify regarding claims made by these clients. He wants me to testify if my clients told me that because he (Rains) thinks they might change their testimony. … Any statements made are covered by attorney-client privilege, he knows that.”

Burris says he has not yet received a subpoena to testify. If and when that happens Burris says his attorney will go into court “and we’ll fight the requirement to testify because of attorney-client privilege.”

Michael Rains also filed, as of April 30, a brief in opposition to the admitting of a Breath Alcohol Testing Form (BAT) into evidence in the trial.

The prosecution’s position is that the BAT form is an admission of guilt by Johannes Mehserle that he David Mastagni, the lawyer who initially represented Mehserle in the first hours after the shooting.

Mastagni is alleged to have made an objection to a box on the form under the heading of “Reason for Test,” which states the nature of the shooting. The objection was leveled at the reason entitled “Post Accident.” Mastagni is also alleged to have stated elsewhere that the shooting was not accidental but intentional. A copy of the form submitted to the court by the prosecution shows Mehserle’s signature and a handwritten box that says “Discharge of Firearm” with a checkmark next to it.

Michael Rains gives several arguments in his 11-page brief as to why this form should not be admitted into evidence; not the least of which is the conversation between Mastagni and Mehserle before and after the form was signed. Rains argues that, amongst other things, anything that was said between Mastagni and Mehserle is in the realm of attorney-client privilege.

Sounds familiar, doesn’t it?

The ending to the story is that Judge Robert Perry said the BAT Form was “off the table” in terms of being admitted into this trial. Since it was a requirement of Mehserle’s employment to take the test at the time of the incident, it cannot be used against him.

The fact that he resigned from BART rather than answer questions during the investigation of the shooting of Oscar Grant – also a requirement of his employment – seems to have vaporized in the wind.
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