East Bay
East Bay
From the Open-Publishing Calendar
From the Open-Publishing Newswire
Indybay Feature
Mehserle's Defense Moves to Prevent Jurors Knowing Pirone Yelled "Bitch Ass Nigger" at Oscar Grant
by dave id
Wednesday Jun 9th, 2010 2:13 AM
Consider this. What if the situation on New Year's Day 2009 was reversed? What if Oscar Grant and his friends detained unarmed police officers with threat of deadly force? What if one of Grant's friends yelled "bitch ass peckerwood" twice right before Oscar Grant pushed Johannes Mehserle to the ground and proceeded to kill him? Would there be broad consensus that the inflammatory statement was relevant to the shooting, perhaps even motivating the hostility shown by shooting an unarmed man in the back? Would Oscar Grant's friend be on trial right along side Oscar Grant as an accomplice to murder? Would everyone pretend that race had nothing to do with the killing? The answers are obvious. The District Attorney and the corporate media would be screaming about locking up the two violent racists and throwing away the key. No doubt.
Instead the story unfolded the other way around, and because it was a police officer, Tony Pirone, who shouted the racial epithets, the Alameda DA is not demanding he be held to account for escalating the situation that led to Oscar Grant's murder. Know that Tony Pirone and his partner Marysol Domenici were the first BART officers on the scene, waving their tasers through BART windows and in the faces of Oscar Grant and his friends, physically and verbally abusing them. Pirone bragged in Mehserle's preliminary hearing about doing a "hair-pull takedown" on Oscar Grant's friend Michael Greer. Pirone has gone on the record that he was a mentor or older brother figure to Mehserle. And his was the scene that Mehserle walked into when he arrived on the Fruitvale BART platform. Mehserle was only present about two minutes before he pulled his gun and shot Oscar Grant.

Yet Mehserle's defense attorney Michael Rains would have the jury (and us) believe that Pirone's words and actions leading up the the very minute of the shooting were not relevant to Mehserle's state of mind when he unholstered his service weapon and pulled the trigger. In a motion filed with the Los Angeles Superior Court [attached below], Rains goes so far as to assert that Mehserle may not have even heard what Pirone said, even though Mehserle was right next to Pirone and the epithet was indisputably caught on video captured from yards away.

Remember that just because Rains asserts something in a motion, does not make it fact, even if he cites it as such. The corporate media all too often forgets this and has reported on Rains' motions as if they were the gospel on the matter. Rains has a gag order on him, so he has used his motions as a means of distorting the truth in the public eye, amplified by an all-too-pliant corporate media. While the only reports of Pirone's racial slur were on Indybay after it was revealed in open court (the corporate media followed with a couple reports weeks later that largely promoted Pirone's version of events), Rains was able to use the informational fliering campaign of community activists that called attention to Pirone's racism as justification for moving the trial out of Oakland. Now he is attempting to deny the jury their right to the full truth before they weigh in on justice for Oscar Grant.

In the motion, Rains asserts, as he and Pirone did at the preliminary hearing, that Oscar Grant first yelled "bitch ass nigger" at Pirone and Pirone's use of the epithet was in response. But Rains and Pirone are the only ones who have claimed that Oscar Grant said anything. If it had truly been a "shouting match," as they assert, then why is Pirone the only one heard yelling in Tommy Cross' hi-quality video (stolen by BART police and not given to the DA until subpoenaed)? The claim that a "heated verbal exchange" occurred was simply Pirone's attempt to justify why yelled "bitch ass nigger" at Oscar Grant twice on video. In the DA's opposition to this motion [attached below], Pirone is quoted as first responding "No" when a Meyers Nave interviewer asked if Oscar Grant had called him a "bitch ass nigger."

In a twist of logic, Rains asserts that knowledge of Pirone's epithet would unfairly prejudice the jury against Mehserle, rather than being a contributing factor to his decision to shoot Oscar Grant. Mehserle did not shoot Oscar Grant in a vacuum, as much as Rains might want to play it that way (when he's not arguing that the shooting was a result of the actions of Oscar Grant and his friends). And this is more or less how the corporate media reports about the murder when they ignore Pirone's racism and violence and pretend that the race of the BART police and Oscar Grant and his friends is somehow coincidental to what happened, as if Mehserle was in no way effected or motivated by Pirone's actions and words -- and as if the rage felt by communities of color over the murder is somehow irrational.

What Pirone yelled is definitely relevant to Mehserle's state of mind at the time, and that's what the entire trial will be about, Mehserle's state of mind. Pirone was Mehserle's mentor or big brother in the BART police department. If his mentor was yelling racist things at Oscar Grant just before Mehserle pushed him down and shot him in the back, that's relevant. If Pirone yelled "Yeah!" after Mehserle shoved Oscar Grant to the ground, thereby encouraging Mehserle's physical abuse of Oscar Grant, that's relevant. Pirone set the stage with his racism and violence towards Grant and his friends. Mehserle was taking cues from his mentor on how to interpret the situation and he acted accordingly, escalating the violence to the point of killing Oscar Grant. Pirone was an accomplice to the murder. While the DA and the corporate media have ignored it, community activists have long asserted that the murder was a hate crime.

This and other defense motions are expected to be decided today, one day before opening statements are heard on Thursday, June 10th. Is it really possible that Judge Robert J. Perry could agree that what Pirone said "in no way bears on Mehserle's mental state," and grant the defense yet another victory in defining the parameters of what jurors can know before deciding Mehserle's fate? To satisfy this motion, the DA's opposition points out, the audio of Pirone yelling "bitch ass nigger" would have to be edited out of bystander videos that will be used as evidence in the case. Would that represent an honest telling of what happened?

As Jack Bryson, activist and father of two of Oscar Grant's friends on the platform when Oscar Grant was murdered, said on June 8th after a jury that completely excluded African Americans was sworn in: “If (Wednesday's) motions go (Rains’) way, there’s no hope for justice.”

(3-page PDF)
(12-page PDF)

Interestingly, this is the first time any of the non-public version of the Meyers Nave report has seen the light of day since Alameda Superior Court Judge Jacobson ordered BART to release it.

Listed below are the latest comments about this post.
These comments are submitted anonymously by website visitors.
Just in -- Rains lost this and two other motions todaydave idWednesday Jun 9th, 2010 11:50 AM
Opposition brief?Kim RohrbachWednesday Jun 9th, 2010 11:37 AM

We are 100% volunteer and depend on your participation to sustain our efforts!


donate now

$ 90.00 donated
in the past month

Get Involved

If you'd like to help with maintaining or developing the website, contact us.


Publish your stories and upcoming events on Indybay.

IMC Network