Former BART police officer Johannes Mehserle will return to court on Friday for a hearing on his motion asking that the murder charge against him for the shooting death of Oscar Grant III be dismissed on the grounds that the judge at his preliminary hearing made errors.
Mehserle, 27, shot Grant, a 22-year-old Hayward man, once in the back with his service weapon on the platform of the Fruitvale BART station in Oakland shortly after 2 a.m. on Jan. 1 after he and other officers were called to the station in response to reports of a fight on a train.
Grant was unarmed and was lying on the ground with his face down and his arms behind his back when Mehserle shot him.
Mehserle’s lawyer, Michael Rains, admitted during a seven-day preliminary hearing that concluded June 4 that Mehserle killed Grant, but claimed that it was “a tragic accident” because Mehserle meant to use his Taser gun on Grant and fired his gun by mistake.
In his motion asking that the murder charge be dismissed or reduced, Rains said Mehserle shouldn’t face murder charges because there’s no evidence that he exhibited malice during the two and a half minutes he was on the station’s platform prior to the shooting. He said Mehserle shouldn’t face anything more serious than a manslaughter charge.
Rains said Alameda County Superior Court Judge C. Don Clay, who presided over the hearing, prejudicially denied Mehserle’s rights by not allowing him to call an expert who would have testified about Mehserle’s training to use a Taser and by limiting the testimony of a defense expert who examined multiple videotapes of the incident.
But Senior Deputy Michael O’Connor said in a recent brief that the murder charge shouldn’t be dismissed because there is convincing evidence that “the killing was malicious and an act of murder.”
O’Connor said Mehserle’s “claim of justification or excuse are unsupported and unconvincing” and said Rains’ allegation that Clay was influenced by outside sources is “outrageous.”
Judge Thomas Reardon will preside over the hearing on Friday.
Mehserle is free on $3 million bail.