Lawyers for former BART police Officer Johannes Mehserle have asked a Los Angeles judge to issue a new trial after the defense team unearthed a 2008 incident that was "pretty much identical" to the defense rejected by jurors last year.
Defense lawyer Michael Rains submitted the 134-page motion Friday to Los Angeles Superior Court Judge Robert Perry, who is presiding over the case after it was relocated from Alameda County due to widespread attention.
The filing alleges that the jury did not have a legal basis to convict Mehserle of involuntary manslaughter for fatally shooting passenger Oscar Grant III on the Fruitvale station platform while Grant was lying facedown on the ground on Jan. 1, 2009.
It also says new evidence has come to light since the jury made its decision in July that should entitle Mehserle to a new trial.
Mehserle's defense has said the shooting was accidental and that the former officer, who had been on the force 2.5 years and been trained to use his Taser just three weeks before the killing, meant to shoot Grant with a Taser stun gun instead of his firearm.
"The district attorney at our trial argued that even though there had been some prior cases of officers mistakenly shooting guns instead of Tasers, not a single one was identical to this case," Rains said.
But after the trial, the defense team discovered an incident in which a 13-year veteran of a sheriff's department in Kentucky shot a suspect with a gun instead of a Taser, Rains said.
The sheriff's lieutenant shot a suspect in the small city of Nicholasville and severely injured him, Rains said.
He said the district attorney determined the lieutenant had made a mistake but did not have any criminal intent. No criminal charges were filed against him.
The lieutenant was using the same type of gun and same type of holster used by Mehserle, and the two situated their respective weapons on the same parts of their belts, Rains said.
"In all respects it's pretty identical to what happened to Mr. Mehserle," he said.
Deputy District Attorney David Stein, who is prosecuting the case, did not return calls seeking comment today.
Although he faced charges of first- and second-degree murder, Mehserle was convicted of involuntary manslaughter for killing Grant, a 22-year-old Hayward resident, after a fight broke out on the platform.
Mehserle is set to appear in court for sentencing on Nov. 5 and could face between two and 14 years in prison, Rains said. He said the judge would likely rule then on the motion for a new trial.