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Wednesday, January 14, 2009

Shoot First: Mehserle Likely Only Bay Area Cop Ever Charged With Murder for On-Duty Killing

Posted By on Wed, Jan 14, 2009 at 12:57 PM

click to enlarge art.mehserle_thumb_200x150.jpg
Just like Johannes Mehserle, we can't give you a straight answer -- but the former BART police officer appears to be the first Bay Area cop to ever find himself charged with murder following a job-related shooting.

Jim Chanin, a veteran Berkeley attorney who has prosecuted more than 20 police shooting incidents and is currently handling two in Oakland, couldn't recall a similar instance. The closest he could come was a policeman last year convicted of murder in Ohio -- but that man killed his pregnant girlfriend -- on his own time. Mike Rains, a Pleasant Hill defense attorney who has been representing police for more than 25 years, couldn't think of a case like this either. What was yesterday the vitriolic demand of a bullhorn-wielding anarchist is now coming from the Alameda County District Attorney's office: Mehserle is facing murder charges, just as he would if he approached Oscar Grant in a dark alley and killed him for beer money.

Chanin feels it may never have come to this if BART followed the standard operating procedure for police shootings. And, since that didn't happen, we may never truly know why Mehserle pulled the trigger.

In most police shooting incidents, Chanin continued, the officer is read his Miranda Rights just like any other alleged killer. Half the time they choose to take the fifth and half the time they say "I have nothing to hide -- because the shooting is justified." The cops are then given the "Lybarger Warning" -- in which they are ordered to testify in a situation where what they say can result in administrative consequences but cannot be used against them in a criminal case -- it's at this time that authorities could have asked Mehserle just what the hell he was thinking. Failure to testify in a Lybarger situation can result in a police officer's summary firing.

Yet BART did not give Mehserle his Lybarger Warning. It never compelled him to explain why he shot Oscar Grant and Mehserle has consistently refused to participate with any investigations; he quit the police force rather than answer questions from internal affairs.

Presumably, Mehserle will eventually have to explain his actions in court -- but by then he'll have had the time to formulate whatever answer he and his lawyers feel is strategically most effective. Maybe the officer meant to grab his taser and maybe he didn't -- but because he never had his Lybarger Warning, we may never honestly know.

Chanin (who represented 119 plaintiffs in the Oakland Police "Riders" case along with John Burris -- who is suing BART for $25 million on behalf of Grant's family) blames BART for being inexperienced in proper police procedure and characterized the police force as "not well-run" overall. Rains -- who successfully defended The Riders in criminal court -- agreed that BART's inexperience regarding police-related shootings was telling. Calls to BART -- which likely disagrees -- were not returned immediately.

Meanwhile, it's very difficult to ignore the convenient timing of Mehserle's arrest -- fewer than 24 hours prior to a large rally in Downtown Oakland (where more than 100 people were arrested for looting and vandalism in last week's "demonstrations"). That sound you hear is the whoosh of those who wanted to pitch a garbage can through a store window in righteous indignation at "the system" having the rug pulled out from under them. Rains feels the eye-catching charge of murder is no coincidence, either: "In my mind as a lawyer who represents police, they clearly filed a heavier charge because they felt it would help appease the community."

Does this send many folks the message that rioting in the streets gets results? Chanin can't disagree with that.

"I live in Oakland, and that might be true. I hope it isn't -- I don't like it that a lot of inocent people have to have their buildings trashed in order to have a criminal prosecution."

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" is a staff writer and columnist for SF Weekly, which he has written for since 2007. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers... more


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