Mehserle's High Risk Strategy

The defense attorney for a police officer being tried for murder in an on duty shooting -- a rare legal scenario in California or elsewhere -- has deployed a high-risk courtroom strategy seeking outright acquittal.

And this given the fact that Johannes Mehserle, a white San Francisco Bay area transit officer, was captured on bystanders' cell phones and video cameras as he shot an unarmed black passenger on a train station platform.

Mehserle has since resigned.

Attorney Michael Rains, in voluminous pretrial filings, argues that his client did not commit first-degree murder and is asking a Los Angeles judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal. The unusual tactic is risky but also shrewd, legal experts say.

"Are they going for broke? Absolutely," said Michael Cardoza, a veteran Bay Area defense lawyer who has watched the case unfold. "They are taking a calculated risk from the get-go that Mehserle did not commit a crime while the District Attorney will be posturing vigorously that he did."

Rains argues that Mehserle, 28 accidentally pulled out his handgun instead of his Taser when he fatally shot Oscar Grant, 22, in the back on a Bay Area Rapid Transit station platform in Oakland on New Year's Day 2009. Grant was prone, face down, with his hands behind his back.

Mehserle has pleaded not guilty to murder.

Among the 200-plus pages of filings released last week, Rains wrote that Mehserle will not argue the killing was conducted in the heat of passion or in self-defense. Rains also argues that prosecutors have shown no evidence that the fatal shooting is either voluntary or involuntary manslaughter.

"It will be Mehserle's position that there is no substantial evidence in the record to support a jury finding that his conduct was so aggravated, culpable, gross, or reckless or that he ever behaved in a manner suggesting a disregard for human life," Rains wrote.

Prosecutors say that Mehserle did intend to shoot Grant.

Two Alameda County judges publicly said they also believe Mehserle meant to shoot Grant. One judge even said, "There is no doubt in my mind Mr. Mehserle meant to shoot Oscar Grant with a gun, not a Taser."

Prosecutors are also requesting that a breath alcohol test form Mehserle signed about four hours after the shooting be admitted as evidence to prove that Mehserle "effectively denied that the shooting was accidential."

They contend Mehserle's first lawyer, David Mastagni, proposed that rather than check a box saying the alcohol test was being conducted as a "Post-Accident," the form add a handwritten checkbox stipulating that it followed, "Discharge of Firearm."

"This was not an accident. It was an intentional act," Mastagni told BART police, according to the court filing.

Mehserle checked the amended "discharge" box, signed the form and took the test, the filing said.

"The People contend that the form constitutes an implied admission that the shooting was not accidental," prosecutors wrote. "The statements at issue here demonstrate that in the aftermath of the shooting defendant effectively denied that the shooting was an accident."

But Cardoza believes that "it's going to be next to impossible" for prosecutors to get Mehserle convicted of first-degree murder, a premeditated act that carries a maximum 25 years to life sentence.  

"It's going to be a very difficult sell to convince 12 jurors that Mehserle had the requisite intent to commit first-degree murder," Cardoza said, and such an argument could even cause the prosecutor to "lose credibility with the jury."

The shooting was video recorded by bystanders and shown across the Internet, sparking protests -- some violent. Several videos were used as evidence during a preliminary hearing last spring and will be prominent at trial scheduled in mid-June.

Bill Portanova, a former federal and state prosecutor, said the videos will undergo intense scrutiny.

"A video does nothing to capture the state of mind of the people involved," said Portanova, now a criminal defense attorney in Sacramento, Calif. "Simply because an event is recorded doesn't mean you capture everything."

John Burris, Grant's family attorney, said any videos of the shooting will be extraordinarily vital to the trial.

"It lays the foundation for the shooting and the legitimacy of it," Burris said. "The video will be the most important witness in the case. Mehserle will be the second most-important witness, if he testifies."

Mehserle is next scheduled to appear in court in Los Angeles on May 7 when a judge could decide, among other pretrial issues, Rains' long-shot request to allow peace officers to serve as jurors, even though state law prohibits police from serving as jurors in criminal cases.

The attorneys involved are under a gag order and cannot discuss the proceedings, which were moved from Alameda County in Northern California to Los Angeles because of excessive media coverage and racial tensions.

Nonetheless, Cardoza believes Rains' hefty briefs gives the judge additional considerations to make in Mehserle's defense.

"Just as importantly, it gets the word out to the public as well," Cardoza said.