Lawyers for former BART policeOfficer Johannes Mehserle have asked a Los Angeles judge for a new trial after the defense team unearthed a 2008 incident that was "pretty much identical" to the defense rejected by jurors this summer.
Defense lawyer Michael Rains submitted the 134-page motion to Los Angeles Superior Court Judge Robert Perry. Click here for motion pdf.
He will likely rule on the motion the next time Mehserle is due in court, which is his sentencing on Nov. 5.
A jury convicted Mehserle of involuntary manslaughter for fatally shooting passenger Oscar Grant on the Fruitvale station platform Jan. 1, 2009.
The filing alleges that the jury did not have a legal basis for that conviction.
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 immediately return calls seeking comment.
Although he faced charges of first- and second-degree murder, Mehserle was convicted of involuntary manslaughter.
Bay City News