Judge Upholds Mehserle Gag Order

An Alameda County Superior Court judge kept a gag order in place in the case of a former Bay Area Rapid Transit police officer accused in the Jan. 1 fatal shooting of an unarmed man at the Fruitvale station in Oakland, a highly publicized incident that has inflamed passions throughout the Bay Area.

Judge Morris Jacobson ruled there was a "clear and present danger" that any trial for 27-year-old Johannes Mehserle, charged with murder for shooting 22-year-old Oscar Grant III, would not be fair and would also harm the integrity of the judicial system if attorneys in the criminal case were allowed to make certain public statements to the media about the case.

He then outlined 10 areas that attorneys could not discuss, including statements about the character or credibility of anyone involved in the case, witness identities and evidence in the case.

Mehserle's attorney Michael Rains had requested Jacobson lift his temporary gag order, arguing today, "To restrain me from speaking at all is to ensure that the vilification of my client continues to occur."

"I am trying to undo, simply undo, some of the horrific damage that has been done to my client unfairly," Rains said.

"My client felt, and feels, and will forever feel terrible about what happened," said Rains.

Rains complained that he had not seen one media report about the case describing Mehserle's remorse.

Mehserle, who was not required to be present for the hearing, is scheduled to return to court March 23 for a preliminary hearing in the case. He remains out of custody after posting $3 million bail earlier this month.

The shooting took place in the early morning hours of New Year's Day, after Mehserle and other BART officers responded to reports of two groups of young men fighting on a train.

Mehserle reportedly told other officers he had been reaching for his Taser when he fired his gun at Grant, who was lying face down on the BART platform at the time. Grant, of Hayward, died at the hospital later that morning.

The shooting provoked widespread outrage and protests, during some of which several businesses in downtown Oakland were vandalized as Mayor Ron Dellums issued calls for calm.

Mehserle resigned the week after the shooting incident, and was arrested on Jan. 13 in Lake Tahoe.

Rains asked Jacobson to lift the gag order and allow attorneys from both sides to address the media after court hearings to ensure both that his client is treated fairly and that media were accurately informed of the proceedings.

Attorneys for California First Amendment Coalition also support the lifting of the gag order.

Attorney Paven Malhotra argued for full access to media, both before and after court hearings, "because reporting should be even-handed," he said.

"Reporters are striving to provide all aspects of the story," Malhotra said, including background that can only be obtained in advance of court hearings, he said.

The Alameda County District Attorney's Office did not file briefs either in favor of or opposing the order.

Prosecutor David Stein said today that he was not opposed to making the gag order permanent, but was not asking the judge to do so.

"The one thing that we can agree on is that the media coverage in this case has been widespread," said Stein.

However, Stein maintained, "On balance, I do not believe that the coverage as a whole has been prejudicial."

Jacobson said that in his 25 years living in the Bay Area, "I cannot recall a case that engendered this much public interest." He said there had been about 500 newspaper articles written about the case, as well as national and international media coverage.

"I've seen media coverage on this case every single day since January 1st, 2009," Jacobson said.

He also noted that Mehserle and his lawyers have received death threats.

Jacobson issued a temporary gag order after Mehserle's Jan. 30 bail hearing, when he said he learned that defense attorney Michael Rains had provided a copy of his bail motion, which included the names of 17 potential witnesses, to the San Francisco Chronicle shortly before the hearing.

"To put the names of these witnesses into the public domain might well threaten the ability to have a fair trial," said Jacobson.

Jacobson said he was greatly concerned about the safety of witnesses, about media interviewing witnesses and possibly influencing their testimony, and about continued communication between lawyers and media, which he said might further harm the ability to get an uninfluenced jury.

"I find that the kind of speech that has gone on so far poses a clear and present danger" to those issues, Jacobson said.

Jacobson also said he anticipates a motion will be filed to change the venue of the trial, "which may perhaps be appropriate in this case," he said.

Jacobson said he "wouldn't want to see that the lawyers have contributed" to that possible change by making certain public pronouncements.

Jacobson's tailored gag order was issued to attorneys and their assistants, Mehserle, and any law enforcement assigned to the case.

The prohibitions include not discussing: the character, credibility or reputation of any involved party in the case; the names of potential witnesses; the expected testimony of witnesses; Mehserle's statements or his refusal to make statements; physical evidence expected to be introduced during trial or the absence of evidence; any expert witnesses expected to testify or any lack of expert witness testimony; any evidence that may be inadmissible at trial; the strengths or weaknesses of either the prosecution or defense cases; any statements to "set the record straight" that are intended to influence a potential jury; and any statements likely to influence a change of venue.

Neither the prosecution nor the defense spoke to the media following the hearing.

Malhotra was the only attorney to meet with reporters. He said he was surprised at Jacobson's decision and that he had hoped for a narrower gag order, but that it was somewhat understandable given the unique nature of the proceedings, having had witness names leaked to the public.

Malhotra still asserted that the media was capable of reporting fairly on the case.

"(Supreme Court) Justice Brandeis once said that sunshine is the best disinfectant," he said.

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