The lawyer for former BART police officer Johannes Mehserle, accused of killing Oscar Grant III, told an Alameda County Superior Court judge Wednesday that the defense will argue the shooting was not a murder because there was no malice on Mehserle's part.
Grant was shot in the back on the platform of the Fruitvale BART station in Oakland early on New Year's Day. Mehserle and other BART officers had responded to the station in response to reports of a fight on a train.
In the third day of Mehserle's preliminary hearing, attorney Michael Rains said Mehserle had meant to fire his stun gun.
"Mr. Mehserle did not intend to use his firearm to shoot Mr. Grant. He intended to use his Taser to Tase Mr. Grant and he made a mistake," Rains said.
Rains said he plans to present witnesses who will support the defense's contention that "Mr. Grant was actively, actively, actively resisting arrest."
Prosecution witnesses testified earlier this week that Grant was cooperating with officers.
The first witness Rains called was Dennis Zafiratos who was on train with wife and two young children. Zafiratos said a fght broke out on train involving between 10 to 12 people. He said both he and his daughter were pushed in the melee.
Zafiratos said he moved his family to the back of BART train. He said he pushed the button and alerted the train operator that a fight was breaking out on board.
Rains said he plans to call some of Mehserle's fellow BART police officers to testify about the chaotic situation on the Fruitvale station platform at the time of the shooting. One, he said, will testify that Grant was resisting an officer's command.
At the end of Mehserle's preliminary hearing, which is expected to conclude sometime next week, Judge C. Don Clay will determine whether prosecutors have presented enough evidence to have Mehserle ordered to stand trial on murder charges.
Calling witnesses at the preliminary hearing is an unusual move by Mehserle's lawyers.
Defense lawyers typically don't call any witnesses at preliminary hearings because they don't want to tip their hand about their strategy until the trial.