The wrong verdict in Mehserle case
by zunguzungu
The policeman who shot and killed a prone Oscar Grant in the back has been convicted of “involuntary manslaughter.” He’ll get 2 to 4 years on that charge, and then he’ll apparently also serve 3, 4, or 10 more years because California has a get-tough-on-crime thing which adds more years if you use a gun in the commission of a crime, which the jury ruled he did. To deliver a verdict of involuntary manslaughter, the jury had to rule beyond a reasonable doubt that Mehserle was guilty of “criminal negligence.” And they were instructed that these were the requirements for that verdict:
The defendant committed involuntary manslaughter if:
1. The defendant (a) committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed or (b) committed a lawful act, but acted with criminal negligence;
AND
2. The defendant’s acts unlawfully caused the death of another person.
Number two is obvious; Mehserle shot Oscar Grant and he died. And since the jury added the gun enhancement, it’s clear that they considered what he did to have been an unlawful act: since one cannot get additional years for using a gun to commit a lawful act, their ruling was that he “committed a crime that posed a high risk of death.”
However, they chose to acquit him on the charges of second degree murder and voluntary manslaughter. Mehserle’s defense was that he had meant to reach for his taser but instead grabbed his gun by mistake, and the Alameda County District Attorney claimed, immediately afterwards, that the gun enhancement indicated that the jury had rejected that defense:
Alameda County Dist. Atty. Nancy E. O’Malley said she was “disappointed” and “frustrated” by the verdict. However, “the jury clearly did not find that his was an accident,” O’Malley said during a post-verdict news conference in the lobby of the Alameda County Courthouse. “What this jury found was that when Mehserle committed the crime, he was acting with criminal negligence and acted recklessly, and he intentionally pulled out his weapon and not his Taser…They rejected that he was going for a Taser and found he used that gun in a negligent and criminally reckless manner,” she said, “…. in the course of committing a crime.
I don’t understand how she came to that conclusion. They were specifically told they could convict him of involuntary manslaughter but not the other two charges “if he did not have the intent or mental state to commit the crime because he mistakenly believed a fact, namely, that he had drawn his taser and not his firearm.” And this seems to me to be the most plausible reading of what the jury did. Because here’s what it takes to be convicted of second degree murder:
1. The defendant committed an act that caused the death of another person;
2. When the defendant acted, he had the state of mind of malice aforethought;
AND
3. He killed without lawful excuse.
Now the first condition is obviously the case. And if the third were the case, if he had a “lawful excuse” for killing Grant, he would be guilty of voluntary manslaughter, which the jury did not find him guilty of, so that’s not the issue. Which leaves us “malice aforethought”:
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with express malice if he unlawfully intended to kill.
The defendant acted with implied malice if:
1. He intentionally committed an act;
2. The natural consequences of the act were dangerous to human life;
3. At the time he acted, he knew his act was dangerus to human life;
AND
4. He deliberately acted with conscious disregard for human life.
Malice aforethought does not require ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation of the passage of any particular time.
Basically, “malice aforethought” just means that Mehserle knew that what he was doing would kill Oscar Grant when he did it. By acquitting him of both second degree murder and voluntary manslaughter, the jury could only have decided that he lacked “malice aforethought,” that he had not intended to kill Oscar Grant:
When a person commits an unlawful killing but does not intend to kill and does no act with conscious disregard for human life, then the crime is involuntary manslaughter.
The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life his actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter of murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.”
The distinction, in other words, is between intending to kill and negligently killing by accident; the distinction between “reasonable” and “unreasonable” fear doesn’t play into it (as Adam Serwer claims), nor does the San Francisco Chronicle seem any better informed than usual in this editorial “The right verdict in Mehserle case”:
The bottom line is that the jury agreed with what any fair-minded person who saw the videotape of the shooting on the BART platform at the Fruitvale Station had to conclude: There was no reason to use fatal force on Grant, who was being physically restrained at the time. Mehserle, 28, claimed it was an accident, that he thought he was firing a Taser instead of a handgun at the detainee. The explanation stretched the bounds of plausibility, given the difference in weight, feel – and position on his holster – between the nonlethal weapon intended to immobilize and the Sig Sauer P226 pistol that is used to kill. He clearly was negligent. It was a crime, not an accident.
The question before the jury wasn’t crime or accident, it was intent to kill or negligence. And they ruled that he was criminally negligent without an intent to kill. But the only way they could have got there — that I can see — was by ruling that they believed his story, that he intended to grab his taser rather than his gun. So while they’re right that that “explanation stretched the bounds of plausibility,” they’re wrong about the underlying question: the verdict was wrong.
zunguzungu 
Why is it wrong, Aaron? You haven’t answered your own question.
Plus why are you trying to reconcile involuntary manslaughter with the gun enhancement? I think it’s pretty obvious that the marriage of the two indicates a compromise verdict.
It’s wrong because the taser defense is ridiculous, for all sorts of reasons. And you don’t have to reconcile the gun enhancement with involuntary manslaughgter, as far as I can tell: the definition of involuntary manslaughter can be “committed a crime that posed a high risk of death.”
So, just to be clear, you think it’s the wrong verdict because you disagree with the jury’s assessment of Mehserle’s credibility. You don’t by the Taser confusion story, based on your assessment of the facts (weight, size, holster, timing, etc.). You’re not arguing that the jury misapplied the law.
Yes. One of the ways the trial is being reported is that the jury rejected the taser defense (both the SF Chronicle and District Attorney O’Malley are saying that), but to my eyes (from reading the jury’s instructions), this is wrong; the only way the jury could have come up with the verdict they did would be by endorsing the taser defense. If they rejected the taser defense, it was second degree murder, or voluntary manslaughter if he had some kind of “lawful excuse” to be reckless, like fear for his life or something. Involuntary manslaughter can only come about if he didn’t know he was killing Grant, which is only remotely plausible if he didn’t know he was holding a gun.
And I find that defense pretty weak, for reasons I outlined in the comment below:
And since the jury added the gun enhancement, it’s clear that they considered what he did to have been an unlawful act: since one cannot get additional years for using a gun to commit a lawful act, their ruling was that he “committed a crime that posed a high risk of death.”
I’m not entirely convinced by this: having ruled that he was “criminally negligent”, involuntary manslaughter may well be the crime which justifies the gun charge. It’s possible, as Lecock says, that the two charges represent a compromise position — though a competent judge shouldn’t allow it if the charges literally contradict each other in the way you’re arguing — but it seems more likely that they decided that involuntary manslaughter was a crime.
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But, ZZ, the point is whether or not the jury could prove 2nd degree murder beyond a reasonable doubt. Are you absolutely certain that Mehserle had the intention of killing Grant, not just using deadly force?
Before you doubt my bona fides, let me make the requisite assurance that my own personal sense of justice thinks that Mehserle should be held to a higher standard, and that the 2nd degree charge makes sense because the premise of us entrusting him and other police officers with deadly force is that they are aware when they’re using it. Unfortunately my personal beliefs make no difference to the letter of the law.
The sentencing isn’t until August, so this story isn’t over yet.
Actually, read the definition of second degree murder as I’ve reproduced it here. There can be implied malice if the Mahserle “intentionally committed an act,” whose “natural consequences…were dangerous to human life,” and “he knew his act was dangerus to human life,” and “He deliberately acted with conscious disregard for human life.”
He didn’t have to intend to kill Grant, per se; he basically just had to know that he was holding a gun in his hand and that guns kill people when you use them in this manner. This is why the taser defense is the only logical solution (assuming the jury was logically following their instructions, but still): if he knew it was a gun he was firing at close range, it was 2nd degree (and second degree can be, under extenuating circumstances, reduced to voluntary manslaughter). But the difference between 2nd degree/voluntary manslaughter and involuntary manslaughter is whether or not he knew the act he was committing might wind up killing someone.
You’re missing the point, though. The jury couldn’t prove 2nd degree murder beyond a reasonable doubt.
Well, certainly that’s what they decided. And part of it is that we’re getting into the places where effective law in practice necessitates overlooking the almost impossibly murky epistemology of how the sausage is made. After all, what is intent? But unless doing a thing counts as strong evidence that you meant to do a thing, we’re in a situation where its awfully hard to ever prove that a person ever meant to do *anything.* If all they have to do is say they didn’t mean to do it, then who can tell them they’re wrong? The mind is closed off to us and, since, we only have actions to guide us in reconstructing it, the strongest evidence that he meant to shoot Grant was, simply, that out of the blue he did so. No one forced him. He and the other officer were in complete charge of the situation. And, most importantly, the benefit of the doubt being extended to him in this scenario is one that is not given to people as a matter of course; I want him to receive the same treatment as other people, and I don’t think he did.
Anyway, in this case, it seems important that all we have as evidence that he meant to draw his taser was the fact that he said so, and only at the trial. Since, as I see it, the fact that he drew the gun and fired it is pretty strong evidence that he meant to do so — guns don’t draw themselves — there has to be some reason to think that the taser mistake is plausible. To me, there is none; it is a story built completely out of his say-so and with real holes in it.
ZZ, there’s far more to this case than the taser defence. One can disbelieve the taser story and still have ample room for reasonable doubt. The strongest evidence that M didn’t intend to shoot Grant is also that he did so “out of the blue.”
One more thing. I totally understand and endorse your position if you’re saying that your own sense of justice finds the verdict wrong. But if you’re saying that, according to the letter of the law, the verdict was wrong… then you’d actually have to evaluate the admitted evidence and arguments, not merely the judge’s instructions to the jury.
you’d actually have to evaluate the admitted evidence and arguments
Short of being in the court-room, I’ve done as much as I can by following the coverage.
The strongest evidence that M didn’t intend to shoot Grant is also that he did so “out of the blue.”
If his action was strange and bizarre — uncanny, if I may — and if we simply had no way to account for why it happened, then that would suggest something else was going on here and would raise reasonable doubt that he had “malice aforethought.” But thirty seconds before Meherle shot Oscar Grant, the other officer (Tony Pirone) was shouting “bitch-ass nigger” at the prone Grant, and the entire fracas started because a group of cops were behaving, to say the least, unprofessionally. They had a report that people were fighting in a bart car, and when they arrived, they started grabbing people off the car, randomly and chaotically, and — as witnesses testified — none resisted. They handcuffed Grant for unclear reasons, and used excessive force in doing so (there’s video of Pirone punching Grant in the face for no apparent reason). They behaved, in short, like arrogant, out of control, assholish cops, using force quite liberally and without apparent cause.
This doesn’t prove that Meherle intended to shoot Grant. But it does demonstrate that he didn’t shoot him “out of the blue” in an important sense: after a series of violent acts on the part of the police, Meherle raised the stakes dramatically and shot Grant. In other words, there was already an established pattern of unprovoked police violence, and while the actual shooting came “out of the blue” in the sense that *all* of the police violence came out of the blue, it fit that pattern, and is therefore comprehensible. My point — clumsily phrased — was that shooting Grant didn’t come in response to actions on the part of Grant himself, but it certainly isn’t that surprising in terms of what was happening there: Pirone also attacked a prone Oscar Grant (with words and his fists) for no apparent reason. Was he, too, reaching for his taser? This is why I find unconvincing the argument that we need some kind of further proof that Meherle intended to shoot Grant beyond the fact that he shot Grant. Throughout the entire interaction, the police were attacking unresisting suspects without apparent cause; the fact that the situation escalated to the use of firearms is in keeping with what had been happening up until that point, and so, unsurprising.
But I’m open to hearing your sense of what evidence I’m overlooking here; if it’s not the taser defense, then what was it?
I’m with Seafan. You’re using Tony Pirone to convict Meherle. Plus unprofessional does not a murder conviction make.
Also you have a habit of seeing everything as unprovoked, as evidenced by your twitter read of riot police as “interpolation.” The historical fact is that 19 months ago a lot of businesses were trashed. Prudence and common sense suggest that this type of behavior might happen again and the police be prepared for such a possibility. They did so and seemed to have used admirable restrain. No doubt you’d be condemning them had they laid back and downtown was now in flames. It’s feeling a bit like damned if you do, damned if you don’t, if you ask me.
How does writing “This doesn’t prove that Meherle intended to shoot Grant” turn into “using Tony Pirone to convict Meherle”? My point was that it makes his shooting Grant fit a pattern rather than being bizarre and coming out of nowhere. Feel free to read what I actually wrote.
You also have a lot of opinions about my “habits,” gleaned from what I wrote in a 140 character twitter feed. If you’d like to know my opinions about such things in more than just out of context bits and pieces — did you read the conversation it was a part of on twitter? — it’s good not to go in assuming you already know what I would or wouldn’t say.
I’m merely pointing out that Pirone and Meherle are not the borg. The pattern exists only from the outside. There are still individuals on the inside. If you were Pirone’s partner, for instance, I would not assume that you form a unified entity from which a pattern can be extrapolated, and I expect you would resent it if I did.
You’re right, again, though I think my point about your reading of interpolation stands and I would like you to respond to it. My thesis: riot police were made fully necessary by prior events and prevented larger damage to downtown, much of which is made up and “Mom and Pop” type shops that were damaged “last time.”
Don’t mind my being an asshole. The internet is a weird forum that gets me all foamy at the mouth.
ZZ, there are still too many questions and unlikely scenarios and theories. That’s what I mean about beyond a reasonable doubt. Even with your power of articulation, you can’t make an airtight case that M should have received 2nd degree. I think your confusion is stemming from a conflation of reasonable doubt with exoneration. I can’t speak for the jury, but their verdict indicates to me that they weren’t happy with what happened, and they didn’t think M was blameless. In fact, the only thing I’m certain of is that they found his actions so negligent that they were criminal, and, moreover, that they were so criminal that he deserves to have his maximum sentence increased more than three-fold.
And though I don’t agree with Lecock’s tone, I do agree that the overarching theme of your argumentation in this thread is an unwillingness to entertain the possibility that M might not be guilty of murder. Whether or not that’s a possibility you can ultimately agree with, if you’re a juror, then it’s your responsibility to entertain it.
Like I said above, if all this is just venting your own personal beliefs, that’s fine. But if you actually think that the jury made the wrong verdict, then you’d have to go into the case transcripts and see which evidence was admitted, which wasn’t, and see how the arguments were constructed. Because what’s contained in the news accounts isn’t always what’s admitted in court.
“my own personal sense of justice thinks that Mehserle should be held to a higher standard”
Sure but can’t your sense of justice also account for the fact that society puts the guns in police officer’s hands and says ‘take care of us’–i.e., do the largely thankless tasks that we (or least least most of us, including me) do not wish to do. If there is some take, surely there must be some give.
Let’s not forget, this situation happened because the police grabbed a bunch of teenagers off a bart car — more or less at random — at midnight on new years, taking an unserious situation and making it serious. Read this account of the lead up to the event:
About 2 a.m., riders reported a fight as a Dublin-Pleasanton train left the West Oakland station. Grant, 22, of Hayward, was in the train’s lead car with his friends after a brief New Year’s Eve trip to San Francisco.
BART dispatched officers to Fruitvale to intercept the train. Mehserle, 27, who had been on the BART police force for two years, had to drive with his partner from the West Oakland station. There, a teenage boy with a semiautomatic pistol had fled from police and jumped off the station platform, breaking several bones.
Another officer was already at Fruitvale – Tony Pirone, 36, a former Marine who came to BART four years ago from the police force at the Lawrence Livermore National Laboratory.
When they got the call about the train fight, Pirone and his partner were downstairs at Fruitvale detaining an alleged drunk. Pirone headed alone up to the platform, where the train was already waiting.
Witnesses who later talked to BART investigators said Pirone, cursing and pointing his Taser, detained Grant and his friends, who had gotten off the train.
A source familiar with the investigation said Grant and another man briefly ran back into the train; Grant then came out voluntarily, while Pirone grabbed Grant’s friend and dragged him out.
Pirone took Grant’s friend to the platform and handcuffed him, angering some other riders, according to a review of video footage and interviews with several sources close to the investigation.
By now, five other officers, including Mehserle, had joined Pirone and his partner at the station.
Video footage taken with a cell phone aboard the train, and aired last week on KTVU-TV, showed that Pirone suddenly rushed toward Grant as he and two other men stood by a wall near Pirone’s partner and struck him. Grant then sat down, the footage shows.
According to two sources familiar with the investigation, Pirone then told Mehserle that Grant and a second man were to be arrested for resisting him.
Mehserle is seen on video footage forcing Grant to his chest and trying to handcuff him before taking out his pistol and firing.
Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/30/MNOP15JI6F.DTL#ixzz0tBlM5T7a
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I think this is bullsh!t. He knew extacly what he was reaching for, he just didn’t know he wasn’t gonna get away with what he was doing. If there was no cameras, he would have lied like all police do to get themselves out of trouble!!! Police are trained to go for the gun on the right, and tazer on the lower left(and just the opposite if your left handed). Usually officers who regularly abuse their power are usually caught sooner or later, this was his time to be exposed. Everything in the dark will come to the light!
My sense of justice sees every action and arrangement of bodies in those videos as historically determined and shot-through with race/class and testosterone. But as I said above, my sense of justice doesn’t matter to the letter of the law.
The prior post and deleted is an acectped English phrase to speak honestly and directly about a topic, specifically topics that others may avoid speaking about due to their sensitivity or embarrassing nature. Brewer’s Dictionary of Phrase and Fable (1913) defines it as To be outspoken, blunt, even to the point of rudeness; to call things by their proper names without any “beating about the bush”.This is taking “PC” to the extreme far left. Wow…, there goes free speech and opinions on this blog…
Sure but can’t your sense of justice also account for the fact that society puts the guns in police officer’s hands and says ‘take care of us’–i.e., do the largely thankless tasks that we (or least least most of us, including me) do not wish to do. If there is some take, surely there must be some give.
Surely you’re joking. Thankless? A large majority of the country thinks that police officers are basically the second coming of Jesus (I’d wager that a fair percentage of the population’s thoughts on this incident amount to: “Well, if a police officer shot him, I’m sure he deserved it.”) They’re constantly being referred to as heroes by virtually everyone with a voice in American society. I’d love to be so un-thanked. And there’s no “take” here. These people are not conscripts. They freely signed up for this responsibility and if they don’t want it, they should find another line of work.
We are talking about legal principles. The law acknowledges and accounts for the fact that police carry around guns as a job requirement. This changes things. Therein lies the “take.” It has nothing to do with conscription.
Does this make it easier for you to understand my point?
Not really. For one thing, did you mean, “This [i.e. Seafan’s proposed principle of holding police officers to a higher standard] *would* change things”? Because if you really meant to write, “This changes things.” then I have no idea what “this” would be referring to.
But if the “take” refers to the proposed change in legal principles then I read your previous statement as, “If we change our legal principles to hold police officers to a higher standard, surely there must be some give [to compensate for that “take”, I assume?]” in which case I have no idea what kind of giving you might be thinking of. More thanking?
Moreover, Seafan is saying that it is *right* to hold police officers to a higher standard. Why would we need to provide compensation for doing what is right? And if you disagree and think it would be wrong, why would compensation make that any better?
I agree the murder carhge was probably politically motivated. However, it may be more than just leftist “politically-correctness” that motivated the carhge. BART stands to lose more in a lawsuit if BART can pin it on Mehresle. A lesser verdict shifts the blame (and the liability) to BART.BART has always been far too politically connected. Years ago, the FBI had a sting operation going against a top dog in the Purchasing Department – something to do with favoritism in the awarding of contracts (instead of complying with the competitive bid process). He was somehow connected to Ron Dellums. One was the best man in the other’s wedding. I doubt the FBI ever got to finish the sting. Someone in Washington probably called a halt to the operation.
“Give and take” — you know, the expression. Are you slow? Also instead of being an anonymous asshole and flamebait, why not step up and sign your posts? Furthermore, doing *this* is some of the most retarded shit I’ve *ever* seen.
Chill, James. I’ll delete you if all you comment is empty attacks and profanity. This is a forum for substantiated attacks and meaningful profanity, so if you want to attack the things “anonymous” said, do so responsibly.
I can’t believe I’m going to respond to this bullshit:
If police are justifiable held to a higher standard because they are armed and because they have greater power than the average civilian, then the law and juries have tended to also recognize that police are placed in more difficult situations on a more frequent basis than the average citizen, and have tended to give the benefit of the doubt based on that fact. Thanking has nothing to do with it, and this is purely descriptive–the way it is.
To respond to Z’s reply above: Pirone’s seemingly bad-faith efforts do not make necessarily make Mehserle’s the same.
And finally, Z, even a brief survey of the historical record will show the that taser defence is not “ridiculous.” I’ve noticed you calls things ridiculous when you don’t really want to provide evidence by the way. Not only did BART have significant training failures with respect to taser training, but just back in 2003, a deputy for LA Country successfully used a taser defense. I’ll let you look up that one and the rest of them. This is why I don’t blog.
re: meaningful profanity, etc: ok, that’s fair. i apologize, but only to you Z 🙂
That’s more like it. I actually don’t hold to seafan’s sense that police should be held to a higher standard; my sense is that police should be held to the same standard as non-police; the fact that they carry guns is not a license to misuse them. And my sense is that, in this case, Mehserle was not held to the normal standard.
The reason I think the taser defense is ridiculous is not a general dismissal of all such defenses anywhere, but in this particular case. Mehserle was wearing his taser on the opposite side of his waist than his gun and had already drawn and holstered his taser. Instead of repeating that motion, he drew the gun (on the other side of his body) and after a moment’s delay, he fired. That moment would have been long enough for him to realize that he was not holding a taser; the two are not even close to similar in size, weight, feel, etc. [ZZ edit: by “moment” I mean, “instant.” The point is that it was not a single motion.]
In the six cases the defense raised as precedent (where officers accidentally drew firearms instead of their taser), the taser was always holstered right next to the firearm, a case where the officer would have used the same arm (And a very similar motion) for both. In this case, it was a different arm and a very different motion.
All good points.
Did you also read that BART police didn’t have enough tasers for all its officers and that they would have to obtain a taser (and holster) from officers coming off shirt? This apparently meant that Mehserle would sometimes wear his taser strongside, someetimes weakside, and sometimes weakside with the holster reversed. For me these issues insert serious doubt as to what can certainly be said about Mehserle did and did not mean to do (in moments of differing levels of stress that we can never really fully assess/account for).
I guess I like the taser defence because for me the idea that Mehserle pulled and gun, know he had the gun, and pulled the trigger anyway seems unlikely given the type of cop he seems to have been. I don’t really believe that things have progressed so little that he really believed he could get away with those actions performed on an unarmed man and in front of a crowd with recording devices. I’m sure this will get called out as naive.
I agree it seems unlikely that he thought much about what was happening in any kind of careful way, and I’m sure he regretted what he did almost immediately. But regretting a crime has never been a serious excuse, and it shouldn’t be here. As for intent, “stress” is a non-starter; Grant was in no sense a threat at that point, having had his arm secured and two police on top of him.
It’s also worth noting that in the aftermath of the shooting he didn’t give any indication that he had meant to use his taser (something all the other “taser accident” police did, usually immediately and with great emphasis). It only came up as his defense at the trial, and if the defense was going to use “intent” as a mitigating factor, the fact that he didn’t clarify that mistake until it was his only lifeline weakens the case quite a lot. (in fact, immediately afterward, he told another policeman, Terry Foreman, that he had thought Grant was reaching for a gun, and if that was true, the gun, not the taser, would have been the appropriate response.)
You are selectively using evidence. Seconds before the shooting Meherle said “I’m going to tase him.” Also cops are trained to allow–even encourage–suspects to talk and thus incriminate themselves. Meherle was trained by both that experience and by his union not to say anything. It’s an explicit part of the training. The fact that other cops dealt with the shock of shooting someone in a different way doesn’t mean shit as far as I’m concerned. There is not a large enough body of evidence that you can say definitively how someone should act after shooting someone instead of tasing them.
It’s worth noting that Mehserle claims to have given a taser warning, but that other witnesses did not corroborate that (I can’t find it now, but one witnesses had him saying something different and aggressive). Hard to say, but not conclusive of anything, certainly not evidence that he intended to tase him.
And the things witnesses have him saying afterwords always make it seem like he was defending what he *did* and never gave any indication that he made a mistake. If he grabbed his taser instead of his gun, the mistake was not what he saw but what he did, and yet witnesses reported him talking about what he thought he *saw.* Again, the opposite of what one would expect if he intended to tase him; not evidence per se, but the absence of evidence, which is my point: to believe that he intended to tase him, we have to operate almost purely out of faith. There just isn’t any other reason to take the taser story as plausible, and significant reason (as I see it) to distrust it.
I also think there is something potentially arrogant about saying that the jury came to the “wrong verdict,” full-stop. The lens you are looking through is that of what is second-rate media coverage at best.
You’re right on that, I suppose. My title was an attempt to be too clever: the SF Chronicle wrote an editorial (which I linked to) that was entitled “The right verdict in Mehserle case,” even though they seemed not to really understand what it was that the jury had decided (which didn’t boil down to crime vs. accident). But I do think the decision was wrong, and I’ve articulated why. Saying so might be arrogant, but it’s one of the lesser sins I’m guilty of, I suspect.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/09/BAQB1EC3T3.DTL&tsp=1
There’s a cynical read on this, of course, but I for one think life is more depressing if you go down that road.
I was just reading that. I hope he finds peace. My first reaction to hearing the involuntary manslaughter charge was relief, that he wasn’t acquitted, but whether he serves 2 years or 10 years is irrelevant, and it gives me no joy to think of what that one incredibly stupid act has cost him.
And the hard thing is that — whatever you or I think is the right thing — harsher sentencing for Mehserle doesn’t solve anything either; this whole “justice for Oscar Grant” rhetoric is ridiculous. Oscar Grant is dead. But how do we get to a place where “Oscar Grant” doesn’t keep happening? The problem isn’t Mehserle, but the fact that police officers can do the things they do and get away with it means that more “Oscar Grant’s” are all the more inevitable. Which is why that “wild west” quote from the oakland police chief pissed me off so much; it was Meherle and his squad that were running wild that night, as I see it, and if it hadn’t been caught on video (and if hundreds of people hadn’t been working to publicize this case for many months), nothing would have happened. And what will happen next time? Who will police the police? There are states that have laws against photographing the police, but if people on the train hadn’t done it, no *way* he would have been convicted of anything. It all makes me very tired.
Well put. You’re a good man.
Well, now I feel like an asshole for writing that giant comment defending the verdict because I agree 100% that whatever one thinks of the verdict, this did not need to happen and the focus should be on decreasing the frequency of this types of events (I originally wrote, “making sure it doesn’t happen again” but then I realized the depressing futility of that statement). Pirone and co. should not have escalated this situation, Mehserle should not have been reaching for his taser (if that is indeed what he was doing), and even if Mehserle made a mistake, I think a large part of the reason he did so would be because of the tense and chaotic atmosphere that was in large part created by the police force “running wild”, as you say.
There are states that have laws against photographing the police
Well, I’m glad to know that my reaction to this was not entirely due to a lack of cynicism: I think your statement here is slightly misleading in that there aren’t any (that I could find) laws against photographing police officers specifically, but rather there are laws against photographing people without their consent which have now cleverly been applied to folks taking photographs of police officers. That makes this new piece of information slightly less depressing. Of course police officers routinely try to confiscate people’s cameras even without such laws (apparently one of the officers at the scene of the Grant shooting tried to do so) and beyond making it legal to record police officers, I think any officer who tries something like that should be charged with a crime.
And it’s probably also worth mentioning that focusing on the question of whether race was a factor in Mehserle pulling the trigger (which, even in the scenario in which he thought he was holding his taser, it quite possibly was) distracts from the fact that race was almost certainly a huge factor in the creation of this whole situation. If those police officers were responding to a report of a bunch of white UC Berkeley students who were drunk and doing some stupid shit (as they will sometimes do, I know quite well), I highly doubt that they would have behaved in a manner anything like they did. And even those who think that Mehserle made a mistake have to face the fact that just like chance favors the prepared mind, mistakes favor the fucked-up situation.
Don’t feel like an asshole, Anon! I’m working on a reply, but you’ve convinced me that I’m right in a different way than I originally thought I was 😉 The big picture is the important thing, but it’s also worth thinking about how that big picture influences the little picture (which I’ll go into in the reply, if that doesn’t make sense). Basically, don’t go away!
And thanks for taking the time to write what you did; James is right that it’s good analysis, better in some ways than the case made by the defense, so far as I can tell.
[…] The Wrong Verdict at ZunguZungu […]
Responding here just to escape the deep nesting:
But it does demonstrate that he didn’t shoot him “out of the blue” in an important sense: after a series of violent acts on the part of the police, Meherle raised the stakes dramatically and shot Grant. In other words, there was already an established pattern of unprovoked police violence, and while the actual shooting came “out of the blue” in the sense that *all* of the police violence came out of the blue, it fit that pattern, and is therefore comprehensible.
I really don’t think you can draw a straight line between these things. To continue the poker analogy, going all in might be called “dramatically raising the stakes” but no one would use those words to describe the act of, say, betting one of one’s children. While the kind of casual brutality that Pirone and company displayed is ugly, it’s not surprising. Cops do that kind of shit all the time, and there’s a reason for that: they get away with it and they get away with it easily. If that was all that had happened that night, we would never have heard about any of this. Even if Mehserle had tased Grant (which would itself have been entirely uncalled for and a clear case of police brutality), this still would have hardly been a blip on the radar outside of the Bay Area and Mehserle would almost certainly not have been punished in any way. That is the straight line between shoving, punching, and tasing. But shooting someone is an entirely different kind of action.
Do I find Mehserle’s story that he thought he was holding his taser implausible? Yes. But I also find it implausible that a police officer would decide to straight-up execute someone in front of a crowd of people, several of whom (as Mehserle must have known in this day and age) would be video taping the incident. Those are my baseline levels of plausibility. And now looking at the various pieces of specific information I have:
1) Mehserle said afterwards that he thought Grant had a gun
Yes, that’s exactly the kind of thing that a cop would say to cover their ass after shooting someone without cause so this makes a lot of sense in the scenario where Mehserle intentionally shot Grant. But the reason a cop would say that is that, as any police officer would know, it works really well and police officers who make that claim get acquitted all the time. Meanwhile, how many police officers had been acquitted on the “I thought I was holding my taser” defense? So this action makes sense within Mehserle’s claimed scenario as well (though in a definitely unflattering way). I suppose that since in any scenario, we must accept that Mehserle is (at best) someone who would lie about the circumstances in which he shot someone, then that somewhat increases the plausibility of him being the kind of person who would intentionally shoot someone in the back. But overall, I don’t think this has much of an effect for me.
2) Pirone and Mehserle have testified that Mehserle said that he was going to tase Grant:
In the intentional shooting scenario this has an obvious explanation: they’re lying. But in video of the shooting, Mehserle and Pirone are (literally) on top of Grant and then both suddenly stand up. Pirone takes a couple steps back and then Mehserle shoots Grant. This behaviour makes a lot of sense in Mehserle’s claimed scenario. In the intentional shooting scenario, I think it only makes sense if a) Mehserle was intending to shoot Grant but lied to Pirone and really did tell him that he was going to taser him or b) if Pirone also knew (and one must assume approved) of Mehserle’s plan to shoot Grant. Option a is just weird and option b now has *two* police officers deciding to execute someone in front of a crowd of witnesses. Neither one seems very plausible to me.
3) Grant’s friend Carlos Reyes says that immediately after shooting Grant, Mehserle said, “Oh shit, I shot him.”
In Mehserle’s claimed scenario, this makes sense, of course. In the intentional shooting scenario, well, I’m not sure I can claim to be an expert on the psychology of police brutality, but here’s my (fairly well informed, I think) take: police officers brutalize people intentionally and they do so because they think those people deserve it (cf. the Stanford Prison Experiment for how easy it is to come to believe that). I don’t think that belief ever suddenly evaporates once the brutality has been done. I’d go so far as to say that – due to the fact that people hate being wrong and hate being guilty – people are almost always *more convinced* afterwards that their victim deserved it. Humans are rationalizing machines. So this would really only make sense if Mehserle had gone into some kind of fugue state and then returned to his senses after pulling the trigger. But I don’t think I’ve ever heard of a case of police brutality like that. Not impossible, but it doesn’t seem very likely either.
4) The videos of the shooting itself
I’ve probably watched every video there is a dozen times and it’s still hard for me to read Mehserle’s reaction as anything besides surprise. I’ve watched many videos of police brutality and his behaviour did not look like any of them. This is probably the fuzziest of all the “information” here, but that’s my impression.
I won’t say anyone is wrong to think that Mehserle’s claimed scenario is the less plausible of the two. But I do think that, despite it’s implausibility, the implausibility of the alternative means that when considering the question of whether Mehserle intended to shoot Grant, there is room for reasonable doubt.
I still don’t really like you but this is the smartest analysis I’ve read so far.
I’m good at analysis. When my premises are correct, I think I arrive at the right conclusion more often than most. But while I think I’m a very rational person, sometimes that just means that I’m a better rationalizing machine than others. The analytical skills that I’ve worked at over the years don’t help much when my premises are wrong.
And then there’s the meta-problem of what is being analyzed to begin with. Like I said above, after spending much time thinking about this verdict, it now occurs to me that it’s one of the less important things going on here. That’s not to say that I was wrong, but rather that the justice of this particular verdict is not particularly important when compared to the ongoing injustice that it’s surrounded by. And while I do think that the jury was right to acquit Mehserle on the more severe charges, the fact that a relatively small segment of the population incorrectly (in my opinion) considers this verdict incorrect is less important than the fact that a much larger segment of the population will use the verdict as an excuse to take this incident and file it away in the “Unfortunate stuff that happens” section of their brain and move on.
Unfortunately, I shared the predilection of most of my kind towards small problems which can be dissected and analyzed, over the kind of large amorphous problems which at the end of the day are usually more important.
That’s a shitload of reasonable doubt.
“That is the straight line between shoving, punching, and tasing.”
That “straight line” is itself a major problem; the only time a taser should be used is when the alternative is to use a gun. I’d tell you to ask Robert Dziekanski about that, but he’s not talking.
If Mehserle had seen a gun, using his taser might have been appropriate, because it might otherwise have been appropriate to shoot. (That is, if he hadn’t had a taser, it might have been appropriate to shoot.) That doesn’t justify anything, though: a police officer who cannot reliably distinguish somebody who is reaching for a gun from somebody who is not reaching for a gun is a police officer who is, in effect, going to shoot people at random (or, occasionally, merely tase them, but at a distance a taser is useless). So exactly what crime is it when one knows (or should reasonably know) that one is likely to shoot people at random, and then actually does?
There’s also those who are lionizing Oscar Grant as though he was a Mumia* or Peltier like revolutionary:
http://c4ss.org/content/3157
I don’t get this sentiment either-Oscar was a regular kid who was murdered in cold blood, intentionally or not. I agree with you that this is about who can police the police.
*Granted, I’m against his death penalty, but have doubts that he’s innocent. long story.
Jenny, I don’t see how the article you link justifies your interpretation of it. As for the liberal party-line on Mumia, where’s the evidence against him? Is there a single witness who wasn’t suborned or ignored by the police after having initially offered exculpatory evidence? It’d take a lot of work, I think, to challenge Mr. Lindorff’s or Mr. O’Connor’s books on the subject.
Whether it’s fair to characterize a member of a flaky cult as a revolutionary is a different issue.
I was actually referring to this:
“And the hard thing is that — whatever you or I think is the right thing — harsher sentencing for Mehserle doesn’t solve anything either; this whole “justice for Oscar Grant” rhetoric is ridiculous. Oscar Grant is dead. But how do we get to a place where “Oscar Grant” doesn’t keep happening? The problem isn’t Mehserle, but the fact that police officers can do the things they do and get away with it means that more “Oscar Grant’s” are all the more inevitable. Which is why that “wild west” quote from the oakland police chief pissed me off so much; it was Meherle and his squad that were running wild that night, as I see it, and if it hadn’t been caught on video (and if hundreds of people hadn’t been working to publicize this case for many months), nothing would have happened. And what will happen next time? Who will police the police? There are states that have laws against photographing the police, but if people on the train hadn’t done it, no *way* he would have been convicted of anything. It all makes me very tired.”
What I meant by “this whole “justice for Oscar Grant” rhetoric is ridiculous” was simply that a lot of people have turned the death of an innocent into a martyrdom, and I find that perverse. Part of my disgust is that the emotional satisfaction we apparently get from revenging our grief on its perpetrator is sick in another way; killing a killer doesn’t bring back the dead, and only perpetuates a cycle of violence. But the other part is that trying to end the police’s paramilitary style attitude towards black people / crowds is a fundamentally forward looking project: it isn’t Oscar Grant we’re thinking of, but the future innocents like him that are likely to be gunned down like he was. Mehserle is unredeemable, nor can revenging ourselves on hims solve anything, except insofar as it sets the precedent that you can’t shoot people for no reason, just because you’re a cop and they’re black. And insofar as that’s the concern, it seems to me that an involuntary manslaughter verdict — presuming that he spends significant time in jail, as seems likely — is a good start. It would be better, of course, if the jury acknowledged what seems to me to be the case, that the murder was not an accident. But the fact that they ruled it a crime worthy of substantial state sanction is an important step, and shouldn’t be underappreciated.
For seafan, Anon, James, and others, the comment-response I was writing has turned into a post of its own, which I’m still working on. So stay tuned for a response that will hopefully do justice to the care and thought with which you’ve commented (should be done today or tomorrow).