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;


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;


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;


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.