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After ruling today that disgraced BART police Officer Johannes Mehserle will, in fact, stand trial for the New Year's Day killing of Oscar Grant, Superior Court Judge C. Don Clay said the following.
There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun and not a Taser.
Yipes! Well, there's no need for a murder trail now, is there? (You real law types can explain it in the comments, please.)
Anyway, Mehserle is still free on $3 million bail. He'll return to court on June 18 for arraignment.
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Judges make comments like this frequently. An impartial judge, in my opinion, is uncommon.
intended to fire gun = possibly murder charge
mistakenly fired gun instead of taser = manslaughter
i think?
meaning, if he didn't believe Mehserle intended to fire the gun and it was by mistake, he would only be tried on manslaughter and not murder.
but i'm not an attorney and could be totally wrong.
and all in context of deciding whether or not to bind him over for a trial. they may get another judge now or a change of venue at the actual trial.
he will still be tried for murder; the judge's comment simply makes it clear that a murder conviction is unlikely
I'm not a lawyer, but my research indicates that reaching for a gun, that is, "intending to hold a gun," is substantially the same as intending to shoot it, especially for a trained officer.
The judge is not allowed to comment in public about the facts of an ongoing trial. He may talk about relevant law but not the case itself. He should recuse himself and another judge take the case.
He didn't comment in public. He was giving his reason for his decision as he was announcing that decision in court. And I'm not sure how Alameda County works, but if it's like SF, he won't be hearing the case anyway.
Um, lawyer here, if he announced it in open court, he announced it "in public." I don't believe Alameda singly assigns criminal cases so this judge will likely not be presiding over the trial. Poor choice of words though. If he had simply said "I find that the preponderance of the evidence supports the allegation that...." as opposed to "no doubt in my mind," we wouldn't be having this discussion.
@jcs - perhaps you're being a little to technical with your definition of what's "public." The rule that a judge should not publicly comment on a pending case certainly does not prohibit the judge from commenting on the case in his courtroom.
Um, lawyer here as well. What I got from my ethics class suggests that the rule re judges speaking in public referred to making comments to reporters, etc., not comments made in court while making a ruling, and I am well aware that the courtroom is public.
There is no difference - the issue is partiality and bias, not the fact he was sitting on the bench when he said this. A judge has no less right to make partial comments in private than he does in public. And I think my comments made clear that he could have chosen better words to communicate what you (and I for that matter) think he was trying to say.
I hope more non-lawyers speculate about this, I've learned so much already!
Okay, how about a lawyerly opinion?
This was a preliminary hearing to determine if sufficient evidence exists to even have a trial. The judge decided yes, there was sufficient evidence. In fact, he went so far as to say there was more than sufficient evidence: that there was no doubt in his mind that the defendant did it.
Is there anything improper about this? Not really. The judge, of course, is not the jury. He can't convict the defendant. In fact, this judge probably isn't even the judge who will conduct the trial of the case. Cases routinely are assigned to a different judge for trial than for a preliminary hearing.
A judge has to be really careful about what he or she says in front of a jury. If Judge Clay said this in front of a jury, it would be a mistrial, no question. But he didn't.
All the judge's statement does do is complicate the jury selection process. The defense is going to have to make absolutely sure that nobody ends up on the jury who read the judge's statement.
Absolutely spot on.
I believe the standard for preliminary hearings is "probable cause to believe" that the crime occurred, correct? If Judge Clay thought the evidence didn't show there was probable cause to believe Mehserle committed the crime of murder (not manslaughter), then he wouldn't have ordered Mehserle to stand trial. The only weird thing here is that Clay took a step beyond "probable cause to believe" and said he's absolutely sure Mehserle is guilty. But as others have noted, Clay probably won't preside over the trial.
Simple question from a pure newbie, when you say that "Mehserle is still free on $3 million bail" does it mean that someone (or some people) actually spent $3 million for him just to avoid being in jail now?
If yes that's totally crazy no?
Barry Bonds got him out. Er, I mean some bonding company. He or his family probably had to put up substantial assets (like a house) and a bonding company posted the bond to set him free.
Thanks for the info. Do you get it back if you are not convicted? Is it only to avoid being in jail during the trial?
you get it back even if you are convicted. It's just to make sure you show up for trial and don't flee to Chile.
Oh I get it! I feel less ignorant now.
It escapes basic comprehension that Mehserle could possibly be stupid enough to intentionally shoot Grant in the back, in front of full trains of BART passengers, with security cameras rolling, maybe a dozen other BART police and hundreds of witnesses.
The only thing more idiotic is that some drunk, doped up moron resisted arrest and well, accidents happen.
It's not exactly like they hauled him away and he "bumped his head" on the way to the station.
I'm glad they are going to try him for murder because it is not going to stick. When does the trial get off the ground? I'll be avoiding Oakland more so than usual because of this stupidity.
Just because he's tried for murder doesn't mean he has to be convicted of murder. He can also be convicted of any lesser included offense including, for example, voluntary manslaughter.
I was drinking buddies with Mehserle in high school, for want of more entertaining buddies.
1) Mehserle hated cops and the man back then.
2) He had no drive
3) He was somewhere between smart and dumb
4) He wasn't racist
5) He was a total goofball
6) He did not study
My take on the whole situation is that he didn't pay attention during the scant firearms training BART gave him, and he was way outside the range of things he had been trained for or experienced when New Years Eve happened. I don't think he intended to use his gun. I do think he is just that dumb that he would reach for his taser and come up with his gun, and not engage the part of his brain that might notice the difference between them before pulling the trigger.
This sounds like the most honest assessment yet. Most of the guys I know who went on to become cops and rent a cops were the biggest troublemakers and generally not so bright.
I'm no lawyer but I read up on the basic differences between murder and manslaughter and this seems to fit manslaughter more closely. If more people would remove the black and white from this, they might be able to see that.
The judge was not commenting in public, this was done at the pre-trial. His job was to determine if the case should even move forward or be dismissed. He felt strongly that the evidence indicated it should move forward and stated so. His decision was that the scumfuck BART cop should stand trial for murder, nothing more. Now he will, but not in front of this judge, his job is done.
Whatever the judge says, I hope the big bully goes to jail forever.
Yeah, the "big bully" wanted to show his authority by shooting an unarmed man in the back in front of dozens and witnesses and cameras. Makes a lot of sense, right? Even middle school bullies know better than to smack the President of the Math Club (which Grant certainly wasn't, but whatever)in the face in front of faculty.
I know some people want to paint this tragedy as part of a larger issue, but I believe this was garden-variety incompetence. Shame that it's rife in the ranks we should be able to count on most.
He deserves to go to jail for killing a man, but when he gets out in 10-20, I won't be rioting. Should be interesting to see who is.