Former BART Transit officer Johannes Mehserle was scheduled to appear in court August 6 for sentencing in the killing of Oscar Grant. That’s not going to happen. Mehserle’s defense attorney in yet another nimble legal stall asked for and got a sentencing delay, possibly an indefinite delay. The October push back date that Judge Robert Perry set as the possible new sentencing date is so iffy that may not happen.
Mehserle’s defense attorneys aren’t through. They are scratching and clawing to find any legal technicality in the jury verdict to get the conviction scrapped. The sentencing delay is part of the strategy to buy time to come up a plausible ground for appeal or the overturning of the involuntary manslaughter conviction. This is no surprise. Oakland civil rights attorney John Burris noted that in the three decades that he’s been involved with police malpractice cases he has yet to see a police officer convicted and serve lengthy time for the wanton killing of an unarmed civilian.
This is not hyperbole. The latest legal gymnastics by Mehserle’s team again points up the towering bar in place to jail cops for excessive force. The starting point is the prosecution. District Attorneys rarely prosecute police officers for excessive force. When they do they give their defense team wide latitude, even kid glove treatment in presenting their defense. They do this partly because they depend on police officers to provide evidence, witnesses, and write the reports used in their criminal prosecutions. Also, many prosecutors are former police officers or have close personal ties with police officers.
Prosecutors also give defense attorneys for police officers special treatment because of the crushing obstacles that they face when they try to put police officers behind bar for excessive force. They must spend countless hours, spend a small fortune of taxpayer dollars, to try these cases. They face withering criticism from police unions, police officials, and even city officials. Police defense attorneys are some of the best and most pricey defense attorneys around. They are expert at using every legal device, trick, dodge and maneuver in the legal books to create reasonable doubt that police officers should never be charged with deadly force against civilians. This includes discrediting videos, impugning the testimony of eyewitnesses, and turning the tables and painting their victim, in almost all cases a young African-American or Latino, as the aggressor. They play up any arrest or criminal record of or conduct by the victim. They argue that the violence by the officer was a legitimate judgment call.
In the Rodney King beating case in 1992 and the Sean Bell killing in New York City in 2007, defense attorneys turned the tables and painted King as the aggressor, claiming that the level of force used against him was justified. Early press reports repeatedly talked about Grant’s alleged criminal record. This fed into the stereotype of bad-behaving blacks, and that the victim somehow is responsible for the officer’s use of deadly force.
This tact serves two purposes. If the officer is convicted it maximizes the chances that a jury or judge will convict on a lesser charges. Mehserle’s conviction on involuntary manslaughter was the weakest of the four options the jurors had short of an outright acquittal. The other purpose is to massage the sentence. A judge has wide discretion in imposing a sentence. In Mehserle’s case it could range from the maximum of 14 years to time served and probation. The factors that the judge will consider are the defendant’s background, state of remorse, character references, prior record, and of course, his profession. A police officer ranks at or near the top of the pecking order of professions that weigh favorably for a defendant.
Mehserle quickly covered one base when he wrote an impassioned letter of regret for killing Grant. Much also depends on how vigorous the prosecutors push for maximum sentencing. Alameda County prosecutors will demand that Mehserle serve some prison time. How much time is still to be determined and how aggressive they’ll be in pushing the demand for maximum jail time is also to be determined.
Prosecutors ceded vital ground to the defense in agreeing to the indeterminate delay in the sentencing. Mehserle’s attorneys will take full advantage of the delay to make the case that Mehserle should get little or no jail time. The Grant case was a near textbook example of how the rare time police officers are tried for murder or the overuse of deadly force, a conviction doesn’t end things. Defense attorneys will still relentlessly maneuver to get officers off the hook for their crimes. The delay in the sentencing of Mehserle is proof of that. It’s yet another outrage.