Activists renewed their call Thursday for Alameda County District Attorney Tom Orloff's resignation, retirement or recall, claiming he was slow to act on the fatal shooting of an unarmed, prone man by a BART police officer Jan. 1.
Orloff got an Alameda County Superior Court judge's signature on an arrest warrant Tuesday for now-former officer Johannes Mehserle, one day after BART officials announced they had concluded their investigation and sent him the evidence they had gathered. But members of the Coalition Against Police Executions said Orloff should have filed murder charges against Mehserle as soon as cell-phone videos of the shooting emerged, rather than waiting for police to investigate.
"He didn't need the case to know a crime had been committed," said Jakada Imani, a CAPE member and executive director of the Ella Baker Center for Human Rights, on a conference call with reporters Thursday.
"The silence is what matters to people, the silence was deafening for quite awhile," added CAPE spokesman Mervyn Marcano. "What's clear is that the charge document does not have a whole lot of information other than what's on the video. What the charge document shows is what's shown on the video: that his hands were behind his back, that he was restrained while he was shot. ... That is information the district attorney had before, that is information that is actionable, that is information the district attorney should've acted on."
That assessment is way off-base, UC Berkeley Boalt Hall Law School Professor Franklin Zimring — a criminal law expert — said Thursday.
"At the beginning of this year, I thought that the district attorney's office in Alameda County was one of the better departments in the United States, and nothing that's happened since New Year's Eve has changed my view," he said, adding that if anything moved too slowly in this case, it was the Oakland Police Department's involvement. "The missing moving parts were in police investigation. There was nothing slow and nothing dysfunctional, at least in the public accounts, with what went on in the Alameda County District Attorney's Office."
Orloff didn't return a call and an e-mail seeking comment Thursday afternoon.
The activists noted Mehserle was arrested Tuesday night in Nevada, and Marcano suggested he should have been held in town as a flight risk. However, a person can't be detained as a flight risk until after they've been arrested; once arrested, they must be charged within 48 hours, or set free.
Sheilagh Polk, also with CAPE and a community organizer with the Black August Organizing Committee, said Orloff's filing of a murder charge against Mehserle this week "does not excuse 20 years of inaction and ineptitude in cases like this one" involving police abuses.
Orloff's office spent years trying — and then after a deadlocked jury caused a mistrial, retrying — three Oakland Police officers known as the "Riders" who stood accused of abusing people on the streets. The second trial ended in a mistrial as well; Orloff in 2005 finally asked a judge to dismiss the charges, saying the two mistrials had convinced him it wasn't possible to prove the officers' guilt to a jury beyond a reasonable doubt. He said at the time that the problem was convincing jurors to convict respectable-looking police officers of crimes when the supposed victims — many of whom had criminal histories or links to the street drug trade — don't evoke sympathy.
"After four years and two trials — two failed trials, mind you — what we see is that District Attorney Orloff is 0-for-2, that he doesn't have a good record of prosecuting police abuses," Imani contended Thursday, adding the Riders case "should've been a slam-dunk case and wasn't handled in a slam-dunk way."
Imani also blamed Orloff for the fact that community members were locked out of the secure courtroom in which Mehserle's arraignment was held Thursday morning in Oakland. Actually, court security decisions are made by judges and bailiffs from the Alameda County Sheriff's office, not by prosecutors.
"The district attorney hasn't so far fully redeemed himself," Imani said, adding perhaps news media cameras should be allowed into Mehserle's future hearings — also a decision made by judges, not prosecutors.
Polk said CAPE stands by its demand for Orloff's departure even while urging him to conduct a full, thorough probe of other BART police officers' actions at the Fruitvale BART station on the night Oscar Grant III was slain, as well as to conduct community meetings. "If Tom Orloff steps up to the plate and deals with this in a way that is transparent and effective ... it's very likely that demand would shift," she said.
CAPE also demands creation of a citizen review board empowered to determine whether BART police are needed at all, and if so, whether they need to carry firearms; and the creation of "community-based healing centers" to address local residents' simmering rage over this and other allegations of police abuses.
Imani said CAPE showed discipline and unity at its rally and march Wednesday in downtown Oakland.
"We felt great about the message we delivered," he said. "After our dispersal, some folks who were with the CAPE march and some who were not, who just showed up, decided they did not want to disperse."
CAPE's security teams and others tried to persuade these people to leave or at least remain peaceful, he said, but they chose not to. "Others wanted to carry out other actions and they did. Although we struggled with them, there was nothing we could do to prevent them from carrying out their actions."
Several downtown businesses' windows were smashed Wednesday night; at least 18 people were arrested, including at least six juveniles.
CAPE remains in contact with Mayor Ron Dellums' office and Oakland Police, Imani said: "We're hard at work developing our future strategy, we are not announcing any further actions at this point."