OAKLAND -- Whether former BART police Officer Johannes Mehserle is released on bail Friday will largely depend on whether the judge who heard the jury trial believes an appeal of the involuntary manslaughter conviction will be successful.
Mehserle will ask Los Angeles Superior Court Judge Robert Perry to release him on bail while he appeals, arguing that he has a high likelihood of successfully overturning the conviction reached by a jury this year for the shooting death of Oscar Grant III.
Though Perry must consider two other factors -- flight risk and danger to society -- in deciding if bail is warranted, it will be the judge's view of the future appeal that will be the deciding factor, legal experts said.
And that decision, experts said, will probably go against Mehserle.
"I'd be very surprised if bail was granted," said Robert Weisberg, professor of law at Stanford Law School and director of the university's criminal justice center. "At this point, the phrase 'don't press your luck' comes to mind."
In making his case for bail, Mehserle defense attorney Michael Rains has argued that his client will make a strong case that Perry erred in several decisions during the jury trial. As a result, Rains has said, "substantial legal issues" have been raised for an overturning of the involuntary manslaughter conviction.
Prosecutors argued in legal filings late last week that most of those issues were already dealt with
"Two defense issues remain "... neither raises a substantial legal issue for appeal," wrote deputy district attorney David Stein and senior deputy district attorney Michael O'Connor. "Defendant has not shown a substantial legal question that will result in reversal."
Mehserle was found guilty in July of involuntary manslaughter for fatally shooting Grant with a bullet to his back as the 22-year-old Hayward resident lay prone on the Fruitvale BART station platform in Oakland. The death was captured by dozens of cell phone and camera video recorders.
Mehserle said during the trial that he made a mistake and believed he was shooting his Taser at Grant's back instead of his gun. A Los Angeles jury appeared to believe Mehserle, finding the 28-year-old guilty of involuntary manslaughter instead of murder.
But the lesser conviction did not please Rains, who argued both after the verdict and last month after sentencing that his client did not deserve any punishment for what was a mistake.
Though Mehserle was sentenced to two years in prison for the crime, he will likely only serve seven months because of credits for time served.
Nevertheless, Rains has argued that he wants his client freed on bail because, in part, an appeal process will most likely take longer than seven months to complete.
Weisberg said that given the short prison sentence and the issues already addressed by Perry during sentencing, the chances of Mehserle being released on bail during an appeal are slim.
Having a defendant released on bail after a conviction is not a right as it is while a defendant faces trial, Weisberg said. As a result, he said, it becomes harder to argue that bail should be granted.
"It's hard for him to say now that it is a right to get out, it is more of a privilege," Weisberg said.
In addition, he said, the judge will probably consider the outrage a release would cause and consider Mehserle's safety.
But Weisberg said the biggest factor will be Mehserle's chance for winning appeal.
"The biggest issue, as the prosecutor says, is that he does not have that great a case on appeal," Weisberg said.