Alameda County Superior Court Judge C. Don Clay has said he has no doubt, based on the evidence presented during a preliminary hearing, that former BART police Officer Johannes Mehserle intentionally meant to kill Oscar Grant III.

"There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun and not a Taser," Clay said Thursday after a two-week preliminary hearing. He ordered Mehserle held over for trial.

Judges are entitled to their opinions and it's normal for them to make public statements after issuing a ruling.

Yet given the volatility of this case, Clay's comments were ill-advised. In fact, he may have helped the defense's case for moving Mehserle's trial out of Alameda County — a strategy in the works at the moment.

I can hear the argument now: If you've got judges saying they think a defendant is guilty after the prelim, what's the likelihood he can get a fair shake in the same courthouse during the trial? That, on top of the rioting and the rush to judgment in some sectors of the media?

Unlike Judge Clay, I have a lot of questions about this mess. The preliminary hearing shed no light on why Mehserle shot an unarmed man in the back while he lay facedown on the Fruitvale train platform.

The one thing that is clear, to me at least, is that the officers who responded to the call about a fight on the train have been embellishing events in an effort to cover their rear ends.


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Their intent clearly is to make the situation on the train platform appear more chaotic and life-threatening than it was in the moments that led up to Grant's shooting. This is being done to justify their over-the-top response.

Yet this creative retelling is not corroborated by videos or statements from some of the passengers who stumbled upon this horrific event, which deputy district attorney David Stein did an excellent job pointing out.

Sure, it was New Year's Eve. Yes, there was a train full of drunk people. As we learned during the preliminary hearing, some of them were shouting not very nice things at the BART officers, calling them fake cops and whatnot.

But there is no evidence that hordes of unruly passengers were rushing off the train to the platform, as some of the officers have said.

BART Officer Marysol Domenici testified she so feared for her life she would have liked to have had at least 100 other officers on the platform.

In fact, based on accounts from a number of witnesses, the situation leading up to the shooting was fairly under control. The BART officers had Grant, who had apparently been in a fight on the train, and his friends, against a wall.

What is beginning to emerge is a picture of inexperienced police officers who inflamed what should have been a fairly routine citation or arrest with unnecessarily aggressive, physical behavior.

Two female passengers testified that they began recording the events because they thought the BART officers were acting too aggressively toward Grant and his friends. One of their videos shows BART Officer Anthony Pirone charging toward Grant as he sat on the floor with his back against a wall.

Both Karina Vargas and Margarita Carazo testified that Grant never resisted arrest nor did he seem to be acting aggressively toward the officers.

BART Officer Pirone, whose story has gone through a few revisions, also testified that Grant posed no threat in the moments before he was shot. He first told investigators Grant had kneed him in the groin, but said on the stand he couldn't remember the incident.

We still haven't heard Mehserle's explanation for shooting Grant. He did not take the stand, which is quite common in preliminary hearings.

We know from documents filed by attorney Michael Rains that Mehserle's defense is this: He accidentally pulled his gun instead of his Taser.

That story would be much more believable if Mehserle had told it from the beginning, when he hired his first lawyer. And if Mehserle hadn't said immediately after the shooting that he thought Grant was going for a gun.

Attempting to justify Grant's killing by blaming him and his friends is not going to fly with a reasonable jury.

I do agree with Judge Clay on this point:

"These young men did nothing to warrant the use of deadly force."

Tammerlin Drummond is a columnist for the Bay Area News Group. Her column runs Wednesdays in Metro and Sundays in Opinion. Reach her at tdrummond@bayareanewsgroup.com.