SAN FRANCISCO -- When Johannes Mehserle shot and killed Oscar Grant III on the Fruitvale BART platform in 2009, it was a mistake and a tragedy, his attorney said Wednesday, but it wasn't a case of gross negligence that would justify his involuntary manslaughter conviction.

Dylan Schaffer, who is representing Mehserle in his appeal to have his 2010 conviction overturned, said he's looked at similar cases and found manslaughter convictions only for incidents involving "extraordinary imprudence" -- a man pointing a loaded gun at someone's head, or handing a pistol muzzle-first to a drunk spouse, or a gambling den raid in which an officer broke down a door while holding a gun, which then went off.

"What did (Mehserle) do so utterly reckless to suggest that he literally did not care?" Schaffer asked a three-judge panel of the First District Court of Appeals.

He added that the ruling sets a precedent that makes it difficult for police officers to do their jobs.

"If the court is going to hold a police officer's pure error in pulling a gun rather than a Taser amounts to involuntary manslaughter, then we're done here," he said. "But it will completely change the nature of policing in this state."

Prosecutor Gerald Engler, of the state attorney general's office, which is handling the appeal, said there were "abundant circumstances" that could lead a jury to believe Mehserle acted with gross negligence. Those include that Grant had ceased to be combative and that other officers were holding him immobile in the moments before the shooting, giving Mehserle no reason to use his Taser.


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Mehserle said at his murder trial that he had intended to draw his Taser to use on Grant, but pulled his gun instead, and shot Grant in the back as he lay on the train platform.

"(Mehserle) created the situation, then responded to the situation by trying to use his Taser," Engler said.

Engler said multiple differences between the gun and the Taser -- including weight, color, safety switches and where they were holstered -- also may have contributed to the jury's finding of gross negligence.

Schaffer also said jury instructions were "an absolute mess" that may have misled jurors, and evidence related to other shootings in which an officer mistook a firearm for a Taser was not admitted at trial.

"The DA said it never happened before, and that was wrong," he said. "There have been two cases, and they didn't go to involuntary manslaughter."

Engler said there was no indication of gross negligence in the two cited cases.

Cephus Johnson, Grant's uncle, said on Wednesday that the family is outraged -- not only regarding the appeal, but also because they were not informed of the hearing.

"They snuck this in on us," he said. "They did it in a stealth way on purpose and by design."

As for the appeal, Johnson said, "This is the reason why people are being murdered."

"Officers are not being held accountable," he said. "He's already free ... and as it stands with the appeal process, it would be like he never did anything wrong from the very beginning."

Mehserle attended Wednesday's hearing with several supporters, but did not comment to media members.

Mehserle attorney Michael Rains said his client is living in Northern California in the "general Bay Area," has been doing work for friends and is "trying to maintain a low profile."

He said Mehserle would like to return to police work, something that is impossible unless his conviction is overturned.

"His goal is to ultimately get back into law enforcement, and depending on the outcome of this case, he will have to make some career decisions," he said.

Rains said that if the verdict is overturned, it could mean a new trial -- and there's also the possibility that prosecutors would drop the case.

"They could retry on the involuntary manslaughter charge, but given the politics, I would say they probably would not," Rains said.

If the appeal is successful, it will return to the Alameda County District Attorney's Office, which would not comment on the case while it is in appellate court.

If it fails, Schaffer said they will take the matter to the state Supreme Court, and possibly the federal courts.

Schaffer said he expected the appeals court judges to reach a decision well before the 90 days are up, possibly in a couple of weeks.

Mehserle was sentenced to two years in jail for the manslaughter conviction and was released in June 2011.

Contact Eric Kurhi at 510-293-2473.