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OAKLAND — Alameda County Superior Court Judge Morris Jacobson was right not to consider the possibility of civic unrest on the streets of Oakland when setting a $3 million bail for the former BART police officer accused of killing 22-year-old Oscar Grant III, defense attorneys and legal experts said Monday.

Their comments came in response to a statement from Mayor Ron Dellums late Friday that said "due process of law must balance the rights of an individual with the rights (of) the entire community" and suggested that setting bail at any amount jeopardized Oakland's public safety.

Johannes Mehserle, 27, the officer accused in the case, remained behind bars Monday, but the fact that bail was set at any amount angered some people outraged by the Jan. 1 shooting.

Setting bail is determined by whether someone is a flight risk or a danger to the public, sources said.

"Denying Constitutionally required bail to a defendant because of public outcry places the law in the hands of the public, rather than the courts," Alameda County Public Defender Diane Bellas said in an e-mail. "Constitutional rights apply to and protect all of us, whether we are respected or despised."

The Mehserle case sparked massive outcry after video of the shooting surfaced. Breakaway demonstrators turned violent Jan. 7 and again Jan. 14. On Friday, after bail was set, police stemmed a repeat riot and arrested nine people, according to Dellums' office. One vehicle was reported damaged.


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Dellums issued a statement at 4:59 p.m. Friday saying that "bail is almost always granted unless a defendant is viewed to be a flight risk" and urging people to stay peaceful.

Just hours later, however, the mayor deemed the court's actions a threat to public safety: "Given the high level of emotion surrounding this case, the justifiable outrage about the death of Oscar Grant and the fact that our city has been beset three times this month by civil unrest related to this case, I believe that granting bail in any amount for Johannes Mehserle jeopardizes the public safety of our community. Due process of law must balance the rights of an individual with the rights (of) the entire community."

Asked about the latter statement Monday, Dellums spokeswoman Karen Boyd said the mayor was in no way trying to hold sway over the court.

"He has respect for the court and for the judge, but he also has a larger context which he's concerned about — and that's the overall impact on public safety from all these events as they've unfolded," Boyd said.

Golden Gate University law professor and Dean Emeritus Peter Keane said that determining whether to grant bail "always goes to whether the individual involved is a flight risk or is a danger to the community. Those are the only factors."

As for any danger rioters might pose to the community if a defendant is granted bail, "the judge would not have had any kind of legal power or authority to use that as a consideration," Keane added. "In fact, if the judge had, he would've been reversed if it was taken to an appellate court."

However, Keane did not think Dellums' earlier and later statements Friday were necessarily inconsistent.

"What he's saying in one statement is he's recognizing the reality of the factors that go into or don't go into a judge setting bail "... and afterwards he was expressing a real fear and concern, based on the riots that had erupted a couple of times, that riots and danger to the community could result," Keane said. "He articulated them in the wrong forum in terms of the court setting bail, but clearly his concerns are genuine."

Reach Kelly Rayburn at 510-208-6435.