OAKLAND — Former BART police Officer Johannes Mehserle must stand trial for murder in the death of Oscar Grant III, a judge declared Thursday, saying evidence presented during seven days of hearings convinced him the shooting was intentional.
"There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun and not a Taser," Alameda County Superior Court Judge C. Don Clay said. "These young men did nothing to warrant the use of deadly force."
Grant, of Hayward, was killed during the early hours of Jan. 1 as he lay prone on the Fruitvale BART station platform with at least one arm behind his back and another officer's knee on his neck.
The shooting was captured by at least a half-dozen passengers who began recording the actions of BART police officers with cell phone cameras and digital cameras because many said they believed the officers were abusing their authority.
Mehserle quit the BART police force shortly after the killing to avoid giving a statement to investigators and was arrested Jan. 13 in Nevada. His defense attorney, Michael Rains, chose not to have his client take the witness stand during the preliminary hearing.
That lack of statement from Mehserle played a role in the decision to push the case of murder to a jury, Clay said.
While at least one other officer said he heard Mehserle announce his intention to Tase Grant, Clay said no one can say for sure what the 27-year-old was
"This case is really not about the videotapes. It boils down to the state of mind of Mr. Mehserle," Clay said. "It is clear Mr. Mehserle shot Oscar Grant. It is clear Oscar Grant was unarmed.
"This argument is totally dependent on what the defendant's state of mind was "... the defendant didn't give a statement," Clay continued. "If I heard directly from the defendant, maybe I could draw these conclusions."
But without a statement from Mehserle, Clay said he could conclude only that the former officer intended to kill Grant, especially given what another officer testified he heard Mehserle say before and after the killing.
Officer Tony Pirone testified that he heard Mehserle caution him that he was going to Tase Grant before the shot fired. But after the shooting, Pirone said Mehserle told him that he thought Grant was going for a gun.
Clay said those two statements were "inconsistent." If Mehserle thought Grant was going for a gun, then he is trained to respond in kind.
Clay also questioned the testimony of other BART officers as well, appearing to agree with Deputy District Attorney David Stein that their testimony exaggerated the situation on the platform in hopes of justifying their actions. And he said the BART officers who responded to the scene made matters worse by the way they treated Grant and his friends.
At one point, Clay compared the BART officers to Oakland police and said if Oakland police handled the situation it would not have become as "elevated."
Clay's ruling came about a half-hour after he denied requests by Rains to continue the preliminary hearing and demanded the defense attorney end his case immediately.
Clay said that the witnesses Rains wanted to call brought no relevance to the case and that the video expert he had on the witness stand had already said everything that pertained to the shooting.
Clay's staunch denial of Rains' request to continue the preliminary hearing sparked anger from Mehserle's father, who sat just one row in front of a handful of reporters.
"There is no justice in Oakland. This town is a sham," the father said as he glanced at the reporters. "S-H-A-M. Sham."
Outside of court, Grant's family cheered Clay's ruling but cautioned that justice has yet to be served.
"We realize that this case is not over but we are certain we will get justice whether it be God's justice or man's justice," said Cephus Johnson, Grant's uncle. "This was no accident, my nephew; my sister's son was murdered."
Wanda Johnson, Grant's mother, said she was hurt and saddened by the entire incident but said she hopes the upcoming trial will prove police officers must be sensitive when responding to situations.
Johnson also called on BART to take action against some of the officers who responded to the scene on New Year's Day.
"BART needs to take a stand. Something needs to be done," she said.
Christy Crowder and others celebrate the decision in Oakland Thursday that former BART Police Officer Johannes Mehserle will stand trial for murder.