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OAKLAND — The murder trial of former BART police Officer Johannes Mehserle will be moved to another county, a judge declared Friday.
Alameda County Superior Court Judge Morris Jacobson informed attorneys late in the afternoon that the case against Mehserle, who is accused of murder in the Jan. 1 fatal shooting of Hayward resident Oscar Grant III, 22, should occur in another county because Mehserle, 27, cannot receive a fair trial in Alameda County.
Although Mehserle's defense attorney, Michael Rains, focused on what he claimed was a racial divide in the county regarding public opinion of Mehserle's guilt in the case, Jacobson's ruling focused on the repeated protests that have accompanied court actions and the "staggering" volume of media coverage of the shooting and events that followed.
Defense attorneys presented Jacobson with more than 4,000 stories spanning print, radio and television broadcasts related to the Mehserle case since the shooting. Jacobson also cited the numerous protests that have occurred in relation to the case and the death threats that have been made against Mehserle, his attorneys and his family.
"This court knows witnesses in this case are truly frightened by the violence, civil unrest and the death threats that have been directed at anyone in the path of this case," Jacobson wrote. "Without a doubt, potential jurors have the same fears."
By having those fears, Jacobson said, there is no way to
"This case may well be a close one and difficult for some or all of the jurors to decide," Jacobson said. "The jurors will likely be making a difficult decision that could go either way. These jurors will be exposed to protesters' angry demand for 'justice for Oscar Grant' each time they go in and out of the courthouse, a constant reminder of the impending civil unrest.
"These jurors also will be concerned about the real possibility more riots and violence depending on the verdict they choose," Jacobson wrote.
Jacobson's ruling was made less than a week after a hearing on a change of venue in the case concluded with prosecutors arguing that Alameda County is large enough to find impartial jurors and defense attorneys arguing that media coverage of the case had made it impossible to find residents who had not formed an opinion on the case.
Jacobson agreed that the county's size, as the seventh-largest in the state with 1.5 million residents, factored against a change of venue but said the media coverage and threat of violence far outweighed the population factor.
"Here, despite Alameda County's large size and metropolitan nature, the court is not confident that this factor has overcome the avalanche of pretrial publicity or the intensity of the community outrage," Jacobson wrote.
In making his decision, Jacobson had to consider six factors: media coverage, nature and gravity of offense, size of community, status of victim and defendant before the crime, politics surrounding the crime and possibility of violence during and after the trial.
Only one factor, the size of the county, could be used to support a denial of a change of venue, Jacobson wrote, but even that factor did not rise to the level needed to keep the trial in Alameda County.
"In conclusion, all of the above factors favor a change of venue save one, the size and nature of this County," Jacobson wrote. "That factor, alone, does not persuade the court."
Where the trial will be held will now be decided by Jacobson with help from the state Administrative Office of the Courts and after a hearing with prosecutors and defense attorneys.
Within two weeks, Jacobson should be supplied with a list of at most three locations that would "not be unduly burdened by the trial of the case."
The judge would then hold a hearing and consider arguments for each location and then make a decision.
According to court rules, the site chosen must meet a number of factors, including similar demographics to Alameda County, availability on the court's calendar and ability to handle the interest in the case.
Jacobson did not set a date for a hearing on deciding a new venue for the case and said, for now, a Nov. 2 trial date will remain on the court calendar although the case is not expected to begin by then.
The scene outside Rene C. Davidson Courthouse on Friday evening was calm, with only about six protesters showing up to speak out against the change of venue.
Staff writer Angela Woodall contributed to this report.
