New Year’s Day

As someone who has been on the inside of jury trials and numerous other criminal proceedings over the past decade, I know that it is most often folly to attempt to pass judgement on a case that one has not been a part of it. But I am going to go ahead and pitch in my two cents on the Johannes Mehserle trial anyway.

Mehserle was convicted July 8 of involuntary manslaughter in the death of Oscar Grant. Mehserle, a transit officer for the Bay Area Rapid Transit District (BART), pulled out his firearm and shot Grant once in the back, as Grant lay prone on the ground, mostly under the control of a fellow officer. Mehserle’s defense was that he had meant to fire his taser at Grant, not his .40 caliber handgun.

Grant was one of several celebrants pulled from a BART train at Oakland’s Fruitvale Station on suspicion of fighting and generally acting Wrongly in the early morning hours of New Year’s Day. According to witness statements and cell-phone videos, prior to being shot and killed by Mehserle, Grant was assaulted by BART officer Tony Pirone and possibly another officer: punched in the face several times, thrown against a wall, kneed in the face, and condemned as a “bitch-ass nigger.”

After Mehserle fired the shot that killed him, Grant said, “You shot me! I got a four-year-old daughter.” He died seven hours later.

Following the presentation of evidence in the one-month trial, Judge Robert Perry ruled that the prosecution had not presented sufficient evidence to justify submitting instructions to the jury on first-degree murder. The judge instead instructed the jury that it could find Mehserle guilty of second-degree murder, voluntary manslaughter, or involuntary manslaughter. It could also vote to acquit.

To find second-degree murder, the jury would need to conclude that Mehserle intended to kill Grant, but that he did so without premeditation or planning, nor did he act in the “heat of passion”; alternatively, it could find that the killing was the result of inherently dangerous conduct and reflected an obvious lack of concern for human life. To find voluntary manslaughter, the jury would need to conclude that Mehserle intended to kill Grant, but did so in the “heat of passion,” under circumstances that would cause a “reasonable person” to become emotionally or mentally disturbed. To find involuntary manslaughter, the jury would need to conclude that although Mehserle did not intend to kill Grant, he killed him anyway through recklessness or criminal negligence.

The jury convicted Mehserle of involuntary manslaughter, and acquitted him on both second-degree murder and voluntary manslaughter. From what I can gather, and based on the evidence presented, these verdicts were not unreasonable. There was both witness testimony and video evidence that indicated that Mehserle had intended to tase, rather than shoot, Grant, and that Mehserle expressed shock and horror immediately after firing the bullet into Grant’s back. To have returned a guilty verdict on either second-degree murder or voluntary manslaughter, the jury would have had to conclude that Mehserle indeed intended to shoot Grant with his .40 caliber handgun. The jury concluded instead that Mehserle meant to use his taser, but, like a reckless, criminally negligent imbecile, he drew and fired his handgun.

The first lesson we can draw from this is that if, as this jury implicitly so found, the feel and design of a taser is sufficiently similar to that of a handgun that an officer can without malice mistake one for the other, than the taser needs to be immediately and drastically redesigned, so that no officer, even one agitated, error-prone, and imbecilic, can in the future mistake his pistol for his fry-rod.

Do I think this verdict “just”? Not particularly. Seeing as how this trial took place in California, where we have the judge-made “felony murder” rule, the proper verdict, in my view, would have been second-degree murder on an implied malice theory, even though, as the jury so found, Mehserle intended to use his taser. However, to have reached such a verdict in such a case is at present impossible, due to the willful blindness of both law enforcement and prosecutors to the inherently deadly nature of tasers.

As I set forth here and here, tasers were originally sold to the public—and to law enforcement—as weapons that would be used only as an alternative to deadly force. That is, a taser would only be used in a circumstance in which an officer would otherwise use a gun. And since officers are trained only to fire a gun with the intent to kill, the taser would be used only when the only other alternative would be shooting and killing a person.

As it developed, this was all a lie. Tasers are now used basically whenever a cop Feels Like It. As recounted in the links cited above, tasers are routinely used in circumstances that would cause cities to burn, if firearms were employed instead. Try in your mind substituting firearms, in the following incidents where tasers were used: on a Seattle woman eight months pregnant, for refusing to sign a speeding ticket; on a 16-year-old Missouri youth, some 19 times, as he lay on the ground with a broken back; on a handcuffed and shackled Kentucky prisoner, in open court; on a frightened, learning-disabled, 16-year-old boy who, scared, runs from a traffic stop for an expired license plate; on a deaf, mentally handicapped man who did not emerge “quickly enough” from a public restroom; on a completely immobilized man strapped to a gurney in the back of an ambulance.

The reason why tasers were originally sold as an alternative to deadly force is because they themselves are a form of deadly force. Tasers kill people. Some years back, Amnesty International documented the deaths of 351 Americans who expired after being electrified by tasers. That number is rising all the time. Most recently, officers fried and killed an 87-year-old woman in Boring, Oregon. As is the drill in all of these cases, the compliant coroner immediately laid the groundwork for getting the taser off the hook:

An autopsy showed that Phyllis Owens, 87, suffered from heart disease. She also used a pacemaker.

Dr. Larry Lewman of the medical examiner’s office said that Owens had a history of heart disease, and a healthy person wouldn’t have died in similar circumstances. He said he has yet to determine what effect the stun gun had on the woman’s pacemaker.

The coroner neglected to mention that everyone who lives to be 87 suffers from some degree of heart disease, and that it is well known in the literature what tasers do to pacemakers: it seriously fucks them up.

As set forth here, the conscienceless multimillion-dollar taser industry, and its avid consumers and enablers in law enforcement, work like twelve bastards to excuse any and all taser deaths as due to some cause other than the taser. Though the simple truth of the matter is that none of these people would have died at the time but for the taser.

Here in California drunk drivers who cause fatal accidents are not infrequently hustled off to the big house for many years, convicted of second-degree murder. It works like this: if a motorist has suffered a previous conviction for driving under the influence, it is presumed that through the mandatory alcohol-awareness classes DUI offenders are required to complete, the motorist has learned of the inherent deadly dangers of driving under the influence. If s/he then goes out and drinks again, and in an accident kills somebody, s/he has acted with “implied malice,” and can go the pokey on second-degree murder charges, by way of the felony-murder rule.

Similarly, if law-enforcement officers were required, as part of their taser training, to face the fact that tasers are inherently dangerous, deadly weapons, then a nimrod like Mehserle, who pulls his gun, thinking he’s pulled his taser, and thereby kills somebody, would have to sink into stir on a second-degree murder conviction. Because even reaching for the taser, in circumstances that don’t require the use of potentially deadly force, evinces the implied malice necessary for such a conviction—inherently dangerous conduct, reflecting an obvious lack of concern for human life.

Someday we’ll get there. Not for quite a while, though. Because tasers are big business. And our culture suffers from serious uniform-worship syndrome. With Mehserle’s conviction for but involuntary manslaughter, the streak continues: no Los Angeles County jury has convicted a police officer of any sort of murder, for an on-duty killing, in more than 30 years.

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1 Response to “New Year’s Day”


  1. 1 Wolfman January 22, 2014 at 4:18 pm

    Mehreles was an obvious racist pig! He should still be in prison or dead.
    I just watched the movie and it appears that Oscar was a good kid in a situation theat almost every young black man is currently in! The killer will pay when he gets to the other side!


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