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[icon] Mehserle and murder/manslaughter? - Patti
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Subject:Mehserle and murder/manslaughter?
Time:08:12 pm
Bay area residents are probably familiar with Johannes Mehserle by now-- he's the (white) BART police officer who killed a (black) BART rider on NYE. Phonecam videos quickly emerged showing that the victim was shot in the back while being held face-down on the pavement by other officers. It appears that the whole thing was mishandled pretty badly by BART, but Mehserle was eventually arrested on murder charges.

It appears that there's some reasonable amount of evidence that his intent was to use his taser on the victim, and in the heat of the moment he pulled his gun and fired instead. The victim was definitely resisting and struggling.

It seems quite clear that he is guilty of something-- at the very least, of being a dumbshit. Is murder the right charge? I'm trying to figure out how this is going to play out, and I see a few likely outcomes:

- He's charged with murder and acquitted
- He's charged with manslaughter and convicted
- He's charged with murder and plea bargains to manslaughter

Things I think are less likely:

- He's charged with murder and convicted
- He's charged with manslaughter and acquitted

There are also certainly wildcard outcomes-- he dies in jail, skips the country, whatever.

I have no clue... is it possible, for him to be charged with murder and wind up convicted of manslaughter? Or is it a case where the state has to gamble on picking the right level and if they guess too high they lose?

I started thinking about this in terms of what will happen in my neighborhood under various circumstances. An acquittal is clearly the worst-case outcome-- we'd get pretty serious riots. A manslaughter conviction would certainly have people upset, but not to the same extent that they would be if he goes free-- we'll say protests with a chance of riot showers. A murder conviction will make the protesters happy, likely leading to partying the streets and scattered scuffles.

If you were the DA here, what would you do?
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loser_variable
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Time:2009-01-31 05:05 am (UTC)
Total lay understanding is that 1st degree murder is premeditated. So that seems right out. Second degree, I think, is non-premeditated murder during the commission of some other felony. So I think you got manslaughter, tops. If a jury buys that it was a total accident, I believe you can be found guilty of manslaughter but serve no time. Technically guilty but not deserving of FPYITA prison punishment.

IMO it's the cop who is gambling if he lets a jury have it. That is always rolling the dice big time, even though he only needs one juror to hang it. The DA will surely know the right level to go after. My wild guess is you'll see a plea.
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whipartist
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Time:2009-01-31 05:14 am (UTC)
I'm pretty sure that second-degree murder requires intent to kill, but doesn't have to occur in conjunction with some other felony. I could be wrong, though.

Because of the way this has been handled, and the community outcry around it, we have a mess on our hands if he doesn't wind up in prison. The BART police originally started out claiming that the witnesses were wrong about how it happened, but then multiple cel phone videos showed up that completely backed up the witnesses' reports and contradicted the police claims of what happened.
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loser_variable
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Time:2009-01-31 05:43 am (UTC)
You're probably right, I was flying off the cuff. Or it could vary state by state for all I know.

I understand the potential community impact. While you might want to prepare for it, it of course should not be something a jury factors in. But of course humans will be human and they probably will.

I served on a jury. What I learned is, I never want to have my fate in the hands of a jury.

I have to read up on this case, think I heard mention of it but I'm certainly not familiar. From your post, sounds like a tragic accident.
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dmorr
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Time:2009-01-31 05:45 am (UTC)
My wild guess is you'll see a plea.

Well, given that more than 90% of criminal cases are bargained instead of going to trial (in 2001 it was 94%, not sure what it is these days), I think that's a pretty safe wild guess.
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jcdill
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Time:2009-01-31 08:05 am (UTC)
I don't think we will see a plea, because if the DA lets him plead to manslaughter there will be riots, and threats against the DA for "letting him off", and he's not likely to plead guilty to 2nd degree murder.
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loser_variable
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Time:2009-01-31 02:55 pm (UTC)
Wow, better guess than I knew.

Seriously, I think a high visibility case may be different. I can believe 90+% get plead out because the typical arrest goes something like this:

You and some douche have some words in a bar and shove each other. They haul you in and charge you with A&B, public disorderliness, public drunkeness, terroristic threats, whistling on a Tuesday, creating a public hazard, and 9 other things the sum of which potentially amounts to 157 years in the stony lonesome. They offer to drop everything else if you plead guilty to misdemeanor disorderly conduct. That's how it gets done in my experience.
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phantomdancer
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Time:2009-01-31 07:00 am (UTC)
Murder is defined as the unlawful, intentional killing of another human being. for any murder charge to stick, the prosecutor has to prove intent. This seems like a hard sell. The only way I see that happening is by arguing depraved indifference and that also seems unlikely. For depraved indifference to apply the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. This seems difficult to demonstrate but could possibly result in conviction due to the public opinion.
Third degree murder, death resulting in the intentional causing of harm to the victim, would be possible, but CA has no distinction for Third degree murder in the criminal code.

More likely is manslaughter, and the defense will probably attempt to plea down to involuntary manslaughter. Legally, this seems closest with the truth of what happened. Watching the videos available, all you have to do is look at the cops face after the gun went off. He looked stunned to see a hole in the kid on the ground. It seems perfectly clear that he intended to pull out his taser and he pulled the wrong weapon. I don't know if any mistakes were made in police procedure, probably there was. Either way he didn't intend to kill the kid. I think the only way anything higher than involuntary manslaughter happens is if the prosecutor is able to demonstrate depraved indifference. Which will kick it up to second degree murder. Involuntary manslaughter generally carries a minimal jail term.

My prediction, voluntary manslaughter, but with a reduced sentence. Under a year, possibly time served. Charging the cop with murder seems excessive, but likely this was a move to placate the community as the DA knows full well he's not likely to get a conviction for that.
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whipartist
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Time:2009-01-31 07:12 am (UTC)
That makes sense.

Not knowing if it was possible to get sentenced to something other than the charges, one of my questions was whether the DA was playing a game of placating the community and protecting the officer. If it was all-or-nothing, then it would be possible to pick a set of charges that wouldn't stick, as a ploy to shut the community up while letting the officer get off. Clearly that's not the case.

How does recklessness factor into first or second degree manslaughter?
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phantomdancer
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Time:2009-01-31 07:22 am (UTC)
I am not sure how the conviction of lesser charges works in california, that's an arcane topic best left to actual attorneys.
With regard to recklessness, it can be an argument for involuntary manslaughter. However in California, if said recklessness can be demonstrated as depraved indifference, then the consequences (an upgrade to Murder 2) can be much more severe. so that particular razors edge is rather unforgiving. In this case, I think it was a simple error, a tragic error to be sure. Should he have visually verified his weapon? Absolutely. There were no circumstances that prevent him from taking 5 seconds to check out his weapon. This and likely only this will be grounds for recklessness. However from his body language it seems clear that he had no doubt as to what he was holding until after the weapon was discharged. That could cut both ways on him. Not sure how it will actually work out, but i'm pretty confidant in my prediction.
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bittercrackbaby
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Time:2009-01-31 05:35 am (UTC)
I believe it's up to the DA and Judge to rule on what the jury is allowed to convict of.

The Whipple dog mauling case Knoller was indicted and found guilty of second degree murder, and the jury could have considered involuntary manslaughter, but chose to convict on 2nd degree. The judge ultimately reduced it, but appeals restored it.

I forget, there was also a conviction where the DA rolled the dice and made the jury only consider murder or acquittal, they weren't allowed to consider voluntary manslaugher.
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dmorr
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Time:2009-01-31 05:40 am (UTC)
You can absolutely charge and prosecute murder and have the jury return manslaughter. It's even pretty common. There are situations where one side or the other will try to disallow the jury from that, but those are the exception.

I think murder 2 is definitely plausible as a conviction, but manslaughter is more likely. But to prove murder 2 you only have to convince the jury that he's lying about the taser thing, and that it's implausible that he could make a mistake like that. Plus the flight to avoid prosecution ain't gonna look good.
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whipartist
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Time:2009-01-31 05:44 am (UTC)
At least one of the officers claims to have heard him say, "I'm going to taze him". If that stands up, it seems like a good argument against murder 2.
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dmorr
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Time:2009-01-31 05:46 am (UTC)
If that was recorded, he's a lock for manslaughter. If not, a good prosecutor could work around that.

My prediction: plea to manslaughter with prison time.
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abostick59
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Time:2009-01-31 07:32 pm (UTC)
The officer who makes that claim is involved in major-league accusation of misconduct himself.
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jpmassar
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Time:2009-01-31 06:57 am (UTC)
Dan White was tried for murder but convicted of manslaughter.

Try here for lay definitions
of voluntary manslaughter, 1st and 2nd degree murder.

In light of what took place after Dan White's trial, I suspect
security around Oakland is going to make Guantanamo look like
Disneyland once the jury announces that they have reached a
verdict.

I suspect that he will be tried for 2nd degree murder but that
he will get voluntary manslaughter. I don't see how he can be
acquitted.

I wouldn't put any weight whatsoever on anything the other officers' involved now say about what happened. They are trying
to cover their asses as well, especially considering how incredibly badly they botched the immediate aftermath (C.f today's
(Friday's) San Francisco Chronicle article about this)
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jcdill
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Time:2009-01-31 08:20 am (UTC)
We don't have to worry about "security around Oakland" - at least not during the trial. There's no way this is going to be tried anywhere near Oakland - they can't possibly seat a jury in this area as everyone has heard about the case. My prediction is that he will be convicted of manslaughter at a trial held somewhere out in the boonies, and post-trial they will need a big police presence, all over Oakland to try to stem the rioting that will ensue. Good luck with that.
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jpmassar
Link:(Link)
Time:2009-01-31 04:30 pm (UTC)
My statement was that there would be massive security in Oakland at the point
when the trial results were about to be announced; I said nothing about
security requirements while the trial was going on.

So we agree.
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abostick59
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Time:2009-01-31 07:34 pm (UTC)
If I were the DA, I'd be sorely tempted to punt, and slide a short sword between the bars of Mehserle's cell and remind him what a good Roman would do.
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sugarbunni
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Time:2009-01-31 10:09 pm (UTC)
"The victim was definitely resisting and struggling"

What footage did you see? Because from the 3 different clips I saw Oscar Grant was clearly on his knees not only complying with police, but seemed to be pleading with them when they threw him to the ground, restrained him with a knee to the neck and Mehserle, quite methodically, pulled his gun from it's holster, aimed at Grants back and shot. Maybe you need to take a closer look at the actual footage, because Grant was not resisting at all.
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bellaballanda
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Time:2009-02-01 07:13 am (UTC)
I think the only reason we're seeing the murder charge is 'cause the guy wouldn't talk at all with the DA.... he clammed up, gave up his job, and didn't answer any questions... Had he done that from the start we *might* be seeing a manslaughter charge being brought but most likely an involuntary manslaughter...

My guess he pleads down to manslaughter....
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[icon] Mehserle and murder/manslaughter? - Patti
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