Above, And Below, The Law

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25 Responses

  1. Dwight Brown says:


    You are one of nature's noble men. Thank you for this post.

    I am wondering about something that is not specifically relevant to the Mehserle trial, just based on my reading of the jury instruction on murder: could someone who kills another individual while driving drunk be prosecuted for murder in California?

    It seems to me that the jury instruction could sustain this: clearly, a death would have been caused, and without lawful justification. As for malice aforethought, I think one could argue that the implied malice standard is met: intentional commission of the act (DWI), natural and probable consequences dangerous to human life, and knowledge that the act was dangerous to human life. The only thing that I think there's wiggle room on is deliberate disregard, and I don't know that I see much wiggle room there.

    (Here in Texas, there have been some murder prosecutions that I'm aware of for deaths caused in DWI accidents. However, to the best of my knowledge, all of those prosecutions have been based on the defendant having multiple DWI convictions; Three is the magic number that elevates DWI to felony status, and these prosecutions have all been based on deaths resulting from third or subsequent DWI offenses.)

    (If you think this is too far afield, Ken, I'll hold no grudges if you delete this comment.)

  2. John David Galt says:

    I'm sorry, I can't agree with this. The problem with giving a law enforcement officer the presumption of innocence is that the presumption of another person's innocence is also in play here, and the law enforcement officer's license to use force is conditioned on respecting that other person's presumption of innocence. No one with a badge should ever be excused un-called-for violent behavior because he/she is "only human." Or at the very least, the officer who is so excused should lose the badge forever.

  3. Ken says:

    The problem with giving a law enforcement officer the presumption of innocence is that the presumption of another person’s innocence is also in play here, and the law enforcement officer’s license to use force is conditioned on respecting that other person’s presumption of innocence.

    So it is your position that the presumption of innocence does not apply to police officers in excessive force prosecutions?

    What is the specific legal basis for that belief?

  4. Patrick says:

    To whom would you give the power to decide these matters, if not a jury Mr. Galt?

    Or at the very least, the officer who is so excused should lose the badge forever.

    Johannes Mesehrle is now a convicted criminal, who will go to prison. Believe it or not, involuntary manslaughter is considered a serious felony. As a felon Mesehrle has lost his badge forever.

    Mission accomplished.

  5. Ken says:

    To be technical, he resigned before he was tried.

    (To be hyper-technical, he is not convicted until sentenced.)

    But yes, he won't be wearing a badge again unless he overturns this on appeal.

  6. Patrick says:

    Shut up.

  7. Sam says:

    A BART (transit) cop committed this murder; not an Oakland Police Officer.

  8. Piper says:

    The verdict is probably the correct one, but it occurs to me that perhaps we should hold the officers we trust to use lethal force to a higher standard. Maybe that's just the pissed off piece of me, as my untrained eye didn't even see a reason for him to be drawing a Taser on Oscar. That kid should still be alive, and 2-4 years with time off for CA's overcrowded prisons seems like a travesty. Just one of justice and not the law.

  9. Piper says:

    5-14 with the Gun Enhancement is better. The press had been saying 2-4 years.

  10. RLMullen says:

    I have an issue with the following:
    "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment."

    Should we not hold trained law enforcement officers to a standard somewhat higher than "average disposition" when considering the 'heat of the moment' stipulation? Why would a jury even allow passion to override judgement when the defendant has been specifically trained to use rational judgement in the very situation where the crime occurred?

  11. Base of the Pillar says:

    Nothing says "Our community has been robbed of justice" like a pair of looted high tops.

  12. Greg Conen says:

    What are the odds that a normal person would win on the "I meant to pull my taser" defense?

    Also, do we now get to sue the police department for failing to train it's police officers to distinguish between a gun and a taser?

  13. Patrick says:

    The BART authority, as well as Alameda County, will be sued civilly if they haven't been already Greg. That case will in all likelihood settle for a substantial amount of money. Grant's family is represented by counsel, and yes, improper training will be an issue in the case.

    To name other infamous California cases where many perceived injustice in the criminal trial, both OJ Simpson and Rodney King had civil sequels which didn't go so well for the defense.

    The case will settle because the relevant NoCal authorities cannot suffer the political damage that a trial would inflict.

  14. Patrick says:

    And Ken, I should point out that I absolutely think this case was a travesty, in that the true, and indisputable, facts are that ex-Officer Mehsehrle pulled his gun out in a moment of wrath and shot a defenseless man in the back. He meant to do it.

    I've seen the video. The idea that the defendant actually meant to pull his TASER, and in the heat of the moment failed to note the tactile difference, got his index finger around the trigger guard, and fired as a reflex, is absolutely ludicrous. One in a trillion. The idea that a hotheaded officer pulled and fired his gun in frustration at a wriggling suspect who'd been uncooperative and angered the cop by flaunting his authority? Utterly plausible.

    Because that's what happened.

    This was compromise verdict, among jurors who believed the cop guilty of voluntary manslaughter or murder, and slave-mentality jurors who refuse to believe that a cop is ever wrong about anything.

    I am more certain this is what happened than I am that Pluto has a moon called Charon, because the photographic evidence is better, and because I understand human nature far better than I understand the depths of space.

    Yet I accept Charon's existence, beyond a reasonable doubt.

  15. Ken says:

    Patrick, I suspect that your disagreement is at least informed by what the law is, as opposed to gut-level instincts about what the law ought to be. That distinguishes it from most critiques.

    I think that society, and juries, cut cops far too much slack — both when they are testifying for the prosecution, and when they are defendants. But I also recognize that the test of a system is how it treats prosecution of despised people. In this context, this cop is such a despised person. Is Murder 2 (on the theory that he lost his cool and deliberately shot Grant, without provocation or belief in self-defense sufficient to reduce it to voluntary manslaughter) more plausible? Quite probably. But I am not ready to accuse the jury of a slave mentality, not having seen all the evidence myself.

  16. rustbelt says:

    I actually agree with Mr. Galt here – is "I'm a police officer" a statutory defense against a criminal charge? If not, that information should not be admissible because it is prejudicial and leads to demonstrable dissimilarities in punishment for similar crimes. "Innocence" should not be available to a person acting under color of authority, because they are not acting as an individual but as an agent of the government. I realize this is not a current legal argument, but the the previous episodes of non-convict-able abuses by law enforcement (in the civil rights era) required federal statutes and fairly egregious breaches of well-understood law to remedy.

  17. Brandon says:

    Does anyone honestly believe that he "accidentally" brandished and fired a deadly weapon?

  18. Patrick says:

    Ken, I am because I won't see the evidence, and I throw around baseless accusations all the time:

    I accused these officers of perjury and obstruction of justice, with no video. How am I to know they didn't perceive a rickety wooden staircase in the heat of a contested arrest?

    I accused this officer of wanton cruelty to animals, not knowing, in fact, whether the dog was an all-but-rabid beast which needed to be put down for the benefit of society.

    And so on and so forth. In this post, I took the word of a political nutcase against honest, upstanding law enforcement officers, merely because he had audiotape, not videotape.

    I'll note that you've taken similar stances, on less evidence, against law enforcement officers who (based on the the hearsay evidence you presented in your post) it seemed clear to me were criminals.

    Let me tell you what I believe is at work in your assessment of the case. This is a hotly political case, which has already produced riots. As a concerned citizen of California, certainly better informed than most about human nature, the law, and the actual impossibility of knowing another's thoughts, you take a commendable stance against a rush to criticism or judgment, and also wish to inform others of what the law actually is. You recognize that most jurors are conscientious people, that this was a tortuous decision, and you want people to know that. All of that I commend and agree with.

    For all that, if this had happened in North Carolina, you'd be on the side of the fence I stand on now, and I'd be the one cautioning care and informing people of the law.

    We're of course commenting on probabilities, but I've seen enough to have a strong opinion, strong enough that I'm willing to say this officer committed voluntary manslaughter at the least. As a disinterested outsider, I'm willing to say so.

    I also believe, beyond a reasonable doubt, that OJ Simpson murdered his ex-wife and a bystander. And I believe that officers in the Rodney King case used excessive force and willfully stood by while others brutalized the man. I base my beliefs primarily on what I saw on television, interpolated through the lens of experience, because I wasn't in either courtroom.

    For what it's worth, and taking a page from my own state's playbook, I believe, beyond a reasonable doubt, that though Michael Nifong was never charged with obstruction of justice and willful failure to discharge the duties of his office, he's guilty of both offenses. I'm as confident in saying that as I am in the existence of Charon, which I'm told is a moon orbiting Pluto.

  19. David says:

    Charon and Pluto jointly orbit a point somewhere between the two, just like Nifong and his hand mirror.

  20. Mahan Atma says:

    "Mehserle claims that he mistakenly grabbed his Glock rather than a taser."

    It wasn't a Glock, it was a Sig Sauer P226.

  21. Federale says:

    Well for involuntary manslaughter you still have to have the crime:

    1 The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);

    I don't see the crime Mehserle committed to warrent involuntary manslaughter.

  22. mojo says:

    Shouldn't he be found "incredibly stupid" for putting his taser right next to his service piece? Or was that the Oakland PD's bright idea?

  23. Rich Rostrom says:

    We expect police officers to confront and suppress violent criminals and maniacs. We expect them to intervene in chaotic incidents, and to use potentially lethal force as necessary to protect the public, often on the basis of a split second perception.

    If we treat every mistake (or apparent mistake) by police as a crime to be punished, the effect will be that police will be very reluctant to act when there is any chance of such blowback. "Let the criminals run wild – why should I risk firing and jail time?"

  24. PLW says:

    Who wants to treat every mistake as a crime? I'd be happy with treating every crime as a crime and every mistake as a mistake, but I'm enough of a realist to hope we can treat some of the (worst) crimes as crimes and make do with that.

  25. OJG III says:

    Oscar Grant was not cuffed. Please keep the facts the facts.