When prosecutors indict police officers for the murder of unarmed civilians, they realize that colossal pitfalls may impede a conviction, no matter how cut-and-dried the evidence.
The pitfalls are certainly there in the case of former BART police officer Johannes Mehserle. Mehserle is charged in the (videotaped) New Year's Day 2009 killing of Oscar Grant, a young African American, on a Bay Area Rapid Transit station platform.
Compelling video footage shows an unarmed and handcuffed Grant face down on the BART platform. Grant does not appear to be resisting the officers. And numerous witnesses confirmed that Grant posed no threat to the officers.
BART officials offered the weak explanation that Mehserle mistakenly thought that he was reaching for his Taser gun. If Mehserle had been a civilian and committed murder with this overwhelming amount of witness testimony and video footage, his implausible explanation for the deadly shooting would never have been taken seriously. Instead, he would have been swiftly convicted and imprisoned.
But that didn't happen. Mehserle's a cop. That's the first pitfall.
There have been hundreds of civilians killed by police officers in California in the past decade. Although, in many of the killings, the civilians gunned down were unarmed and not in the process of committing a crime, no officer has been charged with murder.
Mehserle is the first in the past two decades to be charged. The second pitfall to convicting cops charged with deadly force is the use of video footage.
Defense attorneys who represent cops charged in suspicious fatal shootings have made the undermining of videotaped evidence into a science. In a number of these highly charged cases nationwide, skilled defense attorneys have managed to win acquittals.
They tell jurors that the videos are grainy and fuzzy, the sound and quality are poor, the tapes have missing pieces, and that they omit the scenes which show what provoked the officer to use force. They pound home that videos can be interpreted in many different ways. Defense attorneys also question the honesty, motives and background of those who videotaped such incidents.
They will do the same in the Grant killing.
The next pitfall is the investigation. Police officials and prosecutors move at a deliberately glacial pace in compiling evidence, witness testimony, and officer statements.
The time delay works to the officer's advantage. It ensures that his version of why officers used force lines up with the version given by other officers present. Mehserle's quick resignation after the Grant shooting further blurred matters. He evaded an internal investigation.
Defense attorneys wasted no time in asking for and getting Mehserle's trial moved out of the Bay Area. The aim, of course, was to get the most cooperative jury, judge and trial surroundings. Defense attorneys may have gotten all three when the trial was moved to Los Angeles.
It's a city where few are familiar with the case in detail, the jury pool reportedly has fewer African Americans and Latinos than in the past. Also, a judge believed to have shown excessive leniency toward LAPD officers in the Rampart scandal has been assigned to the case.
The key, though, is the jury in police misconduct trials. Police defense attorneys try to get as many middle-class whites on panels as possible.
The presumption is that they are much more likely to believe the testimony of police and prosecution witnesses than black or young witnesses, defendants or even the victims themselves. This is no small point.
The great majority of deadly force killings are of young African Americans or Latinos. The witnesses generally are young and of color. That's the case in the Grant killing.
Mehserle's attorneys scored another legal coup in successfully barring any mention by prosecutors of his documented past history of violence and provocative acts.
The greatest pitfall is the muddled standard of what is or isn't acceptable use of force. It often comes down to a judgment call by the officer. In the Rodney King beating case in 1992, defense attorneys turned the tables and painted King as the aggressor, claiming that the level of force used against him was justified.
In the Sean Bell killing in New York City in 2007, attorneys claimed that Bell and his companions were trying to run them down, causing officers to fear for their lives. Mehserle's attorneys almost certainly will use the same playbook with Grant.
These are the daunting pitfalls to convicting Mehserle. But these are pitfalls that a diligent and determined prosecution must overcome.
Still from Oscar Grant shooting cell phone video from Operation Small Axe theatrical trailer by 393films.
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